Torts/Products Issues Pending In California Supreme Court
USE NOTE: The information in this bulletin, including the framing of the issue presented, is taken from the California Supreme Court’s official website. Citations to the court of appeal's opinion are for informational purposes only. The grant of review automatically vacates the opinion, which cannot be cited as precedent.
Prop. 64 & class actions. (1) To bring a class action under Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.), as amended by Proposition 64, must every member of the proposed class have suffered “injury in fact,” or is it sufficient that the class representative comply with that requirement? (2) In a class action based on a manufacturer’s misrepresentation of a product, must every member of the class have actually relied on the manufacturer’s representations? In re Tobacco II Cases, formerly at 142 Cal.App.4th 891, No. S147345, rev. granted 11/1/06. Also: court granted review on a hold for same issue: Pfizer, Inc. v. Superior Court, formerly at 141 Cal.App.4th 290, No. S145775.
Primary assumption of risk. Does the doctrine of primary assumption of the risk apply when defendant hits a golf ball from the tee without ascertaining the location of another golfer in his party and the ball struck and injured the other golfer? Shin v. Ahn, 141 Cal.App.4th 726, No. S146114, rev. granted 10/25/06.
Cell Providers versus Local Regulation. (1) Do the statutes that give “telephone corporations” the right to erect lines and other necessary fixtures in the public right-of-way (Pub. Util. Code §§ 7901, 7901.1) apply to wireless telecommunications providers? (2) Does section 7901.1 (a) - which gives local governments the right to control the “time, place and manner in which roads . . . are accessed” - permit a county ordinance to regulate the aesthetics of cellular towers erected in the public right-of-way? Sprint Telephony PCS, L.P. v. County of San Diego, S145541, 140 Cal.App.4th 748, review granted 9/13/06.
Is Rees-Levering Preempted? The Rees-Levering Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) requires a creditor to include certain disclosures in a notice of intent to dispose of a vehicle after it has been repossessed; the creditor’s right to seek a deficiency judgment is conditioned on compliance with these requirements. Are the Rees-Levering provisions preempted by the federal Home Owners’ Loan Act (12 U.S.C. § 1461 et seq.) when the creditor is a federally chartered savings institution? WFS Financial, Inc. v. Superior Court, S145304, formerly at 140 Cal.App.4th 637, review granted 9/20/06. Dismissed.
Public entity/dangerous condition liability. (1) Is a public entity liable under the Tort Claims Act for an injury caused by a dangerous condition on the public entity’s property only if it acted negligently or wrongfully, or is it sufficient that the public entity created the dangerous condition? (2) Who bears the burden of proof? Is the reasonableness of the public entity’s conduct in creating the condition an element of the plaintiff’s claim, such that plaintiff bears the burden of proof, or is it an affirmative defense on which the public entity bears the burden of proof? Metcalf v. County of San Joaquin, S144831, formerly at 139 Cal.App.4th 969, review granted 9/20/06.
Repair and abate. (1) Does appointment of a receiver for a substandard building under Health & Safety Code § 17980.7(c) require service of an “order or notice to repair or abate” on the property owner? (2) Is substantial compliance with the requirement of first serving a § 17980.6 order or notice to repair or abate sufficient to permit appointment of a receiver? (3) Did the trial court abuse its discretion in approving the receiver’s recommendation to demolish the residence where the owner objected and there was ample equity in the property to pay an independent contractor to correct all code violations? City of Santa Monica v. Gonzalez, S145571, 140 Cal.App.4th 1134, review granted 9/13/06.
Public entity liability for § 1983 Violations. Can a municipality be held liable for damages under the federal Civil Rights Act (42 U.S.C. § 1983) for obtaining a preliminary injunction to enforce an ordinance that is later found invalid as an unconstitutional impingement on First Amendment free speech rights? Manta Management Corp. v. City of San Bernardino, S144492, formerly at 139 Cal.App.4th 447, mod. 139 Cal.App.4th 1209b, review granted 8/30/06.
Prop. 64 & class actions. (1) To bring a class action under Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.), as amended by Proposition 64, must every member of the proposed class have suffered “injury in fact,” or is it sufficient that the class representative comply with that requirement? (2) In a class action based on a manufacturer’s misrepresentation of a product, must every member of the class have actually relied on the manufacturer’s representations? In re Tobacco II Cases, formerly at 142 Cal.App.4th 891, No. S147345, rev. granted 11/1/06. Also: court granted review on a hold for same issue: Pfizer, Inc. v. Superior Court, formerly at 141 Cal.App.4th 290, No. S145775.
