A SUMMARY OF RECENT DECISIONS OF PARTICULAR INTEREST TO CONSUMER ATTORNEYS

In Yan Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195 [33 Cal.Rptr.3d 617], the plaintiff’s sister was killed in an automobile accident while driving plaintiff’s vehicle.  Plaintiff, who was not present when the accident occurred, sued the vehicle’s manufacturer for negligent infliction of emotional distress, alleging that his sister’s death resulted from a negligently designed head restraint.  Citing Burgess v. Superior Court (1992) 2 Cal.4th 1064, the Sixth District held that the manufacturer of an allegedly defective automobile does not owe its owner a duty to protect against negligent infliction of emotional distress resulting from injury sustained by a person using the vehicle while the owner is not present.

In Castaneda v. Olsher (2005) 132 Cal.App.4th 627 [33 Cal.Rptr.3d 827], plaintiff was injured by a stray bullet during a gang fight at the trailer park where he lived.  He sued the landlord, claiming negligence in failing to take adequate security precautions.  There was evidence that defendant was aware that some park residents were gang members but made no attempt to control or evict them.  There had been several previous incidents of gang activity on the premises, including drug sales, verbal taunts, window smashing, rock throwing and gunshots. A tenant who had complained to the landlord, testified that the landlord responded by telling her to move if she didn’t like it.  There was also evidence that defendant instructed the park manager to rent to gang members, saying their money is as good as anyone else’s.  The trial court granted a motion for nonsuit on the authority of Ann M v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, but the Fourth District reversed.  The appellate court cited Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814 and Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 for the principle that the landholder owes invitees a duty to take reasonable steps to protect against foreseeable attack by third persons.  It added that knowledge of gang activity and gang-related crimes makes this kind of shooting much more foreseeable than a random criminal act would be, so courts more readily may impose a duty.  Although it was not convinced that the landlord in this case would have a duty to evict or not rent to gang members, it suggested that such a duty might arise if other security measures failed.  It remanded the case with directions for the trial court to instruct the jury that a property owner who is aware of ongoing criminal gang activity occurring on the premises has a duty to take reasonable and appropriate measures to attempt to protect residents from potential gang violence.

In Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458 [33 Cal.Rptr.3d 713], the Third District cited Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956 in support of its conclusion that workers’ compensation principles do not control in the application of respondeat superior to torts cases.  It said that under the doctrine of respondeat superior, an employer is not vicariously liable for the negligence of an employee who has not yet begun work, but who is entering the employee parking lot (i.e., the “premises line” exception to the “going and coming rule” as recognized by the workers’ compensation law, does not apply in tort lawsuits).

In Ross v. Ragingwire Telecommunications, Inc. (2005) 132 Cal.App.4th 590 [33 Cal.Rptr.3d 803], the Third District concluded that the Fair Employment and Housing Act does not require an employer to accommodate an employee’s disability by permitting the use of marijuana for medical purposes, although such use is permitted by California’s Compassionate Use Act.  The court cited Gonzales v. Raich (2005) ____ U.S. ____[125 S.Ct. 2195, 162 L. Ed.2d 1].

In Horsford v. Board of Trustees of California (2005) 132 Cal.App.4th 359 [33 Cal.Rptr.3d 644], the Fifth District found that temporary suspension of one police officer and transfer of other officers from their positions, even if all the officers continued receiving full salary and the transfers were within the terms of employment, may constitute adverse employment action if motivated by racial animus.  The court noted that the burden-shifting approach established by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 is helpful at preliminary stages of litigation, such as summary judgment and nonsuit, but that after litigation goes to a jury, employment discrimination may be proved by traditional evidence rather than by the burden-shifting approach.  It concluded that evidence an African-American supervisor was pervasively motivated by racial considerations at every opportunity, that he said of Caucasian employees he was subjecting to discipline that he was “moving those white boys out of here,” and that similar and more serious infractions by African-American officers did not result in discipline was sufficient to justify a jury’s finding that employment action taken by the supervisor was motivated by racial animus.

