Key Decisions

June 2012 – All Articles, Full Text On the Web

(filed under: | June 16, 2012)

The Duty To Defend Exists When Part Of A Lawsuit Is Potentially Covered

Health Net Inc. v. RLI Insurance Company
(Cal. Ct. of App., 2d Dist.), filed May 22, 2012


Health Net, Inc. and its various subsidiaries are in the health insurance business. They insure individuals through health plans provided by their employers. When individual insureds sought health care outside of the approved network, Health Net reimbursed them based on a percentage of usual, customary and reasonable charge for that care. In determining the usual, customary and reasonable charges for any particular medical procedure, Health Net used databases provided by an outside company.

Health Net, Inc. and its various subsidiaries were sued in several class actions based on allegations that they underpaid claims. The lawsuits variously alleged that Health Net underpaid claims because (1) the database it used for computing reimbursable health care costs were inherently flawed and impermissibly skewed so that the “usual, customary and reasonable” cost figures came out lower than they should, (2) it used outdated databases in violation of the law, and (3) it engaged in other practices to deprive insureds of benefits.

During the course of the litigation, the court sanctioned Health Net for discovery abuse. As a sanction, the court ruled that it was an established fact that Health Net knowingly and willfully used outdated databases.

At the time, Health Net was insured under an assortment of primary and excess liability insurance policies.

Under the insuring clause, the policies covered Damages for Claims made and reported during the policy period, for Wrongful Acts. The definition of “Claims” included lawsuits, written notices of claims, or written notices of facts which may reasonably be expected to give rise to claims. There was a standard provision for the insurer to pay defense costs. However, that was superseded by a “Choice of Counsel Endorsement” which permitted the insured to hire its own counsel and be reimbursed by the insurer. The policies excluded any Claim arising out of dishonest acts.

The dishonest acts exclusion provided: “This policy does not apply to any Claim: (a) arising out of or alleging any criminal, malicious, dishonest or fraudulent act, error or omission of any Insured; however, the Insurer shall defend Claims alleging fraud, dishonesty, malicious or criminal acts, errors or omissions up until a judgment, ruling at law, finding in fact, plea bargain or plea of no contest, at which point the Insurer shall be reimbursed for the expenses incurred in defending such Claims; however, this exclusion shall not apply to any Insured who did not personally commit, participate in committing or personally acquiesce in or remain passive after obtaining personal knowledge of one or more acts, errors or omissions excluded herein.”

Health Net sued various of its insurers for failure to defend based on their failures to reimburse its defense costs and failure to indemnify. Health Net moved for a summary adjudication.

The trial court found that the term “Claim” referred to the entirety of the lawsuit, not to individual claims for wrongdoing contained within the lawsuit. It further found that the sanction order established Health Net committed a dishonest act. The trial court found that Health Net had not established a right to be reimbursed for its defense costs. It therefore denied Health Net’s motion.

Based on the trial court’s reasoning, the insurers brought their own motions for summary adjudication or summary judgment. The trial court found that the insurers had no duty to defend or indemnify and granted the motions.


The Court of Appeal reversed and remanded. It found that the insurers had not established the absence of a potential for an award of covered damages. It therefore found that there was a duty to defend, which in the particular case, meant a duty to reimburse Health Net’s defense costs. As such, they were not entitled to a summary adjudication.

The court reasoned that most of the claims in the underlying lawsuits were for policy benefits owed. These were “simply not covered.” However, some of the claims against Health Net were for additional damages based on other grounds. The court noted that attorney’s fees that the claimants might recover from Health Net would be covered only to the extent that they arose from claims that were covered.

As to the dishonest acts exclusion, the court rejected the insurers’ contention that “Claim,” as used in the policy meant the entire lawsuit rather than to individual claims being asserted in a lawsuit. Thus, the court’s determination in the underlying case that Health Net had knowingly and willfully used outdated databases did not negate coverage for the entirety of the claims.

The court also reasoned that the dishonest acts exclusion barred coverage for only some of the claims and damages. Health Net’s liability for using outdated databases was a liability arising out of a dishonest act because the court in the underlying action found it had knowingly and willfully used an outdated database. However, since the court in the underlying action did not make findings on other aspects of the claims against Health Net, the insurers had not established, for summary judgment purposes, that there was no coverage, whatsoever.

The court found that the insurers had a duty to reimburse Health Net for its defense costs to the extent those were attributable to the defense of claims that were potentially covered, i.e. not for payment of benefits that had been withheld or for damages arising from the use of outdated databases. In a footnote, the court remarked on what fees were reimbursable, saying: “Certainly, those defense costs attributable to ‘years . . . of discovery abuses’ were not ‘reasonable and necessary fees,’ for which HN-INC can legitimately seek compensation from its insurers.”


This decision addresses relatively uncommon policy language. Its analysis of the duty to indemnify and the duty to defend track the analysis typically done with claims under CGL policies. The insurers made some novel arguments relative to what a “claim” is, but the court rejected these in favor of interpretations consistent with interpretations under CGL policies.

One potentially noteworthy aspect of this case is the court’s comments on defense fees attributable to discovery disputes: “Certainly, those defense costs attributable to ‘years…of discovery abuses’ were not ‘reasonable and necessary fees,’ for which HN-INC can legitimately seek compensation from its insurers.”


Intentional Interference With An Expected Inheritance Is Actionable

Beckwith v. Dahl
(Cal. Ct. of App., 4th Dist.), filed May 3, 2012


Brent Beckwith and his partner, Marc Christian MacGinnis, were in a long-term, committed relationship for almost 10 years. They leased an apartment together and were occasional business partners. MacGinnis had no children and his parents were deceased. His sister, Susan Dahl, with whom he had an estranged relationship, was his only other living family. At some point during their relationship, MacGinnis showed Beckwith a will he had saved on his computer. The will stated that upon MacGinnis’s death, his estate was to be divided equally between Beckwith and Dahl. MacGinnis never printed or signed the will.

In May 2009, MacGinnis’s health began to decline. On May 25, 2009, MacGinnis was in the hospital awaiting surgery to repair holes in his lungs. He asked Beckwith to locate and print the will so he could sign it. Beckwith went to their home and looked for the will, but he could not find it. When Beckwith told MacGinnis that he could not locate the will, MacGinnis asked Beckwith to create a new will so he could sign it the next day. That night, Beckwith created a new will for MacGinnis using forms downloaded from the Internet. The will provided that MacGinnis’ estate be divided equally between Beckwith and Dahl.

