CALIFORNIA COURTS OF APPEAL 

Arbitration

Folke v. Pulliam (2023) _ Cal.App.5th Supp. _ , 2023 WL 7179443: The Court of Appeal reversed the trial court’s order denying plaintiff’s petition to vacate the arbitration award—the award provided that defendant was entitled to recover all fees paid to plaintiff—in an attorney fee dispute under the Mandatory Fee Arbitration Act (MFAA; Bus. & Prof. Code, 6200 et seq.) The trial court denied the petition, concluding it lacked jurisdiction because plaintiff had not timely served the petition to vacate within 100 days of service of the arbitration award as required by Code of Civil Procedure, section 1288.2. The Appellate Department disagreed, concluding that under Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, the failure to timely serve the petition to vacate was not jurisdictional, and plaintiff’s request for equitable relief should have been considered by the trial court. Plaintiff requested equitable relief from the untimely service of his petition based upon multiple and unsuccessful attempts of service, and also based on defendant having had actual notice of the action as evidenced by her opposition to the petition. The case was remanded to the trial court for it to take evidence and assess the three factors for equitable tolling of a statute of limitations: (1) timely notice to the opposing party, (2) lack of prejudice to the opposing party, and (3) reasonable and good faith conduct by the moving party. (Appellate Division of the Los Angeles Superior Court, October 6, 2023.)

Attorney Fees 

Zarate v. McDaniel (2023) _ Cal.App.5th _ , 2023 WL 8182862: The Court of Appeal reversed the trial court’s order awarding plaintiffs $13,000 in attorney fees and costs after it concluded that defendant’s anti-SLAPP motion to strike plaintiffs’ complaint was frivolous. The Court of Appeal, however, reversed the attorney fee award because plaintiffs did not comply with Code of Civil Procedure section 128.5(f)’s safe harbor provision which required them to serve their sanction motion on defendant before it was filed with the court, and give defendant 21 days to correct or withdraw the challenged anti-SLAPP motion. Plaintiffs did not do this. Instead they waited to file their sanctions motion until after the court had denied the anti-SLAPP motion. Under these facts, Plaintiffs were not entitled to attorney fees and the trial court was directed to deny plaintiffs’ request for attorney fees and costs. (C.A. 2nd, November 27, 2023.)

Snoeck v. Exak Time Innovations (2023) _ Cal.App.5th _ , 2023 WL 7014096: The Court of Appeal affirmed the trial court’s order awarding plaintiff $686,795.62 in attorney fees after plaintiff obtained a verdict, following a jury trial, of $130,088 in his disability discrimination action. Plaintiff requested an award of $2,089,272.50 in attorney fees. The trial court applied a .4 negative multiplier to its $1,144,659.36 adjusted lodestar calculation to account for plaintiff’s counsel’s lack of civility throughout the entire course of the litigation, awarding fees totaling $686,795.62. The Court of Appeal held that a trial court may consider an attorney’s pervasive incivility in determining the reasonableness of the requested fees, and may apply, in its discretion, a positive or negative multiplier to adjust the lodestar calculation (a reasonable rate times a reasonable number of hours) to account for various factors including attorney skill. The record in this case amply supported the trial court’s finding that plaintiff’s counsel was repeatedly, and apparently intentionally, uncivil to defense counsel, and to the court, throughout the litigation. (C.A. 2nd, filed October 2, 2023, published October 25, 2023.)

