CA Pub. Decisions

Where plaintiff's malicious prosecution claim was based on a defamation action by her former attorney that had been dismissed pursuant to anti-SLAPP statute, her lawsuit was within statutory definition of a Code of Civil Procedure Sec. 425.18 (b)(1) SLAPPback action, and defendant thus was not entitled to attorney's fees after prevailing on special motion to strike her claim. Where attorney's defamation action had included allegations that plaintiff had complained about him to State Bar but was not solely based on that communication, action was not illegal as a matter of law within meaning of Sec. 425.18(h) because it violated Business and Professions Code Sec. 6094(a) which forbids lawsuits predicated on communications to the State Bar and thus did not preclude attorney from moving to strike plaintiff's subsequent SLAPPback action. Notwithstanding 2005 amendment to Sec. 425.16(b)(3) providing that a determination that a plaintiff has established a probability of prevailing on his or her claim may not be used in any subsequent action or proceeding, court's denial of summary judgment against attorney's defamation action established probable cause to file that lawsuit, and trial judge properly granted attorney's special motion to strike subsequent malicious prosecution complaint.

Where plaintiff's malicious prosecution claim was based on a defamation action by her former attorney that had been dismissed pursuant to anti SLAPP statute, her lawsuit was within statutory definition of a Code of Civil Procedure Sec. 425.18 (b)(1) SLAPPback action, and defendant thus was not entitled to attorney's fees after prevailing on special motion to strike her claim. Where attorney's defamation action had included allegations that plaintiff had complained about him to State Bar but was not solely based on that communication, action was not illegal as a matter of law within meaning of Sec. 425.18(h) because it violated Business and Professions Code Sec. 6094(a) which forbids lawsuits predicated on communications to the State Bar and thus did not preclude attorney from moving to strike plaintiff's subsequent SLAPPback action. Notwithstanding 2005 amendment to Sec. 425.16(b)(3) providing that a determination that a plaintiff has established a probability of prevailing on his or her claim may not be used in any subsequent action or proceeding, court's denial of summary judgment against attorney's defamation action established probable cause to file that lawsuit, and trial judge properly granted attorney's special motion to strike subsequent malicious prosecution complaint.

Following the denial of its insurance claim, appellant Pacific Business Connections, Inc. (PBC) brought this action against its insurer, respondent St. Paul Surplus Lines Insurance Company (St. Paul). St. Paul asserted that it was required to cancel the insurance policy pursuant to Insurance Code section 673 (section 673) once it received notice from Premium Financing Specialists of California, Inc. (Premium), the company that financed the insurance premiums, that PBC had defaulted on its loan obligation. The trial court agreed, and granted St. Paul summary judgment. PBC appeals, contending that section 673 does not apply for a host of reasons.
Court are not convinced by any of PBCs arguments. Accordingly, Court affirm.

Assignment of firefighter, who lost leg in work-related accident, to duty involving training of firefighters instead of desired position at a fire station was not an adverse employment action, and thus did not violate Fair Employment and Housing Act or fundamental public policy, where the training assignment did not result in loss of rank, pay, overtime eligibility, or promotional opportunity, and did not subject firefighter to a hostile working environment.

In action against law firm and one of its attorneys in which plaintiff alleged that attorney a "non equity partner" in the firm improperly obtained moneys from a criminal client, who in turn had wrongfully obtained those moneys from plaintiff, evidence that firm's Web site promoted attorney as head of the firm's white collar criminal defense practice; that attorney's name is in the firm name; that retainer agreement identified firm as client's counsel; that client was billed by firm; that attorney used firm's letterhead in corresponding about client's case with prosecutor and received correspondence from prosecutor at firm's office, and that attorney identified himself to courts as being affiliated with firm was sufficient to establish triable issue as to firm's vicarious liability for actions of attorney. Triable issue of fact existed as to whether attorney's participation in removing cash from client's residence was a "foreseeable consequence" of firm's representation of client so that firm would be liable for the acts of attorney, where evidence that government was on verge of freezing client's bank accounts, that client lacked non cash assets sufficient to post bail, and that cash removed from residence was used to post bail and to pay legal fees would allow jury to reasonably conclude attorney participated in removing the money in an effort to help a client of the firm and to ensure that the firm's fees were paid; such activities being typical of the practice of a white collar criminal defense lawyer and therefore sufficient to render the firm liable under the doctrine of respondeat superior. Evidence that attorney or firm received money belonging to plaintiffs from client's residence did not establish a triable claim for breach of fiduciary duty where it was undisputed that such money was received by attorney and/or firm as legal fees and not as a fiduciary for plaintiffs.