Before Beckwith presented the will to MacGinnis, he called Dahl to tell her about the will and e-mailed her a copy. Later that night, Dahl responded to Beckwith’s e-mail urging that MacGinnis use a living trust to divide his property in the event of his death. Dahl stated: “I have [two] very good friends [who] are attorneys and I will call them tonight.” After receiving the e-mail, Beckwith called Dahl to discuss the details of the living trust. Dahl told Beckwith not to present the will to MacGinnis for signature because one of her friends would prepare the trust documents for MacGinnis to sign “in the next couple [of] days.” Beckwith did not present the will to MacGinnis.

Two days later, on May 27, MacGinnis had surgery on his lungs. Although the doctors informed Dahl there was a chance MacGinnis would not survive the surgery, the doctors could not discuss the matter with Beckwith since he was not a family member under the law. Nor did Dahl tell Beckwith about the risks associated with the surgery. Dahl never gave MacGinnis any trust documents to sign. After the surgery, MacGinnis was placed on a ventilator and his prognosis worsened. Six days later, Dahl, following the doctors’ recommendations, removed MacGinnis from the ventilator. On June 2, 2009, MacGinnis died intestate. He left an estate worth over $1 million.

As MacGinnis’ only living relative, Dahl inherited the entire estate.

Beckwith sued Dahl alleging intentional interference with an expected inheritance (IIEI), deceit by false promise, and negligence. In the complaint, Beckwith asserted Dahl interfered with his expected inheritance of one half of MacGinnis’s estate by lying to him about her intention to prepare a living trust for MacGinnis to sign. Beckwith further alleged Dahl made these false promises in order to “caus[e] a sufficient delay to prevent [MacGinnis] from signing his will before his surgery” because she knew that if MacGinnis died without a will, she would inherit the entire estate. Finally, Beckwith claimed that as a result of his reliance on Dahl’s promises, “he was deprived of his . . . share of [MacGinnis’s] estate,” and because he had no standing in probate court, a civil action against Dahl was his only remedy.

Dahl demurred to all three causes of action. As to the IIEI cause of action, she argued the “claim fails on its face” because “California does not recognize a cause of action for ‘interference with inheritance.’” Further, Dahl argued California should not recognize such a cause of action because doing so would “be inconsistent with already established legal principals embodied in the probate arena and other areas of the law.” Dahl demurred to the fraud cause of action alleging her statements regarding the preparation of trust documents were too vague to constitute actionable fraud, Beckwith’s damages were not caused by her statements, and Beckwith did not have a vested interest in MacGinnis’s estate. Finally, Dahl’s demurrer to the negligence claim alleged Beckwith had not pled the requisite duty or causation to state a claim.

The trial court sustained Dahl’s demurrer and dismissed.


The Court of Appeal reversed. In doing so, it recognized a new tort in California: intentional interference with an expected inheritance (IIEI).

To state a claim for IIEI, a plaintiff must allege five distinct elements.

First, the plaintiff must plead he had an expectancy of an inheritance. It is not necessary to allege that “one is in fact named as a beneficiary in the will or that one has been devised the particular property at issue. That requirement would defeat the purpose of an expectancy claim. It is only the expectation that one will receive some interest that gives rise to a cause of action.” Second, as in other interference torts, the complaint must allege causation. “This means that, as in other cases involving recovery for loss of expectancies . . . there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator . . . if there had been no such interference.” Third, the plaintiff must plead intent, i.e., that the defendant had knowledge of the plaintiff’s expectancy of inheritance and took deliberate action to interfere with it. Fourth, the complaint must allege that the interference was conducted by independently tortious means, i.e., the underlying conduct must be wrong for some reason other than the fact of the interference. Finally, the plaintiff must plead he was damaged by the defendant’s interference.

Additionally, an IIEI defendant must direct the independently tortious conduct at someone other than the plaintiff . . . . In other words, the defendant’s tortious conduct must have induced or caused the testator to take some action that deprives the plaintiff of his expected inheritance.

In recognizing the new tort, the court observed that tort law is not static and when a new tort deserves recognition, it will be recognized. It noted that “Twenty-five of the forty-two states that have considered it have validated it.”

The court considered the relevant policy considerations and balance the benefits of recognizing a new tort against any potential burdens and costs that recognition of the tort would bring.

The tort of IIEI developed under the “general principle of law that whenever the law prohibits an injury it will also afford a remedy.” This is consistent with the maxim of California jurisprudence that, “[f]or every wrong there is a remedy.” It is also consistent with the principle that “[e]very person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.”Lucas v. Hamm, 56 Cal.2d 583 (1961) holds that intended beneficiaries of wills can recover in tort against a negligent drafter of the will despite a lack of privity, because if such plaintiffs were precluded from bringing a tort claim, no one would be able to do so and the policy of preventing future harm would be impaired, supported the creation of a new remedy.

The court considered that “recognition of the IIEI tort could enable plaintiffs to usurp a testator’s true intent by bypassing these stringent probate requirements.” However, a balance can be achieved by prohibiting a tort action where the remedy of a will contest is available and would provide the injured party with adequate relief.

In balancing the benefits and burdens of recognizing a new tort, the court considered the factors that led the California Supreme Court to reject torts of spoliation of evidence. The factors that led to the rejection of spoliation of evidence claims supported the creation of a new IIEI tort claim. And, the factors that supported other torts based on expectations, such as interference with prospective economic advantage, supported the creation of an IIEI tort claim.

Apart from recognizing a new tort, the court held that Beckwith’s complaint against Dahl adequately alleged a cause of action for fraud in that she made representations that induced him to delay having MacGinnis execute the will he had wanted to execute.


Although the court recognized a new tort, this case is not over. Beckwith might still have difficulty pleading and proving all of the elements of that new tort. A cause of action for IIEI requires that the defendant’s conduct be directed toward the testator, and Beckwith may not be able show that Dahl directed any conduct toward MacGinnis.


