SEPTEMBER: California Case Update

Author: Paloma Ramirez

Cordova v. City of Los Angeles (August 13, 2015) 190 Cal.Rptr.3d 850
A third party driver caused, via negligent driving, another car to strike a magnolia tree planted on a center median owned and maintained by the City of Los Angeles. The impact with the tree resulted in the deaths or injuries of the car’s occupants. Plaintiffs sued the City under Cal. Gov’t Code 835, which provides that a public entity may be held liable for injury proximately caused by a dangerous condition of its property if the risk of injury was reasonably foreseeable and the entity had sufficient notice of the danger to take corrective measures. Plaintiffs claimed the design of the road was a dangerous condition of public property. The trial court entered summary judgment in favor of the City, finding the magnolia tree did not constitute a dangerous condition of public property because it did not cause the accident. The court of appeal affirmed, explaining Plaintiffs could not prove the magnolia tree contributed to the third party motorist’s criminally negligent driving. The Supreme Court reversed, holding section 835 did not require Plaintiffs to show the allegedly dangerous condition caused not only their decedents’ fatal injuries but also the third party conduct that precipitated the accident.

McMillin Albany LLC v. The Superior Court of Kern County (August 26, 2015)
Plaintiff/Homeowners Van Tassell et al., filed an action against the builder, McMillin, for recovery of damages allegedly resulting from construction defects. McMillin moved to stay the litigation until Plaintiffs complied with SB800/Right to Repair Act statutory nonadversarial prelitigation procedures which applies to construction defect litigation involving certain residential construction. Plainiffs opposed the motion, contending the statutory prelitigation procedures did not apply because they had dismissed the only cause of action in their complaint that alleged a violation of the Right to Repair Act. The trial court denied the stay, and McMillin petitioned for a writ of mandate compelling the trial court to vacate its order denying the motion and enter a new order granting the stay as requested. The Writ was granted and the trial court order vacated with new order granting stay to be ordered. The Court noted regardless of the dismissal of the Right to Repair Action cause of action, a developer was still entitled to the SB800 pre-litigation procedures prior to the initiation of suit.

Poole v. Orange County Fire Auth. (August 24, 2015) 2015 WL 4998965
Plaintiff’s supervisor maintained a “daily log” regarding the employees he supervised. The daily log consisted of notes memorialized thoughts and observations of employees, which he used to assist him in preparing performance plans and reviews. Plaintiff and the Orange County Professional Firefighters Association filed suit seeking to require Defendants to comply with Cal. Gov’t Code 3255 before including adverse comments in Plaintiff’s personnel files. At issue was whether or not section 3255, which gives a firefighter a right to review and respond to negative comment entered into his or her personnel file, gave Plaintiff the right to review and respond to negative comments in the supervisor’s daily log. The Court of Appeal concluded Section 3255 entitled Plaintiff to an opportunity to respond to the negative comments in the log before they were made known to the employer. The Supreme Court reversed, holding because the log was not shared with or available to anyone else but the supervisor who wrote it, it did not constitute a file “used for any personnel purposes by his or her employer,” and therefore, Section 3255 did not apply.
Fluor Corp. v. Superior Court of Orange County (August 20, 2015) 2015 WL 4938295
The matter pertains to an insured’s assignment of the right to invoke defense and indemnification coverage under a liability policy issued by Hartford Accident & Indemnity Company. In the matter Henkel Corp. v. Hartford Accident & Indemnity Co., a case decided on similar facts, the Supreme Court held a consent-to-assignment clause was enforceable and precluded the insured’s right to transfer its right to invoke coverage without the insurer’s consent, even when a coverage-triggering event had happened. According to Cal. Ins. Code 520, an insurer’s ability to limit an insured’s right to transfer or assign a claim for insurance coverage is limited. The Supreme Court held that after an injury which resulted in a loss occurs within the time period of the policy, an insurer must honor an insured’s assignment of the right to invoke defense or indemnification coverage regarding that loss, thus overruling Henkel.

Hartford Cas. Ins. Co. v. J.R. Marketing, LLC (August 10, 2015) 61 Cal.4th 988
A commercial general liability insurer brought a claim against Cumis Counsel for reimbursement and other causes of action. As background, the insurer had initially refused to defend its insured against a third-party lawsuit but subsequently provided independent counsel under a reservation of rights to defend its insured in the third party suit. The insurer sought reimbursement alleging that independent counsel “padded” their bills by charging fees that were, in part, excessive unreasonable and unnecessary. The trial court found that the insurer’s right to reimbursement, if any, was from its insureds, not Cumis counsel. The Court of Appeal affirmed. The Supreme Court reversed, holding under the circumstances of this case, the insurer could seek reimbursement directly from Cumis counsel under an unjust enrichment theory, rather than from its insured.

Mrs. Ramirez is a graduate of Southwestern University School of Law. She specializes in the defense of contractors and materials suppliers in the areas of construction defect and construction related claims. Contact her at

Download full article here: September California Case Update

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