Primary assumption of risk. Does the doctrine of primary assumption of the risk apply when defendant hits a golf ball from the tee without ascertaining the location of another golfer in his party and the ball struck and injured the other golfer? Shin v. Ahn, 141 Cal.App.4th 726, No. S146114, rev. granted 10/25/06.
Cell Providers versus Local Regulation. (1) Do the statutes that give “telephone corporations” the right to erect lines and other necessary fixtures in the public right-of-way (Pub. Util. Code §§ 7901, 7901.1) apply to wireless telecommunications providers? (2) Does section 7901.1 (a) - which gives local governments the right to control the “time, place and manner in which roads . . . are accessed” - permit a county ordinance to regulate the aesthetics of cellular towers erected in the public right-of-way? Sprint Telephony PCS, L.P. v. County of San Diego, S145541, 140 Cal.App.4th 748, review granted 9/13/06.
Is Rees-Levering Preempted? The Rees-Levering Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) requires a creditor to include certain disclosures in a notice of intent to dispose of a vehicle after it has been repossessed; the creditor’s right to seek a deficiency judgment is conditioned on compliance with these requirements. Are the Rees-Levering provisions preempted by the federal Home Owners’ Loan Act (12 U.S.C. § 1461 et seq.) when the creditor is a federally chartered savings institution? WFS Financial, Inc. v. Superior Court, S145304, formerly at 140 Cal.App.4th 637, review granted 9/20/06. Dismissed.
Public entity/dangerous condition liability. (1) Is a public entity liable under the Tort Claims Act for an injury caused by a dangerous condition on the public entity’s property only if it acted negligently or wrongfully, or is it sufficient that the public entity created the dangerous condition? (2) Who bears the burden of proof? Is the reasonableness of the public entity’s conduct in creating the condition an element of the plaintiff’s claim, such that plaintiff bears the burden of proof, or is it an affirmative defense on which the public entity bears the burden of proof? Metcalf v. County of San Joaquin, S144831, formerly at 139 Cal.App.4th 969, review granted 9/20/06.
Repair and abate. (1) Does appointment of a receiver for a substandard building under Health & Safety Code § 17980.7(c) require service of an “order or notice to repair or abate” on the property owner? (2) Is substantial compliance with the requirement of first serving a § 17980.6 order or notice to repair or abate sufficient to permit appointment of a receiver? (3) Did the trial court abuse its discretion in approving the receiver’s recommendation to demolish the residence where the owner objected and there was ample equity in the property to pay an independent contractor to correct all code violations? City of Santa Monica v. Gonzalez, S145571, 140 Cal.App.4th 1134, review granted 9/13/06.
Public entity liability for § 1983 Violations. Can a municipality be held liable for damages under the federal Civil Rights Act (42 U.S.C. § 1983) for obtaining a preliminary injunction to enforce an ordinance that is later found invalid as an unconstitutional impingement on First Amendment free speech rights? Manta Management Corp. v. City of San Bernardino, S144492, formerly at 139 Cal.App.4th 447, mod. 139 Cal.App.4th 1209b, review granted 8/30/06.
Fraudulent wire transfers/banking. (1) Under the UCC (Cal. U. Comm. Code, § 11101 et seq.), does an accountholder’s notification to a bank that wire transfers were “unauthorized” satisfy the statutory requirement that an accountholder “object to the payment” for purposes of allocating loss between the accountholder and the bank when a fraudulent wire transfer is made? (2) Are an accountholder’s common law tort and contract claims against a bank arising out of fraudulent payment orders for wire transfers preempted by the provisions of Division 11? Zengen, Inc. v. Comerica Bank, S142947, formerly at 137 Cal.App.4th 861, review granted 7/12/06.
Pleading requirements, child abuse revival statute. Plaintiffs filed suit against the City of Los Angeles and Boy Scouts of America for sexual abuse by a city police officer while they participated in police department Explorer program in the 1970’s. Issue: are their claims barred by the statute of limitations, or did they sufficiently invoke CCP 340.1 (b)(2), which permits the revival of certain claims of sexual abuse that would otherwise be barred where the defendant “knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person”? Doe v. City of Los Angeles, S142546, formerly at 137 Cal.App.4th 438, review granted 6/21/06.