An Unlicensed Caretaker Does Not Fall Outside Overtime Exemption Merely Because She Took Temperature, Pulse And Blood Sugar

Cash v. Winn
(Cal. Ct. of App., 4th Dist.), filed May 14, 2012, published May 14, 2012


Joy Cash was hired as one of two caregivers to care for nonagenarian, Iola Winn. Cash took care of Winn in Winn’s home. Cash was not a licensed or trained nurse.

When Cash interviewed for the position, the Winn family members told her they were looking for someone to be Winn’s “companion and check on her and let them know how she was doing, and prepare nutritious meals that would be good for her diabetes.” Cash was paid $10 per hour, and typically stayed with Winn 18 hours a day.

Cash’s primary tasks during her employment with Winn were helping Winn with grooming, dressing, preparing meals, grocery shopping, picking up medication, helping Winn get ready for bed, and reminding Winn to take her medications. She did, however, perform other minor housekeeping chores, including cleaning the kitchen, doing the laundry, cleaning the bathroom, taking out the trash, arranging and supervising worker appointments, and buying “household supplies.”

Cash would give Winn massages to relax her before her bedtime and because she felt massages were good for the blood flow. She would also take Winn’s vital signs, for “evaluative purposes” but would not track these. And, she would use an over-the-counter test kit to measure Winn’s blood sugar levels.

After she left the employment, Cash sued Winn for failure to pay overtime wages.

At trial, the court instructed the jury that a personal attendant as defined in California law is exempt from overtime wages. The parties agreed that a personal attendant is someone who is employed to “supervise, feed, or dress a . . . person who by reason of advanced age, physical disability, or mental deficiency needs supervision.” The parties also agreed that this status applies only “when no significant amount of work other than the foregoing is required,” and that the phrase “significant amount of work” means duties that constitute greater than 20 percent of the weekly work time.

Over Winn’s objections, the court also instructed the jury that status as a personal attendant did not apply to individuals who regularly perform any type of health care function:

Any worker whose employment duties require the regular administration of health care services such as the taking temperatures or pulse or respiratory rate, or similar health care functions, or the administration of prescription medication other than medication ordinarily self administered by an individual, regardless of the amount of time such duties take does not qualify for the “personal attendant” exemption.

The jury found that Cash spent less than 20% of her time doing “other work,” but that she did perform health care functions by taking Winn’s pulse, checking her blood sugar, etc. It thus entered judgment for Cash.


The Court of Appeal framed the issue before it as:

[W]hether a person, who is not a licensed nurse of any type (professional, registered, graduate, or trained) and whose work is primarily (more than 80 percent of the time) that of a personal attendant as defined above, loses his or her status as a personal attendant because the employee regularly performs any health care related services, such as taking a “temperature or pulse” or assisting with over-the-counter blood sugar tests.


[D]oes a caretaker for an elderly person fall outside the “personal attendant” definition merely by spending a few minutes each day on these routine health related tasks, even if the employee spends more than 80 percent of his or her time supervising, feeding, or dressing the elderly individual?

The court answered this issue with a resounding “No.”

After noting that nothing in California law creates a special exemption for such a caretaker, as contrasted with a registered nurse, the court said:

Moreover, such an interpretation would be inconsistent with the policy underlying the narrow personal attendant exemption rule, which seeks to control homecare costs for elderly individuals who need help with daily living activities and thus avoid the need for institutionalization, while maintaining the overtime pay requirements for all other types of domestic work.

Because Cash was not providing health care to Winn and because her “other work” took less than 20% of her time, Cash was exempt from overtime pay. Thus, Winn was entitled to a judgment in her favor.


This case seems to draw a bright line through Wage Order No. 15. A nurse is not exempt from overtime, but an unlicensed caregiver is.


An Employer’s Liability For Deducting Sums It Had Previously Erroneously Paid To An Employee From That Employee’s Wages Was Not Preempted By Federal Law

Sciborski v. Pacific Bell Directory
(Cal. Ct. of App., 4th Dist.), filed May 8, 2012 


Anne Sciborski worked for Pacific Bell selling advertising in its phone directories. She was a member of the International Brotherhood of Electrical Workers, AFL-CIO Local Union 2139 (Union), and the terms and conditions of her employment were governed by the collective bargaining agreement (CBA) between Pacific Bell and the Union.

Pursuant to the CBA, Sciborski received a basic weekly salary and a commission on completed sales. The CBA sets forth detailed rules governing commissions, including that “commissions are earned by employees only when the final commission rate and contract price applicable to a sale are determined by the Company, and all of the conditions to earn commissions have been satisfied.” The CBA further provides that “[u]ntil the commissions are earned, any commission payments made to employees . . . are advances to be applied against employees’ future earned commissions.”

Sciborski was assigned to a business customer, Expert Home Services. Expert Home Services purchased substantial advertising. All of the conditions for Sciborski to receive a commission on the sale were satisfied and she received a commission of $36,000.

Sometime after Sciborski received the commission, the union complained on behalf of its other members that Sciborski should not have been given the Expert Home Services account in the first instance. As a result, Pacific Bell concluded that Sciborski was not entitled to the commission and it started reimbursing itself out of Sciborski’s wages.

To prevent Pacific Bell from continuing to deduct money from her wages, Sciborski quit. She then sued. Among other things, she alleged Pacific Bell violated Labor Code section 221, which generally prohibits an employer from deducting earned amounts from an employee’s wages.

Pacific Bell did not dispute that Sciborski had fully satisfied all conditions to earning a commission on the Expert Home Services sale. Pacific Bell also agreed that if Sciborski had been properly assigned to the account, she would have been entitled to the full $36,000 commission. However, Pacific Bell argued that Sciborski never “earned” the commission because there was a clerical computer error and the account should not have been assigned to her in the first place. Pacific Bell acknowledged that it was responsible for the improper assignment.

The jury found in favor of Sciborski and awarded her the amount that Pacific Bell had deducted from her salary. The trial court then awarded her attorney’s fees.


The Court of Appeal affirmed.

The court first addressed Pacific Bell’s argument that Sciborski’s claims were not preempted by federal law. If Sciborski’s claims arose under the CBA, then they were preempted by federal law. If they arose under state law, they would still be preempted if application of state law required the court to interpret the CBA.

The court found that Sciborski’s claims arose under state law because state law prohibited an employer from deducting money from earned wages. It also found that there was no need to interpret the CBA as it was plain and clear about when a commission was earned and there was no question that the evidence established that the commission was earned and was not simply an advance against a potentially earned commission.

