California Case Updates

Author: Emily Straub


Burgueno v. The Regents of the University of California, 2015 WL 9700324


Teresa Burgueno and her daughter filed a wrongful death action against The Regents of the University of California (the “Regents”), after their son/brother, Adrian Burgueno, was killed in a bicycle accident at the University of California, Santa Cruz campus. Plaintiffs contend the decedent was killed as a proximate result of the Regents’ negligence in failing to remedy the dangerous condition of a university bike path. The pathway provides for bicycle transportation to and from campus. It also provides access to several recreational activities.

The Regents moved for summary judgment on the basis they were entitled to absolute immunity from Plaintiffs’ claims under Government Code § 831.4.  This statutory provision insulates governmental entities, such as the Regents, from governmental liability associated with public recreational trails. The trial court agreed with the Regents, the motion was granted, and Plaintiffs appealed.


Affirmed. On appeal, Plaintiffs argued the bike path did not qualify as a recreational trail under Government Code § 831.4, as its primary purpose was to provide transportation to and from campus. The Sixth District Court of Appeal disagreed, concluding the mixed use nature of the bike path did not disqualify it as a recreational trail within the meaning of the Code.  In view of this conclusion, the Court upheld the trial court’s order.


Castillo v. DHL Express (USA), 2015 WL 9703433


Henry Castillo instituted a wage and hour class action against DHL Express (USA) and KWK Trucking, Inc.  The parties litigated the matter for several years thereafter, during which time class certification battles were ongoing. In year four of the lawsuit, the parties notified the trial court of their intent to pursue private mediation, and the Court set a post-mediation status conference/trial setting conference which was later continued per a joint request by all parties.

The case did not resolve at mediation, and trial was scheduled for a date in year five of the lawsuit. Plaintiff did not object to the new trial date.

Shortly after the litigation passed the five-year mark, Defendants

filed a motion to dismiss that action for failure to prosecute. Defendants argued dismissal was mandatory under Code of Civil Procedure § 583.360, which requires a dismissal when a case is not brought to trial within five years. The motion was granted and Plaintiff appealed.


Affirmed.  On appeal, Plaintiff alleged the trial court erred in its calculation of the case’s life.  More specifically, Plaintiff claimed the five-year statute of limitations was tolled from the date the parties notified the trial court of their agreement to participate in mediation, and the date the parties notified the trial court that mediation proved unsuccessful. In the alternative, Plaintiff contended the litigation was stayed during the period of ongoing class certification challenges. The Second District Court of Appeal rejected both arguments.

Plaintiff’s mediation tolling argument relied on, among other things, Code of Civil Procedure § 1775.7(b), which applies to court-sponsored mediation ordered by the trial court – not private mediation agreed to by the parties.

Plaintiff’s class certification argument was premised on Code of Civil Procedure § 583.310, which requires the trial court to exclude time from the five-year computation, where it was “impossible, impracticable, or futile” for Plaintiff to bring his or his case to trial.  The Second Circuit was not persuaded Defendants’ ongoing efforts to challenge class certification created such a roadblock.


Kelly v. Orr, 2016 WL 107907


James C. Kelly filed a professional negligence action against several California attorneys and their employer, an international law firm. Plaintiff, the current trustee of the trust at issue therein, claimed Defendants provided erroneous legal advice to his predecessor trustee regarding the subject trust.

Plaintiff waited almost two years to commence litigation upon learning of Defendants’ purported negligence. Less than one year had passed, however, between the date on which the attorney-client relationship between Defendants and Plaintiff’s predecessor trustee ended, and the date on which Plaintiff filed his complaint.

Defendants demurred in response to Plaintiff’s complaint, arguing the action was time-barred.  Therein, Defendants rely on Code of Civil Procedure § 340.6(a), which provides a one-year statute of limitations for legal malpractice claims. The statute of limitations period remains tolled under Code of Civil Procedure § 340.6(a)(2), however, until the attorney ceases legal representation of his or her client in connection with the subject matter where the purported malpractice took place.

The trial court granted the demurrer without leave to amend, finding (a) more than one year had passed since Plaintiff received notice of the legal advice at issue, and (b) Plaintiff had no basis to enjoy the benefits of the statutory tolling period because Defendants’ never represented him.  Plaintiff appealed.


Reversed. The Fourth District Court of Appeal concluded the date Plaintiff became aware of Defendants’ alleged negligence was irrelevant to the statute of limitations issue at hand, because a successor trustee “succeeds in his predecessor’s shoes with respect to the attorney-client privilege.” For that reason, and in view of several provisions of the Probate Code, the Court held the statutory tolling provision for legal malpractice claims applies to successor trustees. Accordingly, the Court found Plaintiff’s action was not time-barred because less than one year had passed between the date on which the previous trustee terminated the attorney-client relationship with Defendants, and the date on which litigation ensued.


Ms. Straub is a graduate of Duquesne University School of Law in Pittsburgh, PA.  The focus of her practice is business litigation, professional liability, and catastrophic personal injury litigation.  Contact her at

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