Physician/patient rights. Whether a doctor has a constitutional right, to refuse on religious grounds, to perform a medical procedure because of the patient's sexual orientation, or does the Unruh Act (Civil Code section 51) preclude such discrimination in the provision of medical services despite the doctor's religious beliefs? North Coast Women's Care Med. Group, Inc. v. Superior Court S142892, formerly at 137 Cal.App.4th 781, review granted 6/14/06.
Litigation privilege. Does California's litigation privilege, Civil Code section 47(b), bar a cause of action under the state constitution for invasion of privacy? Jacob B. v. County of Shasta, S142496, formerly at 137 Cal.App.4th 225, review granted 6/14/06.
Public agency release. Can a public agency's release of liability for recreational activities be effective as to ordinary negligence under Civil Code section 1668, as interpreted by Tunkel v. University of California (1963) 60 Cal.2d 92, but not be effective as to gross negligence? City of Santa Barbara v. Superior Court, S141643, formerly at 135 Cal.App.4th 1345, review granted 4/12/06.
Auditor liability. An auditor uncovers apparent fraud by a general partner in the course of auditing a limited partnership. May the auditor be held liable to limited partners on the theory that he aided and abetted the fraud by not issuing a report after the general partner terminates the audit? Frame v. PricewatershouseCoopers, LLP, S139410, formerly at 134 Cal.App.4th 396, mod. 134 Cal.App.4th 1394a, review granted 3/22/06. Review dismissed after settlement, Sept. 2006.
Government Tort Claims Act - applicable to contract claims? . Must a claim be presented under the Government Claims Act (Cal. Gov. Code, § 810 et seq.) before bringing an action against a public entity for breach of contract? City of Stockton v. Superior Court, S139237, formerly at 133 Cal.App.4th 1052m, review granted 2/1/06.
Products - sophisticated user. The "sophisticated user" doctrine bars manufacturer liability for failure to warn of a product risk that a sophisticated user should have recognized. (1) Does the doctrine apply in California? (2) If so, does it apply to strict liability causes of action, and who qualifies as a "sophisticated user?" Johnson v. American Standard, Inc., S139206, 133 Cal.App.4th 496, review granted 1/4/06.
Landowner liability for third party's criminal act. May the proprietor of a mobile home park be required to provide security guards or take other security measures to prevent gang-related violence on the premises? Castaneda v. Olsher, S138104, formerly at 132 Cal.App.4th 627, review granted 1/4/06.
Implied warranty. (a) Can the implied warranty of quality and fitness applicable to new homes be waived? (b) If so, was the implied warranty disclaimer at issue nonetheless unenforceable either because: it was not sufficiently conspicuous or because it was unconscionable? Hicks v. Superior Court, S123054, formerly at 115 Cal.App.4th 77, review granted 5/12/04. REVIEW DISMISSED 2/1/06 - CASE SETTLED.
Tobacco/preemption. Does the Federal Cigarette Labeling and Advertising Act preempt claims under the Unfair Competition Law for advertising that allegedly targeted minors? In re Tobacco Cases II, S12952, formerly at 123 Cal.App.4th 617, review granted 2/16/05.
Tobacco/limitation of actions. “(1) For the purpose of the statute of limitations period applicable under California law to a personal injury action alleging injury arising from smoking tobacco, are persons presumed to have been aware by 1988 that smoking causes addiction and other health problems? If California recognizes such a presumption, is it rebuttable and if so, when? (2) Under California law, if a plaintiff seeks damages resulting from an addiction to tobacco, does addiction constitute an injury causing all related claims to accrue at the time the plaintiff recognizes that he or she is addicted to tobacco, even if the plaintiff has not yet been diagnosed with an illness stemming from tobacco use?” Grisham v. Philip Morris U.S.A., S132772, certified question from 9th Circuit (see 403 F.3d 631), granted 8/10/05.
Products - sophisticated user. The "sophisticated user" doctrine bars manufacturer liability for failure to warn of a product risk that a sophisticated user should have recognized. (1) Does the doctrine apply in California? (2) If so, does it apply to strict liability causes of action, and who qualifies as a "sophisticated user?" Johnson v. American Standard, Inc., S139206, 133 Cal.App.4th 496, review granted 1/4/06.
Landowner liability for third party's criminal act. May the proprietor of a mobile home park be required to provide security guards or take other security measures to prevent gang-related violence on the premises? Castaneda v. Olsher, S138104, formerly at 132 Cal.App.4th 627, review granted 1/4/06.