In Brown v. Department of Corrections (2005) 132 Cal.Appo.4th 520 [33 Cal.Rptr.3d 754], the Third District considered an action in which a prison employee alleged that he complained to the office of the Inspector General that he had been assaulted by two of his supervisors and that the person to whom he spoke manipulated him into saying that he could kill those supervisors and then reported his threats to the police, who arrested him, and to the warden, who sued him for an injunction.  After both matters were dismissed, the employee sued for retaliatory employment action, and the trial court sustained demurrers.  On appeal, the Third District affirmed.  Citing Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 39, the court found defendants’ statements on which plaintiff’s suit were based were protected by the Litigation Privilege.

In Brunius v. Parrish (2005) 132 Cal.App.4th 838 [34 Cal.Rptr.3d 55], the Third District held that when the sate Mining Board takes back regulatory powers previously delegated to a local lead agency, it retains its status as a state agency and functions as one, and is therefore immune from claims under the federal Civil Rights Act.  The court cited Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, and Pitts v. County of Kern (1998) 17 Cal.4th 340.

In Wilson v. Brawn of California, Inc. (2005) 132 Cal.App.4th 549 [33 Cal.Rptr.3d 769], plaintiff sued a mail order company under the Unfair Competition Law and False Advertising Law, claiming that defendant’s practice of adding an insurance fee to all orders in return for its undertaking to replace goods lost in transit was deceptive.  The trial court agreed and entered judgment for plaintiff.  But on appeal, the First District reversed, citing California State Electronics Assn. v. Zeos (1996) 41 Ca..App.4th 1270.  the court said the requirement that customers pay an insurance fee in addition to shipping charges established a standard CIF contract, which caused the risk of loss to pass to the customer upon delivery by the seller to a carrier.  The practice was not deceptive, since the seller’s undertaking to replace goods lost in transit gave the buyer protection it otherwise would not have had.

In Coleman v. Republic Indem. Ins. Co. of California (2005) 132 Cal.App.4th 403 [33 Cal.Rptr.3d 744], plaintiff brought an action for bad faith and negligent and intentional infliction of emotional distress against the insurer of a driver who had allegedly injured plaintiff through his negligence.  Plaintiff’s action was based on claims that the carrier engaged in unfair insurance settlement practices.  The Second District cited Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, holding that plaintiff did not have an independent right of action against the third party’s insurer for bad faith settlement practices.  Plaintiff argued that since it was insured by the same carrier, their contractual relationship imposed on the carrier a duty to plaintiff.  But the court said that plaintiff’s relationship to the insurer was coincidental and not relevant in this case, so the insurer had no duty that would support an action for negligence.  Although an action might exist for intentional infliction of emotional distress, such an action requires outrageous conduct, and denial of an insurance claim is not sufficiently outrageous.

In CPF Agency Corp v. R&S Towing Service (2005) 132 Cal.Ap.4th 1014 [34 Cal.Rptr.3d 106], and in CPF Agency Corp. v. Sevel’s 24hour Towing Service (2005) 132 Cal.App.4th 1034 [34 Cal.Rptr.3d 120], the Fourth District held that the federal Aviation Administration Authorization Act does not pre-empt state regulation of fees charged by a tow company for towing an illegally parked vehicle without its owner’s consent.  In both cases, the court cited People ex rel. Renne v. Servantes (2001) 86 Cal.App.4th 1081, and Tillison v. City of San Diego (9th Cir. 2005) 406 F.ed 1126.

In Eaton Hydraulics Inc. v. Continental Cas. Co. (2005) 132 Cal.App.4th 966 [34 Cal.Rptr.3d 91], the Second District revered a dismissal entered by the trial court following its sustaining a demurrer to plaintiff’s action against an excess insurer for failure to defend.  The court said that the statute of limitations on such a claim does not begin to run until the refusal occurs, and since the complaint did not specify, it was impossible to determine whether the statute had run.  It added that the statue would be tolled until the underlying lawsuit against the insured is terminated by final judgment.

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