Gerold C. Dunn

The case involved Major Clients Agency suing attorney John Diemer for equitable indemnity, alleging that Diemer's failure to adequately review contract language in negotiations between the agency and Franklin (with Lorimar) caused damages from subsequent settlements. The trial court sustained Diemer's demurrer without leave to amend, dismissing the case, and the appellate court affirmed. The court reasoned that Diemer owed no duty of care to Major Clients, who were not his clients and not intended beneficiaries of his legal services, and thus no cause of action for indemnity could be stated.

proceduretorts & liabilitybusiness & regulatory

The case involved a minor plaintiff who obtained a personal injury judgment against insured defendants and then sued their liability insurers for breach of contract and bad faith after an 81-day delay in paying the remaining balance due on the judgment, including interest. The plaintiff sought emotional distress damages based on the insurers' delay, which he attributed to a dispute between the insurers over costs and a pretrial settlement. The trial court granted summary judgment to the insurers, and the appellate court affirmed, holding as a matter of law that the mere loss of use of money during the brief delay did not satisfy the required threshold of financial loss needed to recover emotional distress damages in first- or third-party insurance bad faith actions. The court reasoned that emotional distress damages are recoverable only when plaintiffs suffer some financial loss, and precedent establishes that loss of use alone during a short payment delay fails to meet this element, leaving no triable issue of fact on damages.

torts & liabilityprocedure

The case concerned whether the California Horse Racing Board's regulation 1859.5, which mandates automatic disqualification of horses and forfeiture of purses upon a finding of prohibited substances like scopolamine in post-race samples, conflicts with Business and Professions Code section 19582.5, which authorizes discretionary action by the board. The board had applied the rule to disqualify three horses after trace amounts of the drug were found from contaminated straw bedding, exonerating the trainers but ordering purse returns. The trial court granted a writ of mandate, ruling the regulation impermissibly eliminated required discretion. The Court of Appeal reversed, concluding the regulation is consistent with the statute's grant of authority to adopt rules preserving racing integrity, including mandatory disqualification provisions.

business & regulatory

In Johnson v. State Bar of California, former attorney Charles Johnson challenged a State Bar Client Security Fund Commission decision reimbursing client Hardistene Howard $901 after Johnson accepted $1,000 to pursue a legal malpractice claim but spent only $99 on a filing fee, failed to prosecute the case (leading to its dismissal), and retained the balance without proper authorization. Johnson petitioned the superior court for a writ of mandate, which was denied; the court applied the substantial evidence standard of review and found the commission's ruling proper under either that or independent judgment review. The Court of Appeal affirmed, holding that Johnson's retention of unearned funds constituted dishonest conduct under Client Security Fund rules as a wrongful taking or conversion, that no specific intent was required, and that his claimed work on an unapproved workers' compensation matter did not justify the fee under Labor Code provisions. The court concluded ample evidence supported the reimbursement order.

business & regulatoryprocedure

In Dubois v. Corroon & Black Corp., the plaintiff filed suit in 1987 alleging negligent misrepresentation and breach of an insurance sales contract, but the case remained inactive for over four years with no at-issue memorandum filed due to an oversight by successive associates at his law firm. The trial court, on its own motion, dismissed the action under Code of Civil Procedure section 583.420 for unreasonable delay in prosecution and later denied reconsideration or relief under section 473. The Court of Appeal affirmed, ruling that the trial court had not abused its discretion because the plaintiff had not shown excusable delay or that dismissal would cause injustice, even absent demonstrated prejudice to the defendants.

procedure

In Harris v. State Personnel Board, a state university clerical employee was automatically deemed to have resigned under Education Code section 89541 after five days of absence without leave following a work-related back injury, despite conflicting medical advice on his return-to-work date. The State Personnel Board initially denied reinstatement but later ordered it effective October 1979 without back pay; after further mandamus proceedings, the employee sought back wages for the period until his actual return in 1981. The trial court sustained a demurrer and dismissed the petition because the employee had not first presented a claim to the State Board of Control under Government Code section 905.2. The Court of Appeal reversed, holding that the claim for unpaid wages arose from the employment contract rather than tort liability, so the Tort Claims Act's claim-presentation requirement did not apply and mandamus was an appropriate vehicle to seek the relief.

labor & employmentprocedure

In Benge v. Superior Court, the appellant challenged the denial of his petition for writ of mandate after the municipal court refused to strike his 1977 guilty plea to driving under the influence under Vehicle Code section 23102(a), which he had entered while representing himself. He argued that his waiver of counsel was invalid because the record did not show a specific admonition regarding the dangers and disadvantages of self-representation, relying on Faretta v. California and related cases. The Court of Appeal affirmed the superior court's denial, finding that the docket and transcript reflected a knowing and intelligent waiver through the advisement and signing of waiver forms covering constitutional rights, and that the trial court had fulfilled its duty to ensure the waiver and plea were valid. The court held that California law does not require a separate memorialized warning about self-representation perils in this context for the plea to stand, and any omission was not prejudicial given the overall record.