The fact that Pacific Bell made an error when it assigned the Expert Home Services account to Sciborski did not negate the fact that all of the conditions to her entitlement to the commission had been satisfied. Thus, Pacific Bell’s payment was not an advance and it did not have the right to deduct it from her earnings.

In addition to holding that Sciborski’s claims were not preempted, the court held that the trial court did not abuse its discretion in awarding attorney’s fees. As a prevailing plaintiff, Sciborski was entitled to reasonable fees. The trial court awarded fees based on Sciborski’s attorney’s hourly rate multiplied by the hours expended. Although the trial court could have increased the fees by a “loadstar” amount, it was not obligated to do so if it concluded that such an increase was not warranted. Likewise, although it could have found either the hourly rate was high or the number of hours worked was excessive, the trial court was not obligated to do so.


The court obviously did not accept Pacific Bell’s attempt to treat the commissions as a gift. If this was an hourly employee who had been assigned to “the wrong job,” no right thinking employer would try to take those wages back.


A Plaintiff Was Entitled To A Default Judgment On A Contract With Definite, Fixed Damages

HSBC Bank Nevada, N.A. v. Aguilar
(App. Div. Los Angeles Sup. Ct.), filed April 16, 2012, modified May 15, 2012


HSBC Bank of Nevada sued Lizet Aguilar for breach of contract and common counts of open book account and account stated. It did so based on Aguilar’s failure to make her credit card payments. It sought $2,290.37 plus interest and attorney fees according to proof.

HSBC Bank used the California Judicial Council-approved form for pleading its causes of action, and checked the appropriate boxes on the form.

Aguilar failed to respond to the complaint. HSBC Bank sought entry of default and a clerk’s judgment. The clerk entered Aguilar’s default, but refused to enter judgment. The clerk’s reject sheet referenced California Rules of Court, rule 3.1806, and instructed HSBC Bank to submit either the “original promissory note or contract” or, if the original were not available, to submit “a declaration of lost original.”

When HSBC failed to do so, the court dismissed its case.


The Appellate Division of the Superior Court reversed and ordered the trial court to order the court clerk to enter a default judgment per HSBC Bank’s request.

The Appellate Division of the Superior Court framed the question as to whether HSBC Bank was required to present any proof in order to obtain a default judgment against Aguilar. In answering this, it noted that California Rules of Court, rule 3.1806 applies to negotiable instruments, and is not applicable to contracts or open book accounts. It explained that the purpose of rule 3.1806 is to ensure that, where the parties’ rights on a written instrument are merged into a judgment, the clerk clearly indicates the merger on the face of the instrument so that the instrument cannot be passed on to another who might seek to collect on it.

Code of Civil Procedure section 585(a), provides in pertinent part:

In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has . . . been served, other than by publication, and no answer, . . . has been filed with the clerk of the court within the time specified in the summons, . . . the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant . . . so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint, . . . or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant, . . .

As a result, Aguilar’s default admitted that HSBC Bank’s complaint was on open book account with $2,290.37 due and owing. All that was left to do was for the clerk to enter judgment in the amount of the open book account as alleged in the complaint.


In publishing this decision, the Appellate Division of the Superior Court undertook to assist the Court of Appeal in deciding whether to order the case transferred to the court on the court’s own motion under rules 8.1000-8.1018.

The decision makes sense and is not inconsistent with the decision of the Court of Appeal for the Fourth Appellate District in Kim v. Westmoore Partners, 201 Cal.App.4th 267 (2011). Although the court admonished that “it is incumbent upon plaintiff to prove-up his damages, with actual evidence,” it did so in the context of an action in which the plaintiff sought damages beyond some definite, fixed amount or a sum that could be ascertained by computations made by the clerk.


Other Cases Of Interest

An Unlicensed Driver Was Considered Insured And Entitled To Noneconomic Damages Because She Was Driving With The Owner’s Permission

Landeros v. Torres
(Cal. Ct. of App., 5th Dist.), filed May 24, 2012 

Rocio Landeros was a minor and was not licensed to drive. Nonetheless, she was driving a car owned by her father. While driving, with Marta Perez as a passenger, Landeros and Perez were struck by a vehicle driven by Gustavo Torres. Landeros suffered serious and permanent brain damage.

In the ensuing lawsuit, a jury awarded Landeros a total of $31,656,208 and awarded Perez $77,986.55.

Torres challenged this award. He asserted that Landeros did not have liability insurance and that as a result, under Civil Code, §3333.4, she was barred from recovering $22 million in noneconomic damages awarded to her by the jury.

Although Landeros had never obtained liability insurance, the vehicle Landeros was driving when the collision occurred had been purchased by Miguel Landeros four days before the collision and he had obtained insurance as required by California’s financial responsibility laws and then provided the vehicle to Landeros for her use.

The Court of Appeal affirmed. It found that Landeros was insured because she was using the car with Miguel Landeros’ permission and there was nothing in the policy that required someone be licensed to be deemed insured or that excluded coverage for unlicensed drivers.

The court distinguished cases in which a driver was deemed uninsured because the relevant policy contained an express endorsement identifying the person by name and excluding coverage for that person.


If An Application For Insurance And The Policy Contain The Right Language, It Can Properly Use A Two-Tier System For Paying A Property Damage Claim

Ortega v. Topa Insurance Company
(Cal. Ct. of App., 2d Dist.), filed May 24, 2012, published May 24, 2012

Eric Ortega owned a 2003 Mercedes Benz E320. It was insured under an insurance policy issued to Ortega by Topa Insurance Company. The policy provided coverage for loss of or damage to the vehicle on a two-tier basis. Topa agreed to pay all of the reasonable costs incurred if repairs were done at one of its preferred repair facilities, but only 80 percent of the reasonable costs incurred if the repairs were done at an unapproved repair facility selected by the insured. The policy also provided that in determining the amount necessary to restore damaged property to its pre-loss condition, the estimate would be based upon the prevailing competitive labor rates and “the cost of repair or replacement parts, which may be new, refurbished, restored, or used, including, but not limited to: (1) original manufacturer parts or equipment; and (2) nonoriginal manufacturer parts or equipment.”

Ortega’s car was vandalized. As a result, he made a claim under his policy. Topa’s claims administrator advised Ortega of the limitations in his policy.

