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Kelley v. The Conco Companies, et al. (2011) 196 Cal.App.4th 191, First District Court of Appeal, Division Five, Case No. A126865, filed June 6, 2011.  The First District reversed a summary judgment granted to employer Conco, one of California's largest concrete construction companies, on the grounds that my client Patrick Kelley, an apprentice ironworker, had shown triable issues of material facts that he was retaliated against by Conco for complaining to Conco supervisors about blistering, obscene, sexually-laden derogatory comments made towards him that violated Conco's own guidelines, once those guidelines were established after Kelley filed suit in this matter.

The retaliation included threats of bodily harm, calling him a "bitch", "faggot," "snitch," that failed to stop even after he complained to the Conco dispatcher about the treatment.  In addition, Conco supervisory personel overheard some of the comments and did nothing about them.  Kelley showed triable issues of material facts that Conco supervisory personnel knew of the retaliation but did not stop it.

Vanderkous, et al. v. Conley (2010) 188 Cal.App.4th 111. Conley and Vanderkous were in a four year relationship and lived together in a house on an 8 acre parcel of land in Martinez owned by Vanderkous. For several months my client paid the mortgage on the property. The parties split up. In resolving their financial affairs Vanderkous sold the house they lived on to Conley. As part of the deal Vanderkous was to obtain a lot line adjustment for an additional .7 adjacent acres that comprised both a setback area and contained a two-story structure with a deck that connected to the main house. On the ground floor of the structure was a multi-car garage. On the top floor was living space.

Vanderkous obtained city approval of the lot line adjustment. Conley provided him with a signed authorization for the lot line adjustment twice before the City's approval expired, but Vanderkous never submitted the authorization to the City before the City's deadline. As per their settlement Conley also provided Vanderkous with easements for access and egress, and for utilities. Vanderkous recorded these easements. A fire then destroyed Conley's property. Vanderkous applied again for the lot line adjustment. This time the City required Conley's lender to approve the adjustment. The lender refused, even though the adjustment would increase, not decrease the size of the property. Without the lot line adjustment, Conley could not rebuild her residence and it went into foreclosure.

Vanderkous then applied for a subdivision, using the garage area as 80-90% of the buildable portion of one of the lots. The City approved his application. However, the title company and recorder would not record the subdivision map because the utility and access easements he received from Conley contained property descriptions that included the garage and setback areas as part of Conley's property. Vanderkous then sued Conley for quiet title and declaratory relief to the garage and setback areas. Conley answered with a prayer for relief that included the request that the court "grant such other and further relief it deems appropriate" but did not file a cross-complaint.

After three days of a court trial and submission of closing briefs, the trial court declared the matter submitted. The trial court then issued a statement of decision that quieted title to the garage and setback areas in Vanderkous' name but found that Conley had equitable title over the garage and setback areas and ordered Vanderkous to compensate Conley for her interest in the property in the amount of fair market value, assuming that the disputed areas comprised a buildable lot. The statement of decision gave the parties the opportunity to agree to a value but held that if the parties could not do so, it would decide from appraisals submitted by the parties.

Vanderkous requested an evidentiary hearing solely on the basis of the valuation issue and sought a further continuance of the hearing. The day before the evidentiary hearing the parties tried to mediate the value of the property but could not do so. Vanderkous submitted an appraisal saying that the property was worth $71,000, Conley submitted one saying that the property was worth $410,000. After the mediation Vanderkous filed a request for dismissal with prejudice of the action with the clerk's office.

At the evidentiary hearing the next day Conley, her attorney, and appraiser were present. Nobody appeared for Vanderkous. The trial court found that Vanderkous' dismissal was a bad faith maneuver to avoid compensating Conley per the statement of decision. The trial court set aside the dismissal as void and allowed testimony by Conley's appraiser. The trial court then entered judgment in Conley?s favor for $410,000.

