Richard M. Mosk

The case involved the heirs of a motorcyclist killed in an accident caused by an employee of Sinco Co., who sued Fireman’s Fund for bad faith, breach of contract, and failure to defend or settle under a commercial general liability policy after partial settlements under other policies and an arbitration award exceeding $27 million. The trial court sustained a demurrer without leave to amend on the ground that the CGL policy provided no coverage. The Court of Appeal affirmed the dismissal, holding that the employee qualified as an insured under the policy definition because he was acting within the scope of employment while using a required vehicle, which made the automobile accident exclusion applicable and eliminated any duty to defend. The ruling rested on the complaint allegations and judicially noticed facts establishing that the employee was an insured, so the exclusion barred coverage.

business & regulatorytorts & liability

In this workers’ compensation case, the widower of a deceased employee sought death benefits after his wife, a waitress, died from a hemorrhage and hypertension allegedly caused by work stress; the claim was denied, and a panel-qualified medical evaluator was selected to assess causation. During the proceedings, the evaluator initiated an ex parte telephone call to defense counsel requesting copies of medical records that had been lost, prompting the claimant to object and petition for a new evaluator under Labor Code section 4062.3, subdivision (f), which bars ex parte communications between parties and evaluators. The Workers’ Compensation Appeals Board denied the petition, finding the communication was initiated by the evaluator and concerned only administrative matters. The Court of Appeal held that the statute prohibits all ex parte communications regardless of who initiates them or whether they address administrative issues, but recognized that not every such contact automatically requires appointment of a new evaluator due to the informal nature of workers’ compensation procedures; the matter was remanded for reconsideration under the correct legal standard.

labor & employmentprocedure

In Hervey v. Mercury Casualty Co., the plaintiff purchased an auto insurance policy from Mercury that included medical expense coverage and uninsured motorist coverage; after an accident with an uninsured driver, Mercury paid her medical expenses but then offset those payments against the uninsured motorist settlement. Hervey filed a class action alleging breach of contract and related claims, arguing that the medical expense endorsement titled 'MEDICAL EXPENSE—NO EXCESS, NO REIMBURSEMENT' prevented any offset against uninsured motorist benefits. The trial court sustained Mercury's demurrer without leave to amend, and the Court of Appeal affirmed, holding that the policy language was unambiguous and that the endorsement deleted only reimbursement provisions related to third-party liability recoveries, not the separate offset provision in the uninsured motorist section of the policy, which remained enforceable as it was conspicuous, plain, and clear.

business & regulatory

In this workers' compensation case, the widower of a deceased employee sought death benefits after her employer’s insurer denied the claim that her work caused her fatal intracerebral hemorrhage; a panel-qualified medical evaluator selected under Labor Code section 4062.2 had an ex parte telephone conversation with defense counsel requesting replacement copies of medical records after his deposition. The Workers’ Compensation Appeals Board denied the claimant’s request for a new evaluator, holding that the communication was initiated by the evaluator rather than a party and concerned only administrative matters. The Court of Appeal annulled that decision, ruling that section 4062.3, subdivision (f) expressly bars all ex parte communications between a party and a panel-qualified medical evaluator except those made by the employee or dependent in connection with an examination, and that any violation entitles the aggrieved party to a new evaluator from another panel.

labor & employmentprocedure

The case involved a defendant who, while detained in a jail cell after an arrest for resisting eviction, attempted to push past officers and exit the cell, leading to charges including attempted escape by force or violence under Penal Code section 4532. The trial court instructed the jury that the defendant could be convicted based on attempting to escape from an officer's custody inside the jail. The Court of Appeal reversed the conviction on that count, reasoning that section 4532 does not apply to breaking away from an officer within the confines of the jail facility and instead requires an attempt to escape the jail itself.

criminal lawprocedure

In Yassin v. Solis, a licensed contractor sued homeowners for unpaid amounts under a contract for home addition and improvement work totaling $75,000, while the homeowners countersued for breach of contract and damages arising from alleged defective and substandard work that required hiring another contractor to complete. The trial court awarded the homeowners $50,000 in damages on their cross-complaint, nothing to the contractor, and $36,205.14 in attorney fees under Civil Code section 3260, subdivision (g), on the theory that the withheld final $7,500 payment constituted a retention. The appellate court affirmed the damages award based on substantial evidence supporting the homeowners' claims but reversed the attorney fees, reasoning that the final installment payment due upon completion and certificate of occupancy was not a retention (amounts withheld from progress payments as security) under the statute, and thus the prevailing party on that claim was not entitled to fees under section 3260 or related provisions.

