CA Pub. Decisions

A bystander may not recover for negligent infliction of emotional distress when she merely believes that it is more likely than not that her husband has been injured upon hearing a loud crash.

In these original proceedings we hold that plaintiffs are not exempt from the overtime compensation requirements imposed by California law. Defendants are insurance companies. Plaintiffs are the companies claims adjusters, who seek damages based on overtime work for which they allege they were not properly paid. Plaintiffs claims are governed by two different California regulations: Wage Order 4 applies to claims arising before October 1, 2000, and Wage Order 4-2001 applies to claims arising thereafter. The matter is before us on the parties cross petitions for writ review.
Defendants claim that the administrative exemption to the overtime compensation requirements covers the adjusters. Plaintiffs claim that they are not covered by that exemption. Their dispute turns on the relationship between the administrative exemption and a legal distinction known in the case law as the administrative/production worker dichotomy. The meaning of that phrase will become clear in due course. For now, it suffices to say that the trial court originally certified plaintiffs proposed class on the ground that application of the administrative/production worker dichotomy was a predominant issue and could well be dispositive with respect to the administrative exemption. Later, however, the court revisited the issue and decertified the class for all claims arising after October 1, 2000, on the ground that under Wage Order 4 2001, but not under Wage Order 4, the administrative/production worker dichotomy is neither dispositive nor a predominant issue that would justify class treatment of plaintiffs claims.
As the trial court recognized, the only cases interpreting the administrative exemption under Wage Order 4 are Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805 (hereafter Bell II), and, to a more limited extent, Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715 (hereafter Bell III). There is no case law interpreting the administrative exemption under Wage Order 4-2001. Under Wage Order 4 as interpreted by the Bell cases, the administrative/production worker dichotomy would indeed be predominant and dispositive in cases like the one before us.
Court agree with the Bell cases concerning the role of the dichotomy under Wage Order 4, and Court hold that the dichotomy plays the same role under Wage Order 4 2001. On that basis, Court grant plaintiffs petition and deny defendants petition.

Voicemail messages were protected communications for purposes of the anti SLAPP statute where they related to litigation contemplated by both plaintiff and defendant. Since such messages were also protected by the litigation privilege, plaintiff was unlikely to prevail in litigation, and trial court erred in denying anti SLAPP motion.

A modification decision.

Petitioners' repeated objections to project addendum voiced at various public meetings were sufficient to satisfy CEQA exhaustion requirement where agency did not provide for a public comment period or provide the public with notice that it was preparing an addendum. City's decision to approve modified project with addendum rather than to require a supplemental EIR was unsupported by substantial evidence with respect to impact on police services where the addition of over 800 residential units and features designed to encourage pedestrian use of the area established that changes in the modified project would increase the original project's impact, but SEIR was not required to address other issues where there was substantial evidence that modified project's impacts would be no more severe than original project's as to those aspects.

Trial court did not abuse its discretion by abstaining from adjudicating Unfair Competition Law action seeking restitution and injunctive relief to require owners and operators of skilled nursing and intermediate care facilities to comply with certain statutory nursing hour requirements where adjudicating the alleged controversy would have required trial court to become involved in complex health care matters within the jurisdiction of the Department of Health Services.

Alleged faxing of unsolicited advertisement did not violate Telephone Consumer Protection Act of 1991, pursuant to the act's "established business relationship" exception, where plaintiff and defendant had done business in the past, and plaintiff, while rejecting defendant's subsequent offers, did not tell defendant to stop phoning or faxing.

Where tenants brought action seeking declaration of their rights with regard to possession of rental housing that landlord sought to remove from rental market under Ellis Act, and trial judge ordered that action be stricken under anti SLAPP statute, landlord's subsequent eviction action did not render tenants' appeal of the order striking their declaratory action moot since the court in which the eviction proceeding was filed was not the exclusive forum for the resolution of the issues in dispute. Evidence that plaintiffs did not file declaratory action until after defendant served Ellis Act notices did not establish that plaintiffs' suit was a response to the notices, so trial court erred in ruling that suit implicated defendant's free speech or petition rights for purposes of the anti SLAPP statute. Anti SLAPP motion could not be premised on plaintiffs' prayer for injunctive relief to prevent "defendants from evicting plaintiffs from their residence," which defendants claimed was aimed directly at their right to petition the government for redress through a "judicial proceeding," since anti SLAPP motion must be directed at a cause of action, not a prayer for relief.

Substantial evidence supported trial court's finding that, for purposes of determining commercial drivers' right to reimbursement for their expenses, the drivers were employees within the meaning of Labor Code Sec. 2802 where employer controlled virtually every aspect of their performance, requiring them to wear uniforms and use specific scanners and forms, all obtained from employer and marked with employer's logo; to use trucks and scanners obtained from employer approved providers, usually financed through employer and repaid through deductions from the drivers' weekly checks; and to work full time with regular schedules, and regular routes were subject to being reconfigured by employer without regard to the drivers' resulting loss of income. Attorney fee award under private attorney general statute was excessive where trial court used same facts to determine that statute applied and that multiplier was appropriate, and also failed to take into consideration plaintiff's lack of success on some claims. Employer may require truck driver to provide his or her own truck regardless of whether driver is an employee or independent contractor.