criminal lawprocedure

In Erich v. Granoff, former tenants under a 1967 residential lease containing a 10-year option to purchase the property at a formula-based price sued the landlord for specific performance after mailing notice of exercise in 1977 and attempting to open escrow. The trial court granted an interlocutory decree of specific performance ordering conveyance but ruled that neither side was entitled to attorney fees, costs, or damages. On appeal, the court affirmed the specific performance decree, holding that the option was validly exercised upon mailing of acceptance, that the landlord's refusal to perform without good cause excused tender of the purchase price, and that the lease contract entitled the prevailing buyers to fees and costs both below and on appeal.

property

In this juvenile delinquency case, the Los Angeles District Attorney petitioned the court to declare 17-year-old Eduardo G. a ward under Welfare and Institutions Code section 602 for violating Vehicle Code section 10851 by unlawfully taking and driving a vehicle without the owner's consent. The juvenile court referee sustained the petition after denying the minor's motions to suppress evidence due to alleged Fourth Amendment violations and statements under Miranda v. Arizona, and ordered the minor committed to the California Youth Authority. On appeal, the minor challenged the referee's authority to conduct the hearing, the lawfulness of his detention, and the validity of his Miranda waiver. The Court of Appeal affirmed the disposition, holding that the referee had authority under relevant case law, the detention was supported by reasonable suspicion, and the waiver was knowing and intelligent based on the totality of circumstances including the minor's age and lack of coercive factors.

criminal lawprocedure

The case involved property owners in the Big Rock area of Malibu petitioning for a writ of mandate and injunction to overturn the Los Angeles County Board of Supervisors and Regional Planning Commission's approval of a tentative tract map for a 531-acre residential subdivision called Bel Mar Estates. The petitioners claimed the approvals violated the California Environmental Quality Act, the Subdivision Map Act, and local ordinances due to inadequate environmental review. The trial court found that the county had prepared a draft and final EIR, held noticed public hearings, considered alternatives and mitigation measures, and made findings supported by substantial evidence showing compliance with all legal requirements. The court concluded that the project approvals were valid because the EIR process fully addressed environmental impacts, including grading and access, and the 'no project' alternative, with 75-80% of the site remaining undeveloped.

environmentproperty

This case involved the widow and children of a worker who died following surgery, who sued four medical providers for wrongful death based on alleged malpractice. The employer's workers' compensation insurer had paid death benefits and filed a lien notice seeking reimbursement from any recovery. The plaintiffs settled with three defendants for $245,000 while agreeing to indemnify them against the lien, then lost at trial against the fourth defendant. The trial court granted the insurer's motion to enforce its lien against the settlement proceeds in the amount of benefits paid. The appellate court affirmed, reasoning that Labor Code sections 3850-3864 permit the insurer to recover compensation paid from third-party settlements even without intervention or consent to the settlement terms.

labor & employmenttorts & liabilityprocedure

The case involved a dispute over a sublease of 40 acres of land in Tulare County, California, where plaintiff Western Camps operated a summer camp. Western Camps sued Riverway Ranch Enterprises and limited partner Wallace McCoy for breach of contract, fraud, and negligent misrepresentation after Riverway's underlying lease terminated due to failure to exercise purchase options, without providing the agreed-upon termination payments of $60,000, improvement costs, and a rental deposit refund. The trial court awarded damages to the plaintiff, but on appeal the court affirmed the judgment against Riverway while reversing the judgment against McCoy individually. The core reasoning was that the sublease terms required payment upon termination regardless of the reason, Riverway breached those terms, and McCoy could not be held personally liable under limited partnership rules because he did not participate in control of the business.

propertybusiness & regulatory

The case involved a worker employed by Sunshield Insulation Company who was injured when a scaffold fell during construction work at a site managed by general contractor Ernest W. Hahn, Inc. After receiving workers’ compensation benefits, the worker sued Hahn for negligence in assembling and inspecting the scaffold; Hahn cross-claimed against Sunshield for contractual indemnity. A jury awarded damages to the worker against Hahn and found Sunshield must indemnify Hahn. The Court of Appeal affirmed, holding that the evidence supported the jury’s finding that Sunshield’s negligence in assembling an unsafe scaffold was active while Hahn’s was only passive in failing to discover the violation of safety orders, and that the trial court’s instructions on active versus passive negligence and indemnity were proper.