Because of the limitations in his policy, Ortega took his car to an approved facility. However, he was dissatisfied with the repairs. Among other things, the facility used after-market parts.

Ortega filed a class action lawsuit against Topa. He alleged the limited physical damage coverage provision in the policy violated Insurance Code section 758.5 (d)(2) and that the application for the policy violated the disclosure requirement of Section 758.5 (d)(1).

In several motions before class certification, the trial court determined that the Topa policy and application did not violate the Insurance Code and thereafter struck the class allegations.

The Court of Appeal affirmed. In what appears to be an issue of first impression, it concluded the insurance application met the statutory disclosure requirement and “prominently disclosed” to the applicant that the auto insurance policy he or she applied for includes a contract provision suggesting or recommending a particular automotive repair facility. It also concluded the limited physical damage coverage provision in the policy does not violate Section 758.5 (d)(2).

To the extent that policyholders used an authorized facility to repair their damaged vehicle and were not satisfied with the repairs because the facility did not return the covered vehicle to its pre-loss condition, the trial court did not err in concluding that the complaint did not allege common issues of fact.

By virtue of the foregoing, the trial court properly determined the case was not suitable for treatment as a class action.


The Manufacturer Of A Machine That Causes Asbestos Fibers To Be Released Into The Air Can Be Liable For Manufacturing A Defective Product

Bettencourt v. Hennessy Industries, Inc.
(Cal. Ct. of App., 1st Dist.), filed May 4, 2012 

Assorted plaintiffs sued Hennessy Industries on the theory that it manufactured and sold a brake arcing machine, designed and used exclusively for grinding brake linings, which contained asbestos, thereby releasing asbestos fibers into the air, thereby causing injuries to either themselves or their decedents.

The trial court ruled that, because Hennessey’s machine itself was not made with asbestos and Hennessy did not itself manufacture or distribute any product made with asbestos, the various plaintiffs had not, and could not, plead a viable cause of action against Hennessy for negligence or strict products liability.

The Court of Appeal reversed. A different division of the court that decided the case ofShields v. Hennessy Industries, Inc., reached the same result. The court recognized that generally, a manufacturer is not liable for injuries caused by defects in another manufacturer’s products. However, it also recognized an exception when the manufacturer’s product acts upon another manufacturer’s product and thereby causes the harm.

Since Hennessy’s grinding machine acted upon asbestos containing brake shoes and caused the harm complained of, the plaintiffs could state a cause of action.


The Manufacturer Of A Machine That Causes Asbestos Fibers To Be Released Into The Air Was Not Liable For Manufacturing A Defective Product

Barker v. Hennessy
(Cal. Ct. of App., 2d Dist.), filed May 22, 2012 

Richard Barker worked as a mechanic in an automotive repair garage. Asbestos-containing clutch components, brake linings and brake shoes were necessary component parts to the automobiles, trucks, tractors and heavy equipment on which he worked. Barker’s work included repairing, arcing, grinding, sanding, cutting, drilling and installing these asbestos products. In performing repairs, Barker worked with or near brake shoe arcing machines and brake drum lathes, which were manufactured by Hennessy’s predecessor Ammco Tools, Inc. Barker was diagnosed with asbestosis and asbestos-related lung cancer and died of those.

Barker’s widow and children filed a wrongful death action against Hennessy and others, alleging causes of action for negligence, strict liability, false representation, and concealment, as well as a survival claim. They alleged that Barker’s exposure to harmful respirable asbestos dust occurred as a result of Hennessy’s failure to warn of the dangers of such exposure.

Hennessy moved for summary judgment on the ground that its machines did not cause or create the risk of harm to which Barker was exposed. It argued that it could not be held liable for injuries caused by another’s inherently dangerous, asbestos-containing products, even if it was foreseeable that its machines would be used in conjunction with those products.

The trial court agreed and granted Hennessy’s motion.

The Court of Appeal affirmed.

The court relied on the recent California Supreme Court case of O’Neil v. Crane Co., 53 Cal.4th 335 (2012). There, the Supreme Court held that “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.”

The Court of Appeal reasoned that the undisputed evidence showed nothing more than that while it was foreseeable that Hennessy’s machines would be used with asbestos-containing products, it was not intended or inevitable that the machines would be used on them. The evidence showed that the machines could be used equally as well on products that did not contain asbestos.

The court distinguished the case of Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co.129 Cal.App.4th 577 (2004), which held a manufacturer owes a duty to warn of the risks created by the intended and necessary operation of its own products with other asbestos-containing products. The court reasoned that the machine at issue in the Tellez-Cordova case could only be used in a potentially injury-producing manner. In contrast, Hennessy’s machines were not so limited.

The court remarked that if Hennessy had a duty to warn that if its machines were used on materials containing asbestos, particles could be released into the air, manufacturers of saws would have a duty to warn that cutting asbestos-containing insulation could be harmful. Likewise, manufacturers of putty knives, wire brushes and metal scraps — products which created the release of harmful asbestos dust when used to scrape the asbestos-containing materials would have a duty to warn.

Significantly, the court observed:

Our conclusion is dictated by the record below. We recognize that a different result could be required if the evidence offered below had shown, for example, that Hennessy’s machines necessarily operated with asbestos-containing brake parts because non-asbestos-containing brake parts were not manufactured at the time Barker was exposed to asbestos dust. For this reason, our conclusion is not inconsistent with two recent First District cases holding that allegations concerning Hennessy’s machines were sufficient to state causes of action for strict liability and negligence.

The court further remarked: “Here, had appellants’ evidence created a triable issue as to the existence of the facts as alleged in Bettencourt and Shields, we would reach a different conclusion.”


A Property Owner Did Not Owe A Duty Of Care To Members Of The Family Of Workers Who Brought Asbestos Fibers Home On Their Work Clothing

Campbell v. Ford Motor Company
(Cal. Ct. of App., 2d Dist.), filed May 21, 2012, published May 21, 2012

Mary Campbell contracted mesothelioma as a result of her exposure to asbestos. The exposure resulted from laundering her father’s and brother’s asbestos-covered clothing during the time they worked with asbestos as independent contractors hired by Ford to install asbestos insulation at its Metuchen, New Jersey plant. At trial, the jury found Ford liable for 5 percent of the her damages and awarded her $40,000. Ford appealed.