Judicial Council's approval of CALCRIM standard instructions and withdrawal of previous endorsement of CALJIC instructions did not preclude judge from giving legally sound and properly worded CALJIC instruction. Giving of outmoded instruction, even if error, is subject to harmless error analysis and is harmless beyond a reasonable doubt when it correctly states the law and is properly worded.

Judicial Council's approval of CALCRIM standard instructions and withdrawal of previous endorsement of CALJIC instructions did not preclude judge from giving legally sound and properly worded CALJIC instruction. Giving of outmoded instruction, even if error, is subject to harmless error analysis and is harmless beyond a reasonable doubt when it correctly states the law and is properly worded.

Following the rejection of its protest to the award of a public contract to real party in interest Sharp Electronics Corp. (Sharp), plaintiff Imagistics International, Inc. (Imagistics) filed the present petition for a peremptory writ of mandate directing defendant DGS to accept its protest, or for a declaration that the award of the contract to Sharp was void. In bifurcated proceedings, the trial court first found that the standard of strict compliance was appropriate for the procedures for filing a protest, which plaintiff Imagistics had not satisfied. In its subsequent order, it did not find any basis for excusing plaintiff Imagistics from exhausting this administrative remedy.
Plaintiff Imagistics promptly appealed. It renews its arguments here, as well as invoking new ones for the first time. Court affirm.

A modification decision.

Cost award of more than $140,000 to prevailing plaintiff in complex business litigation was not an abuse of discretion where costs were incurred in summarizing voluminous data crucial to plaintiff's claims, for copying of exhibits at reasonable rates, and for equipment to project documents on a screen.

Public Resources Code Sec. 21167.4 requires dismissal of a CEQA petition on motion of the court or an interested party where plaintiffs do not file a request for hearing within 90 days of filing their petition even if the petition is filed prior to motion to dismiss. Denial of motion for relief from dismissal of CEQA petition based on Code of Civil Procedure Sec. 473 was not an abuse of discretion where evidence showed that while plaintiffs' attorney miscalendared filing deadline, error was discovered in time to place petition in court deposit box or file it by fax before 5 p.m. on last day, which would have made filing timely, and where attorney's alleged error in believing that filing after 90 day limit but before filing of motion to dismiss would be sufficient was not the cause of missing deadline since attorney would have filed on time but for erroneous belief that documents could not be filed after 4 p.m., an error that trial court reasonably found to be inexcusable given professional standard of care.

Under Government Code Sec. 66016(a), which provides that if local agency overcollects building inspection and permit fees, surplus "shall be used to reduce the fee or service charge creating the excess," county may meet its duty to reduce fees in the event of surplus by not only reducing its fees but also spending the surplus fee revenue to cover reasonable and necessary fee related service costs. Section 54985, which provides that "[i]ndirect costs that may be reflected in the cost of providing any product or service or the cost of enforcing any regulation shall be limited to those items that are included in the federal Office of Management and Budget Circular A 87 on January 1, 1984," incorporates the "reasonable and necessary" standard from OMB A 87 into the evaluation of the permissible indirect costs of providing the services for which the fees are charged.

Denial of motion to extend 180 day limit for exoneration of bail bond was not an abuse of discretion where there was no surveillance, no checking of address information, and no enlistment of local police or other recovery specialists in an effort to actually apprehend absconder within 180 days, even though surety was aware of his probable whereabouts for at least five months before the 180 day period expired. District attorney's expressed disinterest in extraditing absconder from Mexico did not constitute good cause to vacate order forfeiting bond where such disinterest was not expressed until after 180 day period expired; and such expression of disinterest would not necessarily have precluded extradition had absconder been either detained in the presence of or identified by a Mexican law enforcement officer, as required by statute on vacatur.

Juvenile court has jurisdiction to hold hearing on termination of parental rights pursuant to Welfare and Institutions Code Sec. 366.26 while awaiting issuance of remittitur after court of appeal's denial of parent's previous writ petition absent discretionary order by court of appeal granting stay.