RECENT CASE REVIEWS FROM THE CALIFORNIA COURT OF APPEALS [ JULY 2014 ]

July 2014 RECENT CASE REVIEWS FROM THE CALIFORNIA COURT OF APPEALS [ JULY 2014 ] Content CONSTRUCTIVE NOTICE OF SIDEWALK DEFECT Heskel v. City of San Diego (2014) Case No. DO62186 June 13, 2014 EXCLUSION OF EXPERT WITNESSES Staub v. Kiley (2014) Third Appellate District Case No. CO71500 June 16, 2014 WRONGFUL TERMINATION Kim v. Konad USA Distribution, Inc. (2014) Case No. G048443 June 12, 2014 STANDING Hector F. v. El Centro Elementary School District (2014) Case No. ECU06862 June 24, 2014 IMPLIED BREACH OF MERCHANTABILITY Brand v. Hyundai America (2014) Case No. GO48880 June 17, 2014 CONSTRUCTIVE NOTICE OF SIDEWALK DEFECT Heskel v. City of San Diego Constructive notice cannot be inferred solely based on the dangerous condition being present for a significant length of time. FACTS: Plaintiff was injured while walking down a city street. Plaintiff alleged that the City failed to have adequate lights or warnings regarding the condition of the sidewalk where he was walking. He presented evidence in the form of declarations that a protruding base of a hollow metal post cemented into a city sidewalk had been present for about two years. Additionally, after the plaintiff fell the City placed a No Parking sign into the base. The City filed a Motion for Summary Judgment arguing that they did not have actual or constructive notice of the condition. In support of their motion, the City filed declarations from city workers with access to information that the City never received any complaints or reports about the sidewalk in the area where the Plaintiff fell. The City s summary judgment motion was granted by the trial court. sdnlaw.com 2014 SPINELLI DONALD NOTT. ALL RIGHTS RESERVED. 815 S Street, Second Floor, Sacramento, CA 95811 T 916.448.7888 F 916.448.6888

HOLDING: The Court of Appeals affirmed. The issue is whether the City had constructive notice of a dangerous condition. CCP 835(b) states, that a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes: 1) the property was in a dangerous condition at the time of the injury, 2) the plaintiff s injury was proximately caused by the dangerous condition, 3) the dangerous condition created a reasonably foreseeable risk of the kind of injury the plaintiff incurred; and 4) the public entity had actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to have taken measure to protect against it. The court held that constructive notice under 835.2(b) requires that the dangerous condition exist for such a period of time and was of an obvious nature that the City should have discovered the condition. Here, the plaintiff only presented declarations that the condition of the sidewalk existed for more than a year and argued the City had constructive notice because of the length of time of the condition. However, the City presented substantial evidence that the condition was not obvious or known to them. As the plaintiff failed to establish that City had knowledge of the condition, it was proper to grant the City s Motion for Summary Judgment. It is unknown if the City created the condition, which is another basis for liability, as the opinion was silent on this issue. EXCLUSION OF EXPERT WITNESSES Staub v. Kiley (2014) A party first must be in compliance with CCP 2034.300 before attempting to exclude the opposing party s expert witnesses. FACTS: Plaintiff sued for medical malpractice. Without having further tests or evaluations, plaintiff was misdiagnosed with deep vein thrombosis in May 2008. Ultimately, in January 2009, he was correctly diagnosed with May-Thurner Syndrome which requires treatment within two weeks of the first symptom to be effective. Having missed that treatment window, plaintiff will now have pain and symptoms that will never resolve. On December 6, 2011 the Defendant s served by mail a demand for an expert witness exchange. December 27, 2011 was the disclosure date for the experts. Due to various reasons, the plaintiffs failed to make that disclosure deadline. The plaintiffs proof of service was dated January 9, 2012. However, the defendants declared that they received the disclosure by fax on January 12, 2012 and by mail on January 14, 2012 with a postmark date of January 13, 2012. On February 2, 2014, the plaintiffs made their experts available to be deposed. Defendants declined as the plaintiffs expert disclosure were untimely and they had been severely prejudiced by the late availability for the deposition. On February 14, 2012, (first day of trial) defendants moved in limine to exclude the plaintiffs expert witnesses based on the untimely disclosure and the failure of the plaintiffs to seek leave to make the late disclosures. Plaintiffs filed an opposition motion, that the late disclosure was not unreasonable nor prejudicial to the defendants. The plaintiffs further argued that the time to disclosure experts should have been extended as the demand was mailed. The trial court granted the defendant s motion in limine and precluded the plaintiffs expert witnesses. The trial court then denied the plaintiffs motion for reconsideration and granted the defendants nonsuit motion. Under CCP 2034.220, after the initial trial date is set, any party can trigger an expert witness exchange by a timely written demand. There are consequences for failing to comply with the demand. CCP 2034.300 states in pertinent part that, on objection of any party who has made a complete and timely compliance with 2034.260 the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: a) list the witness as an expert under