The Court of Appeal reversed. It found that as a matter of law, Ford owed no duty of care to Campbell.

As to the element of a duty of care in a negligence action, the court said:

A fundamental element of any cause of action for negligence is the existence of a legal duty of care running from the defendant to the plaintiff.” The existence and scope of any such duty are legal questions for the court. “[D]uty is not an immutable fact of nature but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.

The court then went on to consider whether the sum total of policy considerations supported extending a duty of care to one such as Campbell. It concluded that regardless of anything else, the considerations that would lead to the imposition of a duty of care did not lead to the imposition of one.


A Ranch Owner Had No Duty To Prevent Cattle From Going Onto A Private Roadway On An Easement Across The Ranch

Thomas v. Stenberg
(Cal. Ct. of App., 1st Dist.), filed May 29, 2012 

Nelson Thomas was injured when he was charged and hit by a cow while his motorcycle was stopped on a private road that ran across the Stenbergs’ ranch. The road was on an easement across the Stenbergs’ property and belonged to persons other than the Stenbergs. The cow was not of a particularly aggressive breed and there had been no prior incidents of cows charging passersby.

The trial court granted the Stenbergs’ motion for nonsuit and entered judgment in their favor. It did so based on its finding that the Stenbergs did not owe Thomas a duty of care. The trial court noted that it had been unable to find any legal duty on the part of a landowner to construct a fence in this context, particularly in the absence of any prior event that would have alerted the property owner to the need to undertake such a measure.

The Court of Appeal affirmed. It concurred with the trial court that under the circumstances, the Stenbergs did not owe Thomas a duty of care.

The court considered the standards for the imposition of a duty of care, saying:

“[D]uty” is not an immutable fact of nature but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Some of the considerations that courts have employed in various contexts to determine the existence and scope of duty are: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’

Thomas did not directly address this analysis. Instead, he made three arguments as to why the Stenbergs should be liable.

First, Thomas argued that as owners of the easement, the Stenbergs should be liable to those injured while using it. The court rejected this argument, noting that while the Stenbergs owned the land on which the easement ran, they did not own the easement. Others owned the easement.

Next, Thomas argued that the Stenbergs should be liable as the owners of dangerous animals. The court noted: “Plaintiff next correctly notes that a keeper of an animal of a species that is dangerous by nature, or that a keeper knows or has reason to know has dangerous propensities or traits, may be found strictly liable to anyone injured as a result of those propensities or traits.” However, it rejected Thomas’ argument because there was no evidence cows are dangerous by nature or that the Stenbergs knew the cow had dangerous propensities. It noted: “Not surprisingly, plaintiff does not cite to any cases holding that Angus cows have an inherently dangerous nature, and our research has disclosed no such cases. In fact, relevant cases state the opposite.”

Finally, Thomas argued the Stenbergs had a duty under Food and Agricultural Code section 16904 to keep the road clear. The court rejected this argument because the particular road was a private road on an easement through the Stenbergs’ land. It noted that the owners of the easement, who were other than the Stenbergs, had never seen a need to erect a fence to keep grazing cattle off of the road.


To Prove A Non-Party Doctor’s Malpractice Was A Cause Of The Plaintiff’s Injuries, A Personal Injury Defendant Must Prove Every Element Of A Medical Malpractice Claim

Chakalis v. Elevator Solutions, Inc.
(Cal. Ct. of App., 2d Dist.), filed May 18, 2012 

Katerina Chakalis sustained personal injuries after the elevator in her apartment building malfunctioned and fell six floors. She sued: (1) Elevator Solutions, Inc. (ESI), the elevator maintenance company that serviced the malfunctioning elevator; (2) Fountain Springs Manor Home Owners Association; (3) Ross Morgan & Company, the property manager; and (4) Karim Merat, Ross Morgan’s agent.

At trial, the defendants sought to blame a substantial portion of plaintiff’s claimed injuries on the medical malpractice of a doctor, James Dahlgren. They sought to introduce evidence of Dr. Dahlgren’s malpractice. However, the trial court sustained Chakalis’ objections to questions posed to a defense expert.

The jury returned a mixed verdict. Although the jury awarded Chakalis damages, it found that ESI was not liable. The jury instead found that the homeowners association was 25 percent at fault; Ross Morgan and Karim Merat were 15 percent at fault; and Chakalis, herself, was 8 percent at fault. The jury also found that Dr. James Dahlgren, who was not even a defendant, was 52 percent at fault.

Chakalis appealed based on the fact that the jury attributed a portion of the fault to Dr. Dahlgren.

The Court of Appeal affirmed as to ESI, but reversed and remanded as to the remaining defendants. It held that the jury erred in attributing fault to Dr. Dahlgren because the defendants had failed to prove each element of a medical malpractice claim against him. (Since the jury found ESI was not liable, the misallocation of fault did not impact it.)

The court held that because Chakalis had improperly objected to the defendants’ efforts to prove Dr. Dahlgren committed medical malpractice, she had invited the error that resulted in the jury misallocating fault. As a result, she was not entitled to have the proportion of fault recalculated without a new trial at which the defendants could attempt to establish the elements of a medical malpractice claim.


A Partnership Can Be Liable To A Partner For Retaliation

Fitzsimmons v. California Emergency Physicians Medical Group
(Cal. Ct. of App., 1st Dist.), filed May 16, 2012 

California Emergency Physicians Medical Group (“CEP”) is a California general partnership with approximately 700 partners working in hospital emergency rooms throughout California. Mary Fitzsimmons was an emergency room physician and a member of the partnership. She was appointed a regional director and was elected to serve on the Board of Directors. However, her appointment as a regional director was subsequently terminated, purportedly in retaliation for reports she made to her supervisors that “certain officers and agents of CEP” had sexually harassed female employees of CEP’s management and billing subsidiaries.

Fitzsimmons sued CEP, its president and its chief operating officer alleging causes of action for retaliation in violation of public policy, breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty.

By the time of trial, the individual defendants had been dismissed and the sole remaining cause of action against CEP was for retaliation in violation of FEHA and public policy.

Before trial, the court ruled that if Fitzsimmons was a bona fide partner in CEP, she did not have standing to assert a cause of action for retaliation under FEHA against CEP. The jury found Fitzsimmons was a bona fide partner and entered judgment in favor of CEP.