business & regulatoryprocedure

The case involved a dispute between USA Waste of California and the City of Irwindale over whether new city-issued Guidelines for backfilling an open-pit quarry (requiring 93% soil compaction for future commercial development) applied to USA Waste's ongoing lease and operations at Pit No. 1, or whether only the less stringent standards from a prior approved Reclamation Plan and Standstill and Tolling Agreement (90% compaction) governed. USA Waste filed a cross-complaint alleging contract, environmental, and related claims after the City sought to enforce the Guidelines. The Court of Appeal affirmed the trial court's denial of the City's anti-SLAPP motion to strike portions of the cross-complaint. The court reasoned that the claims arose from the City's issuance and application of the land-use Guidelines themselves rather than from any protected petitioning or speech conduct under Code of Civil Procedure section 425.16, so the statute did not apply and the burden never shifted to USA Waste to show minimal merit.

business & regulatoryenvironmentprocedureproperty

In the case In re Marriage of Zimmerman, the petitioner sought to set aside prior child support orders against her former husband on grounds of alleged fraud regarding his income and financial status. The trial court denied the request, finding it barred by the six-month limitations period under Family Code section 3691, subdivision (a), and imposed discovery sanctions on the petitioner. The Court of Appeal affirmed, holding that the motion was untimely as it was filed more than six months after the petitioner learned of the alleged fraud, and that sanctions were properly awarded because the discovery efforts related to a time-barred claim.

family lawprocedure

The case involved defendant Shon Ramone Yokely, who was convicted of murder in 1992 after a live lineup identification by two eyewitnesses without his attorney present, leading a federal district court to grant habeas corpus relief. At retrial, the state trial court independently ruled that the witnesses' in-court identifications had origins independent of the tainted lineup and admitted the testimony, resulting in another conviction. The appellate court held that the federal court's findings did not preclude the trial court's independent admissibility determination and found substantial evidence supporting the conclusion that the identifications were based on the witnesses' observations during the shooting. The court rejected other claims of trial error but modified the judgment to correct sentencing errors regarding certain enhancements before affirming.

criminal lawprocedure

This case involved defendants Concha and Hernandez, who along with two others attempted to rob and kill Jimmy Lee Harris outside a beauty salon, leading to a prolonged chase and fight during which Harris fatally stabbed their accomplice Sanchez with a pocketknife in self-defense. The California Court of Appeal reviewed the defendants' convictions for first-degree murder under a provocative-act theory, following a California Supreme Court ruling that such liability is possible but requires proof that each defendant personally acted willfully, deliberately, and with premeditation in the underlying attempted murder. The trial court had failed to instruct the jury on this personal mens rea requirement for first-degree murder, but the appellate court held the error harmless beyond a reasonable doubt because the evidence clearly showed the defendants' premeditation, and it therefore affirmed the convictions.

criminal law

This case involved a dispute between plaintiff Sam Ghadrdan and defendants Alex Gorabi and Angelino Men’s Wear, Inc. arising from their long-term business relationship in textiles and later a men’s clothing business that included ownership of commercial property. After a jury trial, Ghadrdan won a verdict on his breach of oral contract claim for approximately $2.4 million. Defendants appealed, primarily arguing that the trial court erred by excluding evidence of a corporate plea agreement and conviction for Medi-Cal fraud involving a pharmacy of which Ghadrdan was CEO and sole shareholder, which they sought to use for impeachment and to show motive or knowledge under Evidence Code sections 1101(b) and 352. The Court of Appeal affirmed the judgment, holding that the trial court did not abuse its discretion in excluding the evidence because the conviction was not Ghadrdan’s personally and its probative value was substantially outweighed by risks of prejudice, jury confusion, and undue consumption of time.

business & regulatorypropertyprocedure

The case involved Joel Drum, a disbarred attorney seeking to offer low-priced mediation services, who sued the San Fernando Valley Bar Association for refusing to sell him its membership mailing list, alleging this was an unfair business practice under California's unfair competition law (UCL) to protect member mediators from competition. The trial court sustained the association's demurrer, and the Court of Appeal affirmed the resulting judgment of dismissal. The court held that Drum lacked standing under the UCL because he failed to allege any injury in fact or loss of money or property from the refusal. The opinion further concluded that the association's conduct did not amount to an unfair practice under any of the applicable tests, as it was consistent with the group's mission to enhance respect for the law and did not substantially injure consumers or exclude competitors from the market.

business & regulatoryprocedure

Anesthesiologists who were part of a medical group sued a hospital and other doctors for age and national origin discrimination, retaliation, and related claims after being removed from the hospital's anesthesiology schedule. The defendants sought to compel arbitration under clauses in 2006 and 2008 coverage agreements between the group and the hospital. The court granted a writ of mandate overturning the trial court's order to arbitrate, holding that the plaintiffs were not bound by the 2008 agreement and that the 2006 arbitration provision was unconscionable and unenforceable because its incorporated rules severely limited damage remedies. The reasoning centered on lack of consent to the later contract and the public policy against enforcing arbitration agreements that effectively deny meaningful relief for statutory claims.

