Case Decisions

In Lackner v. North (2006) 135 Cal.App.4th 1188 [37 Cal.Rptr.3d 863] the Third District recognized that, based on the doctrine of primary assumption of the risk articulated by the California Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2], snow-boarders have no duty to protect other users of the slopes against inherent risks of their sport.  However, citing Yancey v. Superior Court (1994) 20 Cal.App.4th 558 [33 CalRptr.2d 777], the court said evidence that defendant engaged in snow-boarding racing down a run he had never used before at an extremely fast pace while looking back to check the position of other racers raises a triable issue of whether defendant’s collision with plaintiff, a skier standing on a flat area of the run, resulted from a risk inherent in skiing and snowboarding, or from recklessness, which could make him liable.  The court added that without knowledge that a snowboarder would act recklessly, neither a ski resort nor the coach of the snowboarder’s high school snowboarding team had a duty to protect plaintiff against such recklessness.

In Arocho v. California Fair Plan (2005) 136 Cal.App.4th 461 [35 Cal.Rptr.3d 200] the Second District acknowledged that an insurance broker is not ordinarily the agent of the insurer from whom a policy is procured.  Citing Migliore v. Mid-Century Insurance (2002) 97 Cal.App.4th 592 [118 Cal.Rptr.2d 548], however, it held an insured’s communication with the broker can satisfy the requirement of Code of Civil Procedure section 340.9, which revives claims that otherwise would have been time-barred against insurers for damage resulting from the Northridge earthquake only if the insured contacted the insurer or its representative about the damage prior to January 1, 2000.

In Renteria v. Juvenile Justice (2005) 135 Cal.App.4th 903 [37 Cal.Rptr.3d 777] the Third District reversed the trial court’s denial of a petition for relief from claim-presentation requirements of the Government Claims Act (Government Code section 810 et seq.). Citing Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288 [99 Cal.Rptr.2d 173], the court held that an attorney’s reliance on an office secretary to keep track of calendaring deadlines and the secretary’s erroneous belief that a public entity promising to preserve evidence for litigation of a claim has received notice of that claim, which resulted in presentation of the claim nine days after the deadline, was objectively reasonable and qualifies as excusable neglect.  Since there was no prejudice to the public entity, relief should have been granted.

In Strebel v. Brenlar (2005) 135 Cal.App.4th 740 [37 Cal.Rptr.3d 699] defendant was a real estate agent who represented both sides in the sale of residential realty in Sonoma County, and who fraudulently concealed from the buyer facts relating to encumbrances on the title that eventually prevented escrow from closing.  The buyer, relying on information the agent had given him, sold his house in San Bruno and deposited the proceeds of the sale in an interest-bearing account.  By the time he learned that escrow would not close on the Sonoma County property, the rapidly accelerating real estate market had priced him out.  The First District held that since the agent was his fiduciary, damages for the fraud could include diminution in the buying power of the proceeds of plaintiff’s sale and expenses he incurred in renting living quarters.  The court cited Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226 [44 Cal.Rptr.2d 352] and recognized that it did not resolve a split or authority among Court of Appeal decisions regarding the measure of damages for intentional misrepresentation by a fiduciary.

In Hinesley v. Oakshade (2005) 135 Cal.App.4th 289 [37 Cal.Rptr.3d 364] a landlord’s agent negotiating with plaintiff about the rental of space in a shopping mall stated that certain other businesses would be occupying space in the mall and pointed on a site map to locations they would be occupying space in the mall and pointed on a site map to locations they would be occupying.  The Third District found that this was an implied assertion that those businesses had already signed leases.  Citing Engalla v. Permanente (1997) 15 Cal.4th 951 [64 Cal.Rptr.2d 843], the court found that the assertion related to a material fact.  However, a clause in the lease signed by plaintiff providing that no representations had been made regarding other tenants in the shopping mall and that plaintiff was not relying on any such representations should have motivated plaintiff to investigate further, and his failure to do so was sufficiently persuasive evidence that he was not relying on those representations to justify summary judgment for defendant in plaintiff’s fraud action.

In Kelly v. Stamps.com (2005) 135 Cal.App.4th 1088 [38 Cal.Rptr.3d 240] plaintiff’s former employer moved for summary judgment in her action for pregnancy discrimination in violation of the Fair Employment and Housing Act (Government Code sections 12900 et seq.).  In support of its motion, defendant claimed that plaintiff was fired because of a reduction in workforce.  In opposition, plaintiff presented evidence that she was seven months pregnant and about to take a promised paid maternity leave when she was terminated despite a record of excellence in her executive responsibilities.  She also submitted the declarations of two company executive stating that they told the company CEO that plaintiff should be retained because she was the only person qualified to run the restructured department, and that the CEO dismissed their advice saying plaintiff had “checked out.”  Plaintiff declared that subsequent to her termination, the CEO falsely told her she had never been on anyone’s list of employees who should be retained. In reversing summary judgment for defendant, the Second District cited Guz v. Bechtel (2000) 24 Cal.4th 317 [100 Cal.Rptr.2d 352]; and Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 [107 Cal.Rptr.2d 841], finding that plaintiff met the burden of raising questions of fact regarding whether defendant’s proffered reason for the termination was pre-textual.

In 1231 Euclid Home Owners’ Association v. State Farm and Casualty Co. (2005) 135 Cal.App.4th 1008 [37 Cal.Rptr. 3d 795] the Second Distr5ict cited Vu v. Prudential (2001) 26 Cal.4th 1141 [113 Cal.Rptr.2d 70]; and Rosenblum v. Safeco Insurance Co. (2005) 126 Cal.App.4th 847 [24 Cal.Rptr.3d 427] in finding that an insured’s voluntary withdrawal of its insurance claim for damage resulting from the Northridge earthquake effectively resolved the claim, and once resolved, it could not be resurrected by Code of Civil Procedure section 340.9, which, under certain circumstances, extends the time to sue insurers for such coverage.

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