The Court of Appeal reversed. It concluded that the trial court read the case of Jones v. Lodge at Torrey Pines Partnership, 42 Cal.4th 1158 (2008), too broadly.

In Reno v. Baird, 18 Cal.4th 640 (1998), the California Supreme Court held that a supervisor whose conduct renders the employer liable for employment discrimination under section 12940(a) of the FEHA cannot be held personally liable for the discrimination. The Torrey Pines case extended this to include liability for retaliation. However, the trial court appeared to have read the Torrey Pines case to say that partners or a partnership could not be liable for discrimination or retaliation.

The court held that because CEP was in a partnership relationship rather than an employment relationship with Fitzsimmons, it could not be liable for harassing or discriminating against her. However, it was in an employment relationship with the individuals who were being harassed and it could be liable to them. Further, it could be liable to Fitzsimmons for retaliating against her for her complaints.


To Be Effective To Trigger Its Cost Shifting Provisions, An Offer To Compromise Under Section 998 Must Include A Statement That It Can Be Accepted By Signing

Perez v. Torres
(Cal. Ct. of App., 5th Dist.), filed May 24, 2012 

Marta Perez was injured when the vehicle in which she was riding was struck by a vehicle driven by Gustavo Torres. During the course of the lawsuit that followed, Torres made a settlement offer. Perez did not accept the offer. Although Perez won the lawsuit, the jury awarded her less than the amount of Torres’ settlement offer. As a result, Torres sought an award of costs pursuant to Code of Civil Procedure section 998.

Under Section 998 where the plaintiff refuses the defendant’s offer and then fails to obtain a more favorable judgment, the plaintiff is precluded from recovering his or her costs incurred after the offer was made, and the defendant is entitled to recover his or her costs incurred after the offer was made. However, for this to happen, the offer must be a valid one.

Section 998 requires the offer to include “a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.”

Torres’ offer did not include a statement saying it could be accepted by signing a statement that the offer is accepted. As a result, the court held that Torres was not entitled to costs.


There Can Be Only One Prevailing Party In A Lawsuit And Only That Prevailing Party Is Entitled To Attorney’s Fees Under Civil Code Section 1717.

Frog Creek Partners, LLC v. Vance Brown, Inc.
(Cal. Ct. of App., 1st Dist.), filed May 24, 2012 

Vance Brown, Inc. agreed to build a multi-million dollar home for Jeffrey Drazan. Drazan formed his own limited liability company, Frog Creek Partners, to manage the construction project. Frog Creek ended up filing a suit against Brown, seeking damages for breach of contract, conversion, and other causes of action arising out of the construction project.

Brown filed a petition to compel arbitration. Brown also filed a cross-complaint against Frog Creek.

The trial court denied the petition to compel arbitration. The Court of Appeal affirmed.

Brown filed a second petition to compel arbitration. The trial court again denied the petition to compel arbitration. However, the Court of Appeal reversed and ordered that the matter be submitted to arbitration.

An American Arbitration Association panel issued a 65-page decision awarding Brown damages against Frog Creek of $1,905,902.90, plus $2,517,687.31 in attorney fees for the arbitration proceeding and $666,422.78 in costs. The arbitrators declined to rule on whether attorney fees and costs might be awarded for litigation activity before the arbitration. Frog Creek paid the arbitration award in February 2010, and the trial court entered judgment.

Brown filed a motion for attorney fees and costs pursuant to Civil Code section 1717, seeking $998,260 in pre-arbitration and post-arbitration costs and fees, including attorney fees for its unsuccessful petition to compel arbitration and the first appeal. Frog Creek filed a motion for $229,510.75 in attorney fees and costs pursuant to Section 1717 in connection with its successful opposition to that petition and the first appeal. Frog Creek argued it was the “prevailing party” on Brown’s unsuccessful effort to compel arbitration.

The trial court determined that Brown was the prevailing party in the arbitration and awarded Brown pre-arbitration attorney fees of $692,293 and post-arbitration fees of $96,000. The court determined that Frog Creek was the prevailing party on the initial petition to arbitrate and awarded Frog Creek attorney fees of $125,000, including fees for the Frog Creek I appeal. The court denied Brown the $128,000 in attorney fees that Brown had sought for those proceedings. The net award of pre-arbitration and post-arbitration attorney fees to Brown was $663,293.

Brown appealed the reduction in his award.

The Court of Appeal reversed and remanded.

Civil Code section 1717 governs awards of attorney fees based on a contract and authorizes an award of attorney fees “[i]n any action on a contract” to “the party prevailing on the contract” if the contract provides for an award of attorney fees. The party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.

The court held that, under Section 1717, there may only be one prevailing party entitled to attorney fees on a given contract in a given lawsuit. As such, the trial court could not award attorney fees to both parties on the same contract in the same lawsuit. Thus, it directed the trial court to award Brown reasonable attorney fees for the proceedings on its first petition to compel arbitration. It also directed the trial court to award Brown reasonable attorney fees on appeal. However, it noted that the award need not be in the amount requested by Brown.


The Statute Of Limitations On A Legal Malpractice Case Does Not Start To Run Until The Client Is Actually Injured By The Malpractice

Shifren v. Spiro
(Cal. Ct. of App., 2d Dist.), filed May 24, 2012 

Ken Shifren and his wife Barbara established a living trust for all of their property. Sometime later, they sought to amend the trust so that a property interest that Ken stood to inherit from his mother would remain his separate property. They hired attorney Randy Spiro to prepare the necessary papers.

The Shifrens were divorced. During the course of the proceedings, Barbara took the position that, because of the trust, the property that Ken had inherited from his mother was a community asset and that she was entitled to half of its value.

Ken sued Spiro and his law firm for malpractice. He alleged that Spiro committed malpractice by failing to prepare the amendment to the trust to effectuate his intention that the property he inherited from his mother remain his separate property.

Spiro and his law firm moved for summary judgment. They asserted that Ken’s lawsuit was barred by the statute of limitations. They argued that, at the latest, the time for filing suit began to run when Barbara asserted that the particular property was community property and Ken incurred legal fees to dispute that assertion.

The trial court granted the motion.