civil rightslabor & employmentprocedure

The case involved a minor, Stephon L., who had two sustained petitions under Welfare and Institutions Code section 602 for offenses including concealed firearm possession and grand theft. He appealed a juvenile court order finding a probation violation, arguing that the court failed to award him predisposition custody credits for time served in connection with both petitions when calculating his aggregated maximum period of physical confinement. The court held that the appeal was not moot because the maximum confinement period had not yet expired, and it modified the order to grant the minor 742 days of actual custody credit against that period. The reasoning was that when maximum periods of confinement are aggregated across multiple petitions, a minor is entitled to credit for all actual time spent in custody related to either petition, consistent with precedents like In re Eric J. The disposition affirmed the order as modified.

criminal lawprocedure

In People v. Johnson, the defendant was convicted of assault with a deadly weapon after stabbing a motel employee who attempted to eject him from the property following a dispute over permission to remain on the premises. The defendant claimed self-defense, arguing that the employee used excessive force, and on appeal challenged the trial court's refusal to give a proposed jury instruction based on CALCRIM No. 3475 regarding force against trespassers and its failure to instruct sua sponte with CALCRIM No. 3471 on mutual combat or initial aggressor self-defense rights. The court held that the proposed CALCRIM No. 3475 instruction was irrelevant to the self-defense claim and that the general self-defense instruction already given made the CALCRIM No. 3471 instruction unnecessary, as the jury was tasked only with determining whether the defendant reasonably exercised his right to self-defense. The appellate court therefore affirmed the conviction and sentence.

criminal lawprocedure

In People v. Franco, the defendant was arrested after police discovered drugs, paraphernalia, cash, and a firearm in his apartment during an inspection; he admitted personal use but denied selling, leading to convictions for maintaining a place for controlled substance use under Health and Safety Code section 11366 and for simple possession, while being acquitted of possession for sale. The court reversed the section 11366 conviction and remanded for possible retrial on that count, while affirming the remainder of the judgment. The core reasoning was that the statute requires maintaining a place for the continuous or repeated use of drugs by others, not merely personal use by the defendant, and the trial court's jury instruction erroneously permitted conviction based on the defendant's own use alone.

criminal lawprocedure

The case involved a dispute between Kim Seng Co. and its insurers, Great American Insurance Company of New York and American Alliance Insurance Company, over whether the insurers had a duty to defend and indemnify Kim Seng in a trademark infringement lawsuit filed by Great River Food concerning use of the mark 'Que Huong' on Asian food products. The trial court granted summary judgment to the insurers based on the prior publication exclusion in the commercial liability policies covering advertising injury. On appeal, Kim Seng argued that the exclusion did not apply to trademark claims, was rendered inapplicable by the policy's definition of 'material,' or did not apply because of variations in the marks and logos used during the policy period. The court affirmed the judgment, holding that the prior publication exclusion applied to the trademark infringement claims because Kim Seng had begun using the mark before the policies took effect.

business & regulatory

The case involved a lawsuit by property owner Martin Kelly against CB&I Constructors, Inc., after the defendant's negligent work sparked a brush fire that damaged Kelly's 34-acre ranch, including structures, trees, and land, leading to subsequent mudslide damage. A jury awarded substantial restoration costs exceeding the property's pre-fire value, plus damages for annoyance and discomfort, doubled tree damages under Civil Code section 3346, and attorney fees under Code of Civil Procedure section 1021.9; the trial court upheld these awards. The appellate court held that the defendant forfeited challenges to the verdict form, that substantial evidence supported the excess restoration damages and attorney fees based on the owner's intent to use the property for livestock, that tree damage from negligent fire qualified for mandatory doubling under the tree trespass statute despite a separate fire damage statute, but that annoyance and discomfort damages were unavailable because the owner did not reside on the property at the time of the trespass.

torts & liabilitypropertyprocedure

The case involved limited partners in mall-owning partnerships suing the Newman Family Trust (as successor trustee) and other defendants for breach of fiduciary duty based on fraud, alleging concealment of key details about a 1997 refinancing that led to a later distress sale of the mall and loss of equity. The Court of Appeal affirmed summary judgment for the Newman Family Trust, applying the one-year limitations period under Code of Civil Procedure section 366.2 after the death of the original trustee Harry Newman, Jr. The court reasoned that this post-death limitations period governs fraud claims arising from the decedent's statements made on behalf of the trust, even when the suit targets the successor trustee pursuing trust assets. It reversed summary judgment for the remaining defendants and remanded for further proceedings.

procedurebusiness & regulatorytorts & liability

This case involved an employee who filed workers' compensation claims for specific and cumulative trauma injuries sustained while working as a security officer, seeking vocational rehabilitation benefits under former Labor Code section 139.5 after the employer denied services. The Rehabilitation Unit and later the Workers' Compensation Appeals Board awarded the benefits based on medical evidence showing eligibility, with the Board's decision issued in October 2008. The court annulled the award because section 139.5 was repealed effective January 1, 2009, and the Board's determination was not a final award before that date. The reasoning centered on the principle that workers' compensation rights are purely statutory, with no applicable saving clause in the repeal legislation, requiring application of the law in effect at the time of the court's decision.

labor & employment