Implied warranty. (a) Can the implied warranty of quality and fitness applicable to new homes be waived? (b) If so, was the implied warranty disclaimer at issue nonetheless unenforceable either because: it was not sufficiently conspicuous or because it was unconscionable? Hicks v. Superior Court, S123054, formerly at 115 Cal.App.4th 77, review granted 5/12/04. REVIEW DISMISSED 2/1/06 - CASE SETTLED.
Tobacco/preemption. Does the Federal Cigarette Labeling and Advertising Act preempt claims under the Unfair Competition Law for advertising that allegedly targeted minors? In re Tobacco Cases II, S12952, formerly at 123 Cal.App.4th 617, review granted 2/16/05.
Tobacco/limitation of actions. “(1) For the purpose of the statute of limitations period applicable under California law to a personal injury action alleging injury arising from smoking tobacco, are persons presumed to have been aware by 1988 that smoking causes addiction and other health problems? If California recognizes such a presumption, is it rebuttable and if so, when? (2) Under California law, if a plaintiff seeks damages resulting from an addiction to tobacco, does addiction constitute an injury causing all related claims to accrue at the time the plaintiff recognizes that he or she is addicted to tobacco, even if the plaintiff has not yet been diagnosed with an illness stemming from tobacco use?” Grisham v. Philip Morris U.S.A., S132772, certified question from 9th Circuit (see 403 F.3d 631), granted 8/10/05.
Tobacco/punitive damages. Grant & hold in Bullock v. Philip Morris - re $30 million punitive award - on constitutionality of punitive damages (ratio and punishment for conduct toward non-plaintiffs). Briefing deferred pending decision in Philip Morris v. Williams, cert granted.
Defamation, statute of limitations publication. When a publication containing a defamatory statement is available to the public but has very limited distribution, does the statute of limitations on a defamation cause of action begin to run at the time of the first general distribution (the “single publication rule”) or when the allegedly defamatory statement is or reasonably should have been discovered (the “discovery rule”)? Hebrew Academy of San Francisco v. Goldman, S134873, formerly at 129 Cal.App.4th 391, review granted 8/24/05.
Defamation & free speech. When a trial court has found that defendant in a defamation action has made repeated false defamatory statements against plaintiff and pecuniary compensation would not afford adequate relief in the event of future repeated statements, may the trial court enjoin defendant from continuing to make the same defamatory statements to third parties, or is such an injunction an unconstitutional prior restraint on speech? The court ordered briefing deferred pending the decision of the United States Supreme Court in Tory v.Cochran (Oct. 29, 2003, [nonpub. opn.]), certiorari granted September 28, 2004, No. 03-1488, __ U.S. __ [125 S.Ct. 26, 159 L.Ed.2d 856]. Balboa Island Village Inn, Inc. v. Lemen, S127904, formerly at 121 Cal.App.4th 583, grant & hold review granted 12/15/04.
Patent royalties & fiduciary duty. When an inventor or researcher entrusts a new discovery to another under a contract where the other party will develop, patent, and commercially exploit discovery in exchange for royalties, does a fiduciary relationship arise between the parties, a breach of which may support tort, and in an appropriate case punitive, damages, or should the arrangement be treated like an ordinary contractual agreement, a breach of which supports only contract and not punitive damages. City of Hope National Medical Center v. Genentech, Inc., S129463, formerly at 123 Cal.App.4th 306, mod. 123 Cal.App.4th 1501b, review granted 2/2/05.
Primary assumption of risk. Does primary assumption of the risk, as embodied in the “veterinarian’s rule,” bar a kennel worker bitten by a dog from suing the dog’s owner under Civil Code section 3342? Priebe v. Nelson, S126412, formerly at 119 Cal.App.4th 235, review granted 9/15/04. OPINION ISSUED 8/28/06.
Duty to disclose STD. (1) May a person be liable for failing to disclose to sexual partner that the person has a sexually transmissible disease only when the person actually knows he or she has the STD or also when the person reasonably should have known? (2) If the duty to disclose is limited to actual knowledge situations, did the discovery permitted by the trial court violate either traditional standards of discovery (e.g., relevance) or constitutionally protected rights of privacy? John B. v. Superior Court, S128248, formerly at 121 Cal.App.4th 1000, review granted 11/10/04.
