Category Archives: Civil Litigation

McGill v. Citibank- The California Supreme Court Will Review

McGill v. Citibank docket information.

On December 22, 2014, I posted an article on McGill v. Citibank.  Click here for prior post.

On April 1, 2015, the California Supreme Court granted a petition for review, putting the issue of arbitrability in flux once again.   The District Court of Appeal opinion in McGill distinguished Iskanian v. CLS Transportation Los Angeles (2014) 59 Cal. 4th 348, holding that a true Private Attorney General Action is properly a “state” action, while the injunctive claims of Ms. McGill were not, even though they intend to help people similarly situated.  The California Supreme Court will undoubtedly examine that distinction.

Stay tuned!


Belasco v. Wells- If You Sign It, Then It Will Apply

Click here for PDF of opinion

A buyer of a new home built in 2004 filed a claim against the contractor in 2006.  They settled for $25,000.00.  In exchange for the money, the buyer signed a general release of all claims, known and unknown, related to the construction of the home.

In 2011, the buyer found problems with the roof and filed another action.  The trial court granted summary judgment to the contractor because the 2006 release applied to any issues related to the construction, known or unknown.

In a construction defect case, it is important to take some care in drafting the release, especially if the construction is less than 10 years old, as latent defects may appear.  In Belasco, however, the court examined the release, found it to apply to the entire house, and affirmed summary judgment.  It could be, however, that no judge was going to be sympathetic to Mr. Belasco, since he was himself an attorney.


Richardson v. Franc- easements, licenses, and litigation

Click here for opinion

Richardson v. Franc is a case of once happy neighbors becoming less so.

There was peace for many years.  For their driveway, James Richardson and Lisa Donetti (“respondents”) had an access easement over their neighbors’ property.  The boundaries of the easement had beautiful landscaping and an expensive and  complicated irrigation and lighting system around and under the driveway.  The respondents and their predecessors maintained the easement with their neighbors for over 20 years.

The Francs bought the neighboring property in 2004.  For six years, they lived in harmony.  In late 2010, the discord began.  Mr. Franc cut the irrigation and electrical lines without notice and then had an attorney send a letter demanding the removal of all landscaping within five days.  Litigation ensued.

The trial court held that there was an irrevocable license to maintain the landscaping and supporting systems.  The Francs appealed.

The landscaping exceeded the defined purpose of the access easement.  The Francs’ predecessor permitted, however, if not encouraged, the landscaping, creating a revocable license.  A license is typically revocable, but can become irrevocable when the grantor knowingly allows acts that involve substantial amounts of money and improvement.  It would then be unfair to terminate the license, which becomes irrevocable.

Licenses and easements are creatures of equity and fairness.  The Francs lost their right to claim fairness when they cut the lines.  The court’s opinion did not say that bad people should not prevail, but I expect that the trial court judge and the appellate panel probably thought it.

Montano v. The Wet Seal- The Private Attorney General Doctrine Trumps The FAA

Recently, I commented on the McGill case, which affirmed a broad measure of federal preemption of state restrictions on the enforceability of arbitration agreements.  The prior article is:

McGill v Citibank- More Federal Preemption For Arbitration Agreements.

The Second District of the California Court of Appeals recently issued Montano v. The Wet Seal.  The opinion affirmed the liberal preemption scope of the Federal Arbitration Act, but, since this case involved an attempt to waive the protections afforded by the the California Labor Code and the Private Attorney General Act, returned to Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348.  The court held that Iskanian still controlled its narrow field of where California rules can require a court to void an arbitration agreement.

This new case does not break new ground or invite the United States Supreme Court to wield its hammer of preemption.  It does, however, provide some strengthening of Iskanian should the federal courts question the ability of California to reserve matters for its courts that could be suitable for prosecution by its Attorney General.

McGill v Citibank- More Federal Preemption For Arbitration Agreements

Click for McGill v Citibank opinion.

The fallout from Concepcion continues.  AT&T Mobility LLC v Concepcion (2011) 131 S Ct 1740 ruled generally that the Federal Arbitration Act (“FAA”) preempted state law. The opinion recognized, however, that the FAA “permits agreements to arbitrate to be invalidated by `generally applicable contract defenses, such as fraud, duress, or unconscionability,’ but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Concepcion, 131 S. Ct. At 1746.