torts & liabilitylabor & employmentbusiness & regulatory

This case concerns a husband's request, in a marriage dissolution proceeding, to modify an interlocutory judgment's spousal and child support orders after he lost his job one month after the judgment was entered. The trial court reduced the support amounts effective from the date of his modification motion but declined to make the changes retroactive to the job loss date and ordered that payments would automatically revert to the original levels upon his return to full-time employment. The appellate court affirmed, holding that state statutes bar retroactive modification of support orders as to amounts accrued before the motion filing date and that the automatic reversion clause was a proper exercise of discretion tied to the specific changed circumstance of unemployment. The court added language to the order explicitly retaining jurisdiction for future modifications based on new facts.

family law

In this case, Franklin Valvo, a former third-year medical student at the University of Southern California, filed a petition for writ of mandate in 1974 seeking reinstatement after his summary dismissal by the school's promotions committee in March 1967. The trial court sustained the university's demurrer without leave to amend on statute of limitations grounds and entered a judgment of dismissal. On appeal, the court dismissed Valvo's challenges to the non-appealable order sustaining the demurrer and the denial of reconsideration, affirmed the denial of his motion to vacate based on alleged judicial disqualification and other grounds under Code of Civil Procedure section 473, and reversed the judgment of dismissal with directions to overrule the demurrer. The core reasoning centered on established rules that appeals lie only from the final judgment of dismissal, that no facts were presented to support claims of judicial disqualification, and that the limitations defense did not bar the action at the pleading stage.

procedure

This case involved a reinsurance company (Security Mutual) that sued an insurer (Transport), its insured (Tanner Motors), and an attorney (Longnecker) after a bus accident led to claims that could not be indemnified. The complaint alleged breach of the duty of good faith and fair dealing plus negligence, claiming that a release given to the bus manufacturer (Flxible) prevented the reinsurer from pursuing indemnity or subrogation in a passenger's lawsuit. The trial court sustained demurrers to the third amended complaint and dismissed the action. The Court of Appeal affirmed the dismissal, holding that the allegations failed to state a viable cause of action. The court reasoned that no contractual or tort duty ran directly from the defendants to the reinsurer under the facts alleged, relying on prior authority such as Lan Franco.

business & regulatorytorts & liabilityprocedure

The case involved a personal injury lawsuit filed by plaintiff Cornwall against Santa Monica Dairy Co. in 1972. After the defendant served interrogatories in 1974 that went unanswered, the trial court ordered responses within 30 days along with sanctions; when no answers were provided, the court dismissed the action in 1976 for willful failure to comply with discovery under Code of Civil Procedure section 2034. On appeal, Cornwall argued there was no showing of willfulness, but the court affirmed the dismissal, holding that a plaintiff availing himself of California courts owes a duty to comply with discovery rules and that failure to keep in contact with counsel can be deemed willful under the circumstances.

proceduretorts & liability

This case concerned the dissolution of a long marriage, with the trial court addressing the division of community property assets including a business, real estate, retirement benefits, and cash, as well as orders for spousal support, child support, and attorneys' fees after bifurcating the marital status. The trial court awarded specific community assets to each party, directed support payments, and ordered reimbursement of $18,180 to the husband from community cash for obligations he paid using borrowed funds. On appeal, the wife challenged the reimbursement as improper, while the husband cross-appealed the business valuation, support award, and denial of his attorneys' fees. The appellate court concluded that the borrowed funds came from a community line of credit during the marriage, so no reimbursement from community assets was warranted, and modified the judgment to reduce the payment to the husband from $41,839 to $23,659 while affirming the rest.

family lawproperty

The case involved joint charges against Kelso, Evans, and others for the 1975 murder of Hempy, assault with intent to murder Burnett, kidnapping of O’Hara, and murder of O’Hara, with a codefendant alleged to have fired the fatal shots. The jury convicted Kelso of two counts of second-degree murder, kidnapping, and assault with a deadly weapon, and convicted Evans of involuntary manslaughter, kidnapping, and assault with a deadly weapon; the trial court imposed prison sentences, some consecutive. On appeal, the court affirmed the convictions, holding that simple kidnapping is an inherently dangerous felony that can support a second-degree felony-murder instruction when not an integral part of the homicide, that evidence was sufficient to establish aiding-and-abetting liability, and that the kidnapping sentences must be stricken under Penal Code section 654 because the kidnapping and murders shared a single objective.

criminal lawprocedure

This case arose from a personal injury lawsuit in which the plaintiff served requests for admissions on defendant Cohen regarding events at his bar and a related car accident. Cohen's counsel denied many of the requests on information and belief, violating local superior court discovery rules that require unequivocal denials. The trial court granted the plaintiff's motion to deem the facts admitted, imposed sanctions, and denied Cohen's subsequent motion under Code of Civil Procedure section 473 to amend the responses. The Court of Appeal issued a writ of mandate directing the trial court to set aside its order, reasoning that the sanction was too severe, the denials retained some value despite the procedural error, and the plaintiff suffered no prejudice because it already knew Cohen intended to contest the matters.

proceduretorts & liability