In Mid-Century Insurance Co. v. Superior Court (2006) 138 Cal.App.4th 769 [41 Cal.Rptr.3d 833] the Second District held that following the sustaining of a demurrer on statute of limitations grounds an insured’s voluntary dismissal of its prior claim against an insurer for damage resulting from the Northridge Earthquake was not a litigation to finality of the prior claim and does not prevent plaintiff from suing under the amended statute of limitations set forth in Code of Civil Procedure section 340.9.

In Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755 [43 Cal.Rptr.3d 215], plaintiff was riding on the back of a two-passenger personal watercraft manufactured by defendant when she was ejected rearward into the high-pressure stream created by the jet nozzle, sustaining catastrophic injuries.  At trial, her expert testified that passengers are frequently ejected rearward when such a craft hits a wave and that the likelihood of injuries like those sustained by plaintiff are increased because of the location of the nozzle.  The expert testified that about half of similar watercrafts on the market are equipped with a safety strap that could have been installed for less than 50 cents, but had not been installed on the craft plaintiff was riding.  In affirming judgment for plaintiff, the First District held that the absence of a safety strap or a similar protective device increased the inherent risk of the activity, so the imposition of liability was not prevented by the doctrine of primary assumption of the risk.  The court acknowledged that the doctrine can be applied in a products liability case, but found the extraordinary circumstances required for its application were not present.  The court also held that in apportioning fault under Proposition 51 (Civ. Code §1431.2), the trial court was correct in not instructing the jury to consider the conduct of the operator of the watercraft, because the action against her had been dismissed on the ground of primary assumption of the risk.

In Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141 [42 Cal.Rptr.3d 519], the First District held that the mother of a teenage girl who had invited her friends over for a sleepover had no duty to take even non-burdensome steps to protect her daughter’s guests from sexual assault, unless she had actual knowledge that would have made the assault foreseeable.  In this case, one of her daughter’s guests left the sleepover without the mother’s knowledge, and was raped by a group of boys with whom she had been drinking.

In Jonkey v. Carignan Const. Co. (2006) 139 Cal.App.4th 20 [42 Cal.Rptr.3d 399] the Second District concluded that the jury did not render an inconsistent verdict by finding that defendants were negligent when they dropped a plank that struck plaintiff, but that the negligence was not a cause of the injury plaintiff sustained when struck by the plank.

In Mukhar v. Latin American Security Service (2006) 139 Cal.App.4th 284 [42 Cal.Rptr.3d 563], a convenience store clerk was assaulted by a shoplifter, and sued the security company that had been hired by his employer to provide armed, uninformed security guards.  The guard who was supposed to be on duty at the time testified that he knew shoplifting was a problem at the store, but he was away from his post when the assault occurred.  The trial court granted summary judgment for the defendant, finding that plaintiff could not establish a causal connection between the guard’s absence and the injury.  The Second District reversed, finding that there was a question of fact about whether the presence of an armed, uninformed security guard, equipped with a baton and handcuffs, would have prevented the assault.

In Kim v. Yi (2006) 139 Cal.App.4th 543 [42 Cal.Rptr.3d 841], the Second District held that distribution of the proceeds of a lump sum settlement in a wrongful death action brought by the heirs of three different decedents who were killed in a common automobile accident should be determined by the court without a jury trial.

In Metcalf v. County of San Joaquin (2006) 139 Cal.App.4th 969 [43 Cal.Rptr.3d 522], plaintiff sued was injured at an intersection and sued the County, claiming the placement of a stop sign created a dangerous condition on public property.  At trial, the jury found that the condition was created by public employees 20 years earlier, but that their conduct was not negligent, and the county did not have notice in time to remedy the danger.  In affirming judgment for defendant, the Third District held that establishing the condition was dangerous did not establish that its creation resulted from negligence.  It said that the jury’s conclusion regarding notice was not inconsistent, since it could be based on the finding that the condition became dangerous some time after its creation.  The court approved application of design immunity under Government Code section 835.  the court acknowledged that the jury instruction and special verdict form (CACI VF-1101) could lead to an inconsistent verdict since it requires a jury to determine whether conduct was negligent and if so to determine whether it was reasonable, but said it did not have that effect in this case because after determining that the conduct was not negligent the jury made no determination about whether it was reasonable.

In Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922 [43 Cal.Rptr.3d 468], a husband and wife sued their insurer for bad faith and proved that the insurer engaged in a five year course of reprehensible conduct designed to intimidate them into abandoning their claim against for its unjustified failure to defend. The jury awarded approximately $638,000 in compensatory damages, including emotional distress, and approximately $2 million in punitive damages, a ratio of 3.2 to 1.  On appeal, the Third District held that the punitive damages award was not excessive.  It also found that although the action the insurer had failed to defend was brought only against the insured husband, the insured wife had standing to sue the insurer because under California’s community-property system she would have been liable for any judgment rendered in the action.  The court also found that the jury was properly permitted to consider defendant’s net worth in determining the amount of punitive damages to avoid awarding an amount that would be little more than a slap on the wrist.  Although one of the guideposts established by BMW of North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589] and State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408 [123 S.Ct. 1513] requires comparison of the punitive damages award to civil penalties authorized in similar cases, the court said that was not a matter for the jury, but for the court to consider in reviewing the jury’s verdict, adding that since the defendant committed uncounted prohibited acts during a five-year period, such a comparison would not have been of practical value in any event.  It also said that the “genuine dispute doctrine,” which permits an insurer to delay paying first party policy benefits in the face of a legitimate dispute regarding the insured’s entitlement to them, does not ordinarily apply in failure-to-defend cases, and would not apply in this case, since there was no legitimate dispute about the insurer’s obligation to defend.

In Weinstein v. California Dept. of Transp. (2006) 139 Cal.App.4th 52 [42 Cal.Rptr.3d 417], the Sixth District held that plaintiff’s evidence of possible reasons for installing a median barrier at a particular highway location did not establish that the design was unreasonable without a barrier or prevent application of design immunity under Government Code section 835.  The court added that statistics showing increased traffic and a corresponding increase in accidents do not establish a change in conditions resulting in loss of design immunity.  It also said it would be illogical to impose liability for failing to warn of dangers of a design that had been found reasonable.

In Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659 [43 Cal.Rptr.3d 148], Paulus sued Lynch for malicious prosecution after prevailing in an action brought against him by Lynch that sought to stop Paulus from opening a competing Ford dealership.  The Lynch action had been brought under the Unfair Competition Law (Bus. & Prof. Code §§ 17200 et seq.) based on allegations that laws would be violated by permitting Paulus to open the dealership.  The Superior Court granted Lynch’s anti-SLAPP motion under Code of Civil Procedure section 425.16 and dismissed Paulus’s claim.  On appeal, the Sixth District affirmed, first finding that the SLAPP statute applied.  It went on to agree with the trial court that Paulus would be unable to establish that the Lynch action had been brought without probable cause, since there was some justification for the belief that opening the new dealershiop would involve violation of law, even though the court in the underlying case decided it would not.  The court said that regardless of the outcome, the existence of that potential justification made the Lynch action objectively tenable.  The fact that it was untenable against other defendants because of their immunity was not relevant to its tenability against Paulus.

In Camacho v. Automobile Club (2006) 139 Cal.App.4th 63 [42 Cal.Rptr.3d 488], plaintiff was the operator of an insured vehicle involved in an accident that injured another person.  The injured person’s Uninsured Motorist insurer paid under its policy and then sent plaintiff a letter demanding reimbursement.  Plaintiff sued under the Unfair Competition Law (Bus. & Prof. Code §§ 17200. et seq.), claiming that the insurer engaged in an unfair practice by making it seem that the debt was a liquidated one and by threatening to report non-payment to credit bureaus.  In affirming judgment for defendants entered on the pleadings in Los Angeles Superior Court, the Second District cited Cel-Tech v. LA Cellular (1999) 20 Cal.4th 845 [128 Cal.Rptr.2d 389], and said that in a consumer action under the Unfair Competition Law, unfairness should be determined by balancing a substantial injury the consumer could not reasonably have avoided against countervailing benefits to consumers in general or to competition.  Since plaintiff was liable for damages resulting from the accident, he was not substantially injured by the insurer’s letter, and the benefit to the public outweighs any injury the uninsured motorist might claim to have sustained, which in any event could have avoided by complying with the compulsory insurance law.

In V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499 [43 Cal.Rptr.3d 103], the Second District held that an action for childhood sexual abuse accrues when the last incident of abuse occurred, or when plaintiff should have discovered its occurrence.  The court said the time for presenting notice of claim to a potential public entity defendant begins running on that date, regardless that the statue of limitations on such torts extends plaintiff’s time to sue for a much longer period.