Substantial evidence supported trial court's finding that, for purposes of determining commercial drivers' right to reimbursement for their expenses, the drivers were employees within the meaning of Labor Code Sec. 2802 where employer controlled virtually every aspect of their performance, requiring them to wear uniforms and use specific scanners and forms, all obtained from employer and marked with employer's logo; to use trucks and scanners obtained from employer approved providers, usually financed through employer and repaid through deductions from the drivers' weekly checks; and to work full time with regular schedules, and regular routes were subject to being reconfigured by employer without regard to the drivers' resulting loss of income. Attorney fee award under private attorney general statute was excessive where trial court used same facts to determine that statute applied and that multiplier was appropriate, and also failed to take into consideration plaintiff's lack of success on some claims. Employer may require truck driver to provide his or her own truck regardless of whether driver is an employee or independent contractor.

In determining which state's law to apply to the interpretation of an insurance policy, trial court must apply Civil Code Sec. 1646 which states that a contract is to be interpreted according to the law and usage of the place it is to be performed if the contract "indicate[s] a place of performance" and according to the law and usage of the place it was made if the contract "does not indicate a place of performance" rather than the governmental interests test. The intended place of performance of a liability insurance policy is the place of the insured risk. Under California law, where policy generally provided for both defense and indemnity of liability claims, and pollution liability endorsement deleted the exclusion that would otherwise remove pollution claims from the scope of the coverage, insurer was obligated to defend claims for damages arising from "pollution incidents" with respect to insured's oil and gas operations notwithstanding that the pollution liability endorsement did not mention a duty to defend. Where complaints in underlying actions alleged that insureds conducted oil and gas exploration, production, processing, and storage activities at specified site; that, as a result of those operations, hazardous substances were "spilled, emitted, released, [and] discharged" into the environment; that the operations resulted in "releases, discharges, fugitive emissions, leaks and spills"; and that, as a result, plaintiffs suffered damages of a nature and kind covered by the policy; and where said complaints did not foreclose the possibility that the damage was caused by a sudden and accidental release, complaints presented a possibility of coverage under the policy, and it was error for trial court to grant summary judgment absolving insurer of duty to defend.

In determining which state's law to apply to the interpretation of an insurance policy, trial court must apply Civil Code Sec. 1646 which states that a contract is to be interpreted according to the law and usage of the place it is to be performed if the contract "indicate[s] a place of performance" and according to the law and usage of the place it was made if the contract "does not indicate a place of performance" rather than the governmental interests test. The intended place of performance of a liability insurance policy is the place of the insured risk. Under California law, where policy generally provided for both defense and indemnity of liability claims, and pollution liability endorsement deleted the exclusion that would otherwise remove pollution claims from the scope of the coverage, insurer was obligated to defend claims for damages arising from "pollution incidents" with respect to insured's oil and gas operations notwithstanding that the pollution liability endorsement did not mention a duty to defend. Where complaints in underlying actions alleged that insureds conducted oil and gas exploration, production, processing, and storage activities at specified site; that, as a result of those operations, hazardous substances were "spilled, emitted, released, [and] discharged" into the environment; that the operations resulted in "releases, discharges, fugitive emissions, leaks and spills"; and that, as a result, plaintiffs suffered damages of a nature and kind covered by the policy; and where said complaints did not foreclose the possibility that the damage was caused by a sudden and accidental release, complaints presented a possibility of coverage under the policy, and it was error for trial court to grant summary judgment absolving insurer of duty to defend.

In determining which state's law to apply to the interpretation of an insurance policy, trial court must apply Civil Code Sec. 1646 which states that a contract is to be interpreted according to the law and usage of the place it is to be performed if the contract "indicate[s] a place of performance" and according to the law and usage of the place it was made if the contract "does not indicate a place of performance" rather than the governmental interests test. The intended place of performance of a liability insurance policy is the place of the insured risk. Under California law, where policy generally provided for both defense and indemnity of liability claims, and pollution liability endorsement deleted the exclusion that would otherwise remove pollution claims from the scope of the coverage, insurer was obligated to defend claims for damages arising from "pollution incidents" with respect to insured's oil and gas operations notwithstanding that the pollution liability endorsement did not mention a duty to defend. Where complaints in underlying actions alleged that insureds conducted oil and gas exploration, production, processing, and storage activities at specified site; that, as a result of those operations, hazardous substances were "spilled, emitted, released, [and] discharged" into the environment; that the operations resulted in "releases, discharges, fugitive emissions, leaks and spills"; and that, as a result, plaintiffs suffered damages of a nature and kind covered by the policy; and where said complaints did not foreclose the possibility that the damage was caused by a sudden and accidental release, complaints presented a possibility of coverage under the policy, and it was error for trial court to grant summary judgment absolving insurer of duty to defend.

Court of appeal has no jurisdiction to hear an appeal from an order on a bifurcated issue absent a certificate of probable cause from the trial court and an order from this court allowing the appeal on the bifurcated issue, and a purported appeal unaccompanied by those formalities will not be treated as a writ petition in the absence of exigent circumstances.