Civil Procedure

Vargas v. Gallizzi (2023) _ Cal.App.5th _ , 2023 WL 6781376: The Court of Appeal affirmed in part, and reversed in part, the trial court’s post-trial orders, following a jury trial in a personal injury case where the jury awarded plaintiffs $15,125 in damages. The trial court denied plaintiffs’ request for $350,000 in attorney fees and costs pursuant to Code of Civil Procedure section 2033.420 based on defendant’s failure to admit requests for admission regarding the medical records, a timeline of treatment, and causation, and awarded defendant $28,547.66 in costs pursuant to Code of Civil Procedure section 998. The Court of Appeal disagreed, concluding that the trial court erred by denying plaintiffs’ motion for expenses pursuant to section 2033.420. Code of Civil Procedure section 2033.420(a), provides expenses shall be awarded if the party requesting the admission “thereafter proves the genuineness of that document or the truth of that matter” and the statute contains no requirement the proof be made at trial. During a pretrial hearing the trial court ruled the medical records would be considered business records and plaintiffs therefore proved the matter. The trial court erred by finding plaintiffs were precluded from receiving cost-of-proof expenses because defendant, after the pre-trial ruling, had not disputed the medical records’ status as business records at trial. Having found plaintiffs proved the medical records were business records, section 2033.420 required expenses be awarded unless one of the exceptions was established. The Court of Appeal concluded that none were. Although plaintiffs’ counsel had failed to establish the medical records were business records in a prior trial, defendant had no reasonably held good faith belief she could prevail on the merits of the business records issue. The Court of Appeal affirmed the trial court’s award of costs to defendant section 998. The case was remanded for the trial court to determine the amount to which plaintiffs were entitled for proving the medical records were business records. (C.A. 2nd, October 13, 2023.)

Employment

Arce v. The Ensign Group, Inc. (2023) _ Cal.App.5th _ , 2023 WL 6890702: The Court of Appeal reversed the trial court’s order granting defendants’ motion for summary judgment in plaintiff’s action under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). The trial court granted summary judgment concluding that plaintiff had not offered any competent proof that one or more cognizable Labor Code violations occurred during her employment in connection with her right to meal and rest periods. The Court of Appeal disagreed, holding that the trial court erred in granting summary judgment because defendants did not meet their initial burden of establishing plaintiff’s lack of standing. It was not enough for defendants to show that plaintiff had not been denied a meal or rest break during the year before she submitted her PAGA notice. They also needed to establish that plaintiff had been paid all outstanding meal and rest premiums—either before or after her termination. Defendants needed to provide evidence that either (1) plaintiff had never suffered a Labor Code violation, and thus, no premiums were due upon her termination, or (2) they paid all premiums at the time of the violations, so no additional monies were due plaintiff upon her termination. (C.A. 2nd, filed September 19, 2023, published October 19, 2023.)

Landlord – Tenant

Castaic Studios v. Wonderland Studios (2023) _ Cal.App.5th _ ,
2023 WL 7592532: The Court of Appeal affirmed the trial court’s order sustaining defendant’s demurrer, without leave to amend, to plaintiff’s unlawful detainer action. Plaintiff and defendant entered into an agreement where plaintiff granted defendant the “exclusive right to use” certain 

areas of its commercial property. The agreement specified that it was a “license agreement,” as opposed to a lease, with plaintiff retaining legal possession and control of the premises. The agreement was to be governed by the contract laws and not by the landlord tenant laws. After defendant defaulted, plaintiff filed an unlawful detainer action seeking possession of the property. The trial court properly sustained defendant’s demurrer without leave to amend because plaintiff had waived its right to pursue the remedy of unlawful detainer. (C.A. 2nd, November 15, 2023.)

Torts

Brancati v. Cachuma Village, LLC (2023) _ Cal.App.5th _ , 2023 WL 6803375: The Court of Appeal reversed the trial court’s order granting defendant’s motion in limine to disqualify plaintiff’s medical expert in her action for personal injuries due to toxic mold exposure. The trial court granted defendant’s motion, concluding that plaintiff’s medical expert was not qualified to testify on whether toxic mold exposure was the medical causation of plaintiff’s illnesses. The Court of Appeal disagreed. Because the medical expert was qualified and his opinion was based on facts and a differential diagnosis, the trial court erred in excluding his expert opinion testimony. (C.A. 2nd, October 16, 2023.)

Jones v. Regents of the University of California (2023) _ Cal.App.5th _ , 2023 WL 8229170: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in plaintiff’s action for personal injuries. Plaintiffs sued defendant after plaintiff Rose Jones (Rose), an employee of defendant, was injured while riding her bike on University grounds on her way home from work. The trial court properly granted the motion for summary judgment. Rose’s exclusive remedy was workers’ compensation because the “premises line” rule extended her course of employment until she left the University’s premises. (C.A. 4th, filed October 31, 2023, published November 28, 2023.) n