The Court of Appeal reversed. It held that regardless of when the alleged malpractice occurred, Ken was not actually injured by it until the court in the dissolution action determined that the amendment to the trust agreement did not result in the property Ken inherited remaining his separate property. As such, the time for filing suit had not started to run until that point.


There Are Ways Of Getting Access To Postings On Services Like Facebook

Juror Number One v. Superior Court
(Cal. Ct. of App., 3d Dist.), filed May 31, 2012 

Juror Number One was a juror in a criminal trial. The jury found the defendant guilty of the crime charged.

Following the conviction, the trial court learned that Juror Number One had posted one or more items on his Facebook account concerning the trial while it was in progress. This was in direct violation of an admonition by the court. The court conducted a hearing at which Juror Number One and several other jurors were examined about this and other claimed instances of misconduct. Following the hearing, the court entered an order requiring Juror Number One to execute a consent form pursuant to the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.), authorizing Facebook to release to the court an in camera review of all items he posted during the trial.

Juror Number One challenged the order.

The Court of Appeal concluded that the SCA is not applicable to the order at issue and Juror Number One otherwise failed to establish a violation of constitutional or privacy rights.

Under the SCA, the court could not order Facebook or any similar provider to produce copies of Juror Number One’s postings. However, Juror Number One could consent to Facebook producing them, in which event Facebook would have to do so. Since the trial court could order Juror Number One to produce documents in his possession, custody or control, it could order that juror to consent to Facebook’s disclosure of them.

As to Juror Number One’s constitutional challenges, the court ruled that although Juror Number One asserted constitutional rights, Juror Number One waived those challenges by failing to address them and cite authority in support of those challenges.


In A Summary Judgment Motion, If A party Fails To Respond To Objections, Whether In Writing Or Orally, It Cannot Argue The Objections Were Improperly Sustained On Appeal

Tarle v. Kaiser Foundation Health Plan, Inc.
(Cal. Ct. of App., 2d Dist.), filed May 22, 2012 

Patricia Tarle worked for Kaiser Health Plan. She sued it and several of its supervisory personnel for discrimination.

Kaiser and its supervisors filed a motion for summary judgment. Tarle filed a written opposition to the motion supported by evidence that she asserted showed a triable issue of material fact.

Tarle’s opposition gave rise to a substantial number of evidentiary objections. Kaiser and its supervisors submitted 200 pages of objections, consisting of 335 separate objections. Most of the objections asserted multiple grounds.

Tarle did not file any opposition to the objections, nor request a continuance for additional time in which to prepare a written opposition. Prior to the hearing, the prior court provided the parties with a written tentative ruling, in which it indicated that it would sustain all but a handful of the objections. At the hearing of the motion, Tarle did not challenge most of the objections.

The trial court granted the motion.

On appeal, Tarle challenged, for the first time, the trial court’s ruling on the great bulk of Kaiser and the supervisors’ objections.

The Court of Appeal framed the issue as “whether a party can challenge, on appeal from a summary judgment, rulings sustaining objections to her evidence to which she never submitted oral or written opposition.” It held that “a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”

In reaching its conclusion, the court noted that “it is no longer in dispute that a trial court must expressly rule on each properly presented evidentiary objection.” However, it observed that there is very little law relative to the litigants’ obligations relative to objections.

The court rejected Tarle’s argument that she could not be expected to address each objection because there was insufficient time between the due date on the moving party’s reply and the hearing date. It noted that, if appropriate, the trial court could continue the hearing so there would be sufficient time. It also noted that it was not requiring opposition to give objections in writing. Opposing arguments simply needed to be before the court.

The court also rejected Tarle’s argument that requiring that the objections be addressed would be burdensome. The court recognized that a litigant might use excessive objections to cause burden, but noted that the trial court could, upon proper request, use its inherent power to control excessive objections. It said that challenging excessive objections as being burdensome should be done in the trial court, not for the first time on appeal.

The court next rejected Tarle’s argument that it is unjust for an appellate court to uphold a summary judgment based on evidentiary rulings which the appellate court knows were erroneous. The court said that it is equally unjust for a party to lead a trial court to make an erroneous ruling on an evidentiary objection by failing to suggest to the court a basis on which the evidence is admissible, and then raise the argument for the first time on appeal.

Although the court found that Tarle could not raise asserted errors in evidentiary rulings on appeal, it also found that much of the problem was due to the papers that Kaiser and the supervisors had submitted. It thus remanded and instructed the parties to prepare proper papers.


An Appellant Arguing Lack Of Substantial Evidence Must Recite The Evidence Supporting The Verdict

Mendoza v. City of West Covina
(Cal. Ct. of App., 2d Dist.), filed May 8, 2012 

David Mendoza died of asphyxiation while in police custody in the emergency room of Citrus Valley Medical Center. While in custody in the emergency room, he was first repeatedly tasered and punched by West Covina police officer Enrique Macias, and then pinned to the ground and handcuffed by Macias and three other West Covina police officers. Mendoza’s sons, David, Jr., and Irvin, sued the city and Macias for wrongful death, alleging that Macias used excessive force in violation of their father’s constitutional rights.

At trial, the City and Macias made an oral motion for nonsuit, contending that Macias’s use of force on Mendoza was entitled to qualified immunity. The trial court denied that motion, finding that whether Macias used excessive force was a question for the jury to resolve.

The jury awarded David, Jr., and Irvin $750,000 each for the wrongful death of their father, but determined that Mendoza was 30% at fault in the incident. The jury found that Macias had acted with “malice, oppression and/or fraud.”

The City and Macias appealed. They asserted the trial court erred in denying their motion for nonsuit.

The Court of Appeal affirmed.

Whether qualified immunity applies turns in large part on a factual inquiry. Determining whether a police officer violated the plaintiff’s constitutional rights by using excessive force must be evaluated in light of facts most favorable to the plaintiff’s case. As a result, in appealing the judgment, the city and Macias had an obligation to identify for the court not only evidence supporting a finding that qualified immunity applied, but also evidence supporting a finding that it did not apply. Only by doing so could the court determine whether the verdict was supported by substantial evidence and in particular that it was not.

The City and Macias failed to identify evidence that supported the verdict. This made it impossible for the court to determine whether the verdict was supported by substantial evidence or that it was not. Because this failure made it impossible for the court to perform the review it needed to make, the court deemed the issue of whether the verdict was supported by substantial evidence to have been waived.

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