The California Supreme Court has tried to exclude a number of disputes from the FAA preemption. Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066 (Broughton) and Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303 (Cruz) combined to create the “Broughton-Cruz Rule” that deemed arbitration provisions unenforceable as contrary to public policy if they require arbitration of claims for injunctions under the California Unfair Competition Law, The California False Advertising Law, or the California Consumer Legal Remedies Act. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 invalidated predispute waivers of an employee’s right to bring a representative action under the Labor Code Private Attorneys General Act of 2004.

In McGill v. Citibank, N.A., the Fourth District of the California Court of Appeals will likely give the California Supreme Court another opportunity to evaluate what disputes, if any, that California courts will except from federal preemption.

In McGill, an individual sued Citibank for unfair competition and false advertising in connection with a credit insurance plan. Citibank petitioned to compel arbitration under its account agreement with the plaintiff. The trial court granted the petition with respect to the monetary claims, but denied it with respect to the claims for injunctive relief, relying on the “Broughton-Cruz Rule.” The plaintiff relied on Iskanian, likening her claims to those of an individual making claims in lieu of the Attorney General.

The Fourth District Court of Appeals reversed, siding with federal court decisions that Concepcion preempted the “Broughton-Cruz Rule” and required all claims to be arbitrated. The opinion distinguished Iskanian, holding that a true Private Attorney General action is properly a “state” action, while the injunctive claims of Ms. McGill are not, even though they intend to help people similarly situated.


California has long tried to preserve the interests of individuals subject to the “small print” of arbitration agreements imposed upon them by people, businesses, and others with superior bargaining power. The federal courts, starting with Concepcion, seek to promote arbitration agreements. With McGill, at least one District Court of Appeal is thinking the same way. The extreme budget cuts facing many Superior Courts should encourage a policy favoring dispute resolution outside of the court system, but such a policy should not be so broad that it denies civil justice to the citizens of California. Iskanian could be the right balance, but the question remains as to whether McGill might tip the balance in the wrong direction.

Lawrence v. La Jolla Beach And Tennis

Click for Lawrence v. La Jolla Beach And Tennis.

A young child fell out of a second story window at a beachfront hotel, suffering serious injuries.  The parents sued.  The hotel moved for summary judgment, claiming that the parents’ negligence overrode any obligation on the part of the hotel and that the hotel had no duty to install a fall prevention device.

The trial court granted summary judgment to the hotel, from which the parents appealed.

The Court of Appeals reversed.  The parents’ negligence, if any, would impact the proportion of blame that the hotel might have, not whether the hotel had any duty to the injured child.

The issue of duty is a question of law suitable for summary judgment.  The factors to determine whether a duty exists, however, are more subtle than whether the window met the applicable building code.

In Lawrence, The parents requested a first floor room when they made their reservation, but only second room floors were available on check-in.  The window through which the child fell had a screen, but it was not sufficient to restrain the child.

The court recognized that a determination of “the scope of foreseeable perils to children must take into consideration the known propensity of children to intermeddle.”  The opinion reviewed cases falling on either side of the argument, concluding that a hotel operator does not guarantee the safety of the guests, but has a duty of ordinary care to make the premises reasonably safe for their expected use; and that  the hotel operator did not meet its burden to show that there was no duty, relying heavily on the presence of children.

Once the court concluded that a duty existed, it was a simple process to conclude that the myriad factual issues related to breach and causation warranted a reversal of summary judgment.

The duty analysis in the opinion was a challenge, since it confirmed that cases were split and that the involvement of children made it difficult to decide.  Hotel owners would probably prefer a clearer rule on when a duty does exist, rather than when it might.  This clarity, however, may not arrive unless the California Supreme Court has a chance to weigh in on this opinion.

Foster v. Williams- The Notice To Quit Must Be Perfect

Click for Foster v. Williams opinion.

The tenant failed to pay rent.  The landlord issued a notice to pay rent or to quit.  The notice provided the payment procedure that the tenant had used for a year.  The procedure, however, was a website for electronic payments without any physical address.