Post-judgment settlement. Where a post-judgment settlement agreement (1) revises a damages award, (2) provides for the parties to withdraw their appeals but does not provide for an amended judgment, and (3) expressly preserves the defendant’s right to bring a malicious prosecution action, does the settlement agreement preclude a finding that the initial action was “favorably terminated” (in defendant’s favor) for purposes of the defendant’s subsequent malicious prosecution action? Seibel v. Mittlesteadt, S125590, formerly at 118 Cal.App.4th 406, review granted 9/1/04, issue limited 9/15/04.
Government liability, sports injuries. (1) Did a community college district have a special relationship giving rise to a legal duty of care to a student from another community college injured in a pre-season intercollegiate baseball game? (2) Does the Government Code immunity for hazardous recreational activities apply to the player’s claims for personal injury due to the defendant’s allegedly negligent conduct? Avila v. Citrus Community College Dist., S119575, formerly at 111 Cal.App.4th 811, review granted 12/10/03. OPINION ISSUED 4/6/06.
Defamation, statute of limitations publication. When a publication containing a defamatory statement is available to the public but has very limited distribution, does the statute of limitations on a defamation cause of action begin to run at the time of the first general distribution (the “single publication rule”) or when the allegedly defamatory statement is or reasonably should have been discovered (the “discovery rule”)? Hebrew Academy of San Francisco v. Goldman, S134873, formerly at 129 Cal.App.4th 391, review granted 8/24/05.
Defamation & free speech. When a trial court has found that defendant in a defamation action has made repeated false defamatory statements against plaintiff and pecuniary compensation would not afford adequate relief in the event of future repeated statements, may the trial court enjoin defendant from continuing to make the same defamatory statements to third parties, or is such an injunction an unconstitutional prior restraint on speech? The court ordered briefing deferred pending the decision of the United States Supreme Court in Tory v.Cochran (Oct. 29, 2003, [nonpub. opn.]), certiorari granted September 28, 2004, No. 03-1488, __ U.S. __ [125 S.Ct. 26, 159 L.Ed.2d 856]. Balboa Island Village Inn, Inc. v. Lemen, S127904, formerly at 121 Cal.App.4th 583, grant & hold review granted 12/15/04.
Patent royalties & fiduciary duty. When an inventor or researcher entrusts a new discovery to another under a contract where the other party will develop, patent, and commercially exploit discovery in exchange for royalties, does a fiduciary relationship arise between the parties, a breach of which may support tort, and in an appropriate case punitive, damages, or should the arrangement be treated like an ordinary contractual agreement, a breach of which supports only contract and not punitive damages. City of Hope National Medical Center v. Genentech, Inc., S129463, formerly at 123 Cal.App.4th 306, mod. 123 Cal.App.4th 1501b, review granted 2/2/05.
Primary assumption of risk. Does primary assumption of the risk, as embodied in the “veterinarian’s rule,” bar a kennel worker bitten by a dog from suing the dog’s owner under Civil Code section 3342? Priebe v. Nelson, S126412, formerly at 119 Cal.App.4th 235, review granted 9/15/04. OPINION ISSUED 8/28/06.
Duty to disclose STD. (1) May a person be liable for failing to disclose to sexual partner that the person has a sexually transmissible disease only when the person actually knows he or she has the STD or also when the person reasonably should have known? (2) If the duty to disclose is limited to actual knowledge situations, did the discovery permitted by the trial court violate either traditional standards of discovery (e.g., relevance) or constitutionally protected rights of privacy? John B. v. Superior Court, S128248, formerly at 121 Cal.App.4th 1000, review granted 11/10/04.
Post-judgment settlement. Where a post-judgment settlement agreement (1) revises a damages award, (2) provides for the parties to withdraw their appeals but does not provide for an amended judgment, and (3) expressly preserves the defendant’s right to bring a malicious prosecution action, does the settlement agreement preclude a finding that the initial action was “favorably terminated” (in defendant’s favor) for purposes of the defendant’s subsequent malicious prosecution action? Seibel v. Mittlesteadt, S125590, formerly at 118 Cal.App.4th 406, review granted 9/1/04, issue limited 9/15/04.
Government liability, sports injuries. (1) Did a community college district have a special relationship giving rise to a legal duty of care to a student from another community college injured in a pre-season intercollegiate baseball game? (2) Does the Government Code immunity for hazardous recreational activities apply to the player’s claims for personal injury due to the defendant’s allegedly negligent conduct? Avila v. Citrus Community College Dist., S119575, formerly at 111 Cal.App.4th 811, review granted 12/10/03. OPINION ISSUED 4/6/06.