Section 2034.260, b) submit an expert witness declaration, c) produce reports and writings of expert witnesses under section 2034.270, d) make that expert available for a deposition. HOLDING: Reversed, as the trial court erred in excluding the plaintiffs experts. The Court of Appeals held that the plaintiffs were correct that the defendants lacked standing to file a motion to exclude their experts as the defendants themselves were not in compliance. The Court noted that, The specific date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand whichever is closer to the trial date. See CCP 2034.230. Under the CCP 1013, when the demand is served within the State by mail, the time is extended by five days. Here, the defendants mailed the demand and they failed to extend the deadline under 1013. With the five day extension, the new deadline would have been January 2, 2012, not December 27, 2011. As the defendants prematurely asserted an exchange deadline, they were not in compliance with the timing required under CCP 2034.260. The Court of Appeals found that the plaintiffs failure to comply with the defendants demand was not so unreasonably that their experts should be excluded. From our perspective this holding is a departure from long accepted practice, as the five additional days for mailing has not been used. IMPLIED BREACH OF MERCHANTABILITY Brand v. Hyundai America (2014) Under the Implied Warranty of Merchantability, a defect that causes a legitimate safety concerns is not fit for ordinary use FACTS: Mr. Brand, an accountant, leased a new Hyundai Genesis sedan. The day after he leased it, the vehicles sunroof spontaneously and repeatedly open and closed on its own. Mr. Brand was unable to stop it. The sunroof s movements were distracting while he was driving and caused his work documents to be blown around in the vehicle. Mr. Brand returned the vehicle to Hyundai. They informed him the problem was a defective sunroof switch assembly and they would need to order the part. The estimated time to fix the sunroof was 24 hours. A week after dropping the new vehicle off, Mr. Brand received a call that it was now ready. However, Hyundai called later that day and said that the part they ordered had failed. The next day Hyundai called and said a factory sunroof specialist technician was coming out. When Mr. Brand arrived at the dealership later that day, the vehicle was not ready because the technician had not shown up. Hyundai s general manager said that he would call Mr. Brand by 10am the following day. When the general manager failed to call by noon, Mr. Brand decided that he wanted to return the defective vehicle and emailed Hyundai. Two weeks later, Mr. Brand received a response from corporate that they would not agree to the rescission of the contract but would pay his first two lease payments. Mr. Brand sued for breach of implied warranty of merchantability. The defendants filed and the trial court granted their motion for non-suit. The Song-Beverly Consumer Warranty Act allows the seller a reasonable number of repair attempts within 30 days, before the buyer can rescind the contract. Relying on that act, the Trial Court granted Hyundai s motion for non-suit at the end of Plaintiff s evidence ruling that, the law of implied warranty does not require that a vehicle be defect free when it is delivered to a customer. HOLDING: Reversed and remanded. Merchantability means that the goods are fit for ordinary use. Therefore, a new vehicle does not need to be perfect, just reasonably suited for ordinary use. Keegan v, American Honda Motor Co., Inc. (C.D. Ca; 2012) 838 F. Supp.2d 929, 945. The Court of Appeals held that a jury could find that the sunroof that opens and closes on its own is a safety hazard because it is a