The trial court in Santa Monica concluded that the website sufficed.  The Appellate Division of the Los Angeles Superior Court disagreed.  The statute required a person and an address.  Even though a website is an “address,” the requirement of a person to whom payment can be made implies a requirement of a physical address.  Without it, the notice is invalid and the landlord must start over.

If you are a landlord, then be careful.  If you are a tenant, then this case shows how a minor technical problem can delay an eviction.

A New State Budget and Another Tough Year Ahead for the Courts : Contra Costa Lawyer Online

A New State Budget and Another Tough Year Ahead for the Courts : Contra Costa Lawyer Online.

Stephen Nash, the Executive Officer of the Superior Court of Contra Costa County, provides a sobering look at court financing in Contra Costa County and throughout the state.  These funding shortfalls hit the civil side most dramatically since the criminal side must keep up to preserve constitutional rights of the accused.  As a result, civil justice becomes a hazy event far in the future.

Send a message to your State Senator or Assembly representative to  provide proper funding to our courts.  It is not just an attorney problem, it is a problem for all Californians.

When Is A Defect Patent?

Click for Delon Hampton v. Superior Court.

Delon Hampton provides a useful summary of latent and patent construction defects.  This is a critical analysis for construction litigation as a claimant has as many as ten years from the date of completion to sue for latent defects while only four for patent ones.

The case involved  a stairway at a train station that was too narrow with a handrail that was too low.  The court recognized that a defectively secured handrail was latent because the defect was not readily apparent.  Whether a stairway is narrow or a handrail too low is apparent, even if most people would not recognize the problem.

Builders and developers appreciate these statutes of repose as they provide some closure once four or ten years elapse from substantial completion.   The analysis, however, can often be subtle even when matters are right in front of your eyes.



Iskanian- The Evolution Of Arbitration Agreements In California

Click here for Iskanian opinion.

For the past several years, I have served as an update author of the CEB publication, California Real Property Remedies and Damages.  In past years, incorporating recent cases into the text was an easy way to provide a few hours of pro bono service and to keep abreast of an area of law near and dear to my practice.  Earlier this year, however, I had the giant task of incorporating the initial California fallout from the U.S. Supreme Court’s 2011 ruling in AT&T Mobility v. Concepcion. The case created tremendous tension between the California Supreme Court and its protection of consumers subject to unconscionable arbitration agreements and the United States Supreme Court, which interprets the Federal Arbitration Act (FAA) to require arbitration much more broadly than does California.

For example, in
Sonic-Calabasas A, Inc. v. Moreno (2013) 57 C4th 1109, the California Supreme Court overruled itself in light of Concepcion.  The California court previously held that an employer could not require an employee to agree to arbitration and to waive an administrative hearing to recover owed wages as a condition of employment. In Moreno, the California Supreme Court concluded that it could still enforce its own rules concerning unsconscionability provided that those rules do not interfere with the “fundamental attributes of arbitration.”   The California Supreme Court started down a path of acknowledging the preemptive nature of the FAA and the strong tide pulling in favor of even oppressive arbitration agreements.

Iskanian v. CLS Transportation Los Angeles
expanded the preemption of the FAA, affirming an arbitration agreement that banned employees from asserting a wage/hour claim as a class action. Iskanian followed Concepcion and overruled Gentry v. Superior Court (2007) 42 Cal.4th 443, which had permitted courts to disregard arbitration agreements that banned a class action if arbitration could not approximate the advantages of that class proceeding.

Justice Liu, however, left open a small door for California courts to hear matters otherwise subject to an arbitration agreement.   The California Private Attorneys General Act of 2004 (PAGA) found at California Labor Code, § 2698 et seq. provides a right to employees to step into the shoes of the state to seek civil penalties against an employer.  
Iskanian held that PAGA was a public action between an employer and the state, as opposed to a private action between an employer and employees, and that the FAA cannot intrude on the right of a state to litigate its claims in its courts.  

The breadth of FAA preemption continues to increase.  
Iskanian acknowledges this, but still takes enough of a stand to indicate that further action by the United States Supreme Court is not unimaginable.