distraction, can cause the content inside the vehicle to be blown around, can allow natural elements (rain/snow) to enter the interior of the vehicle, or objects entering and exiting the vehicle through the sunroof. The Non-suit should have been denied because a jury could conclude that the defective sunroof was a safety flaw and not fit for ordinary use. WRONGFUL TERMINATION Kim v. Konad USA Distribution, Inc. (2014) The affirmative defense that the plaintiff failed to exhaust the administrative remedies must be timely raised. FACTS: In 2006, plaintiff Ms. Kim, worked as an account manager at Konad s a distribution and sale of nail art kits business. In 2007, Dong Whang, the CEO and sole shareholder began to sexually harass Ms. Kim. In 2010, Ms. Kim wrote that she would not be returning to work due to the hostile work environment. In 2011, Ms. Kim filed suit under the CA Fair Employment and Housing Act alleging causes of action for sexual harassment (quid pro quo), sexual harassment (hostile work environment), and retaliation. Additionally, under tort law, Ms. Kim sued for wrongful termination in violation of public policy. Defendant s answer alleged an affirmative defense that Ms. Kim did not exhaust her administrative remedies required by Government Code Section 12960. At trial, the defense counsel did not argue that Ms. Kim failed to exhaust her administrative remedies. The only time the issue of exhaustion of administrative remedies was raised was during Ms. Kim s testimony. Ms. Kim alleged that she filed timely complaints against the defendants with the Department of Fair Employment and Housing (DFEH) and that she received her right to sue notification, which was admitted as a late exhibit. Defendant moved for judgment under CCP 631.8 based on there being a lack of evidence to support the substantive elements of the plaintiff s causes of action. The trial court only granted judgment as to the retaliation claim. The trial court entered a statement of decision that awarded Ms. Kim $60,000 in her sexual harassment and wrongful termination claims. The defendant objected that the court lacked jurisdiction because Ms. Kim failed to exhaust her administrative remedies. The plaintiff opposed arguing that the defendant waived the argument. Additionally, the plaintiff attached documents that she obtained through a public records request to DFEH to her opposition. The defendant claimed that it would be improper to rely on these new documents as they were not admitted at trial. HOLDING: Affirmed. The Court of Appeals held that before filing suit, an employee must exhaust their administrative remedies, including receiving a right to sue letter. See Romano v. Rockwell International Inc., (1996) 14 Cal.4th 479, 492. It is the plaintiff s burden to prove that they have exhausted the administrative remedies. The Court noted that, although earlier cases tended to view the exhaustion doctrine as invalidating a court s subject matter jurisdiction, thus allowing a defendant to raise it at any time, later cases have generally conclude[d] a defendant waives the defense by failing to timely assert it. Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 135. Here, the defendants did not request dismissal based on failure to exhaust until after the submission of the case for decision at which time it was too late. STANDING Hector F. v. El Centro Elementary School District (2014) A private individual as a taxpayer has standing to bring an action against a school district under the Education Code to enforce antiharassment and antidiscrimination plans because it is in the public interest to prevent bullying.

FACTS: Plaintiff is a father of 3 children. His oldest son, Brian, was subject to harassment and bullying by other children because of his emotional disabilities and English not being his primary language. Brian was forcibly restrained, beaten, kicked and subject to derogatory comments and ethnic slurs. Hector alleges that the school did not intervene, but rather suggested that Brian change classrooms. Hector brought claims for damages for Brain and on his own behalf as a taxpayer. Hector alleges that the school did not comply with the anti-bullying requirements under the Government and Education Codes. The school did not adopt or implement safety plans against bullying under the requirements of Education Code 32282, which requires public schools to implement discrimination and harassment policies to prevent bullying. The District filed a demurrer that neither Hector nor Brian (who had graduated) had standing, which was granted by the trial court. HOLDING: Reversed and remanded. Hector has identified a legitimate public interest that schools should be free of bullying and harassment. The general rule is that only someone who is beneficially interested may be issues a writ of mandate. See Green v. Obled (1981) 29 Cal.3d 126, 144. However, there is an exception to the general rule, where the question is one of public right and the object of the mandamus is to procure the enforcement of public duty the lawsuit may be brought by a citizen as he would have sufficient interest in having the laws executed and the duty in question enforced. Board of Soc. Welfare v. County of LA (1945) 27 Cal.2d 98, 100-101. The Court of Appeals ruled that as a citizen and a tax payer, Hector has standing to bring the lawsuit. sdnlaw.com 2014 SPINELLI DONALD NOTT. ALL RIGHTS RESERVED. 815 S Street, Second Floor, Sacramento, CA 95811 T 916.448.7888 F 916.448.6888