Vanderkous then moved to set aside the judgment under CCP 473(b), based on the mistaken assumption that counsel could file a request for dismissal at that point. The trial court granted the motion but conditioned setting aside the judgment on Vanderkous paying Conley's attorney?s fees for the initially-scheduled evidentiary hearing on valuation and for the costs of responding to the motion to set aside. Conley's trial counsel then filed a declaration showing those fees totaling over $16,000.

At the subsequent hearing on valuing the disputed property, the trial court found that the property was worth $410,000, but also deducted just over $210,000 from that amount to cover Vanderkous' costs in bringing utilities to the property and for other costs incurred in maintaining the property. The trial court also added the over $16,000 in attorney's fees to the judgment, quieting title to the disputed property in Vanderkous' name, ordering Conley to sign a quitclaim deed releasing her equitable interest in the property, directed Vanderkous to pay Conley $214,000, and gave Conley an equitable lien on the property.

On appeal Vanderkous argued that he had an absolute right to dismiss the action with prejudice even at that stage. He argued that since an evidentiary hearing was still pending on the value of the property the matter was not finally submitted. He argued that the trial court could not award compensation to Conley for her equitable interest in the disputed property because Conley did not file a cross-complaint seeking affirmative relief. He argued that because the dismissal was valid the imposition of $16,000 in attorney?s fees as a condition of setting aside the judgment was improper. He finally argued that there was no substantial evidence to support the trial court construing the property as a buildable lot.

The First District rejected all of these arguments. The Court held that Vanderkous' right to dismiss with prejudice was not absolute and was subject to the trial court's discretion. The Court also held that the matter had been submitted by the time Vanderkous filed his dismissal and that therefore the dismissal was too late under CCP 581(d). The statement of decision resolved Vanderkous' quiet title and declaratory relief claims and ordered him to compensate Conley for the fair market value of property she was required to quitclaim to him. Nothing in the statement of decision, nor in the order setting forth the evidentiary hearing on the valuation issue, provided for setting aside submission of the case or re-opening the matter. The Court pointed out that whether a court vacated submission of a cause depends on the terms of the court?s order. Since Vanderkous' right to dismiss was not absolute, the trial court had jurisdiction to set aside the dismissal. Ruling otherwise "would allow Vanderkous to avoid complying with the court's decision and would undermine the trial court's authority to provide for the orderly conduct of proceedings before it and compel obedience to its judgment, orders, and processes." (Citing CCP 128(a).)  188 Cal.App.4th at *4.

The Court also upheld the award of attorney's fees awarded to Conley for the costs of defending the 473 motion, since a court may relieve a party from a judgment taken through mistake "upon any terms as may be just." CCP 473(b)(2).

The Court rejected Vanderkous' argument that Conley's failure to file a cross-complaint deprived the trial court of the authority to direct him to compensate Conley for the interest in the property she was required to relinquish by quitclaim. The Court held that when a litigant seeks equitable relief in the form of a quiet title claim, the trial court has jurisdiction to hear and determine all issues necessary to reach complete justice between the parties. Vanderkous' answer, which sought "such other and further relief as the Court may deem just and proper," sufficed to put the matter at issue. The trial court did no more than to apply a fundamental maxim of equity that required Vanderkous to "do equity" in order to receive equity.

Finally the Court rejected Vanderkous' argument that the decision to value the disputed property as a conforming legal lot was unsupported by the evidence. First, during trial the evidence showed that the garage area comprised 80%-90% of the buildable area of one of the lots of the subdivision Vanderkous applied for that was approved by the City. Vanderkous testified that he planned to live in the space above the garage and give the other two lots to his daughters. Second, Conley's appraiser testified that the garage area conformed to the size requirement for a single family lot under local zoning ordinances and fit the pattern of development in the area. The appraiser also took into account the costs of obtaining utility hookups for the garage area. The trial court took those costs into account when it deducted them from the fair market value of the property.

Shapell Industries, et al. v. Governing Board, Milpitas Unified School District
(1991) 1 Cal.App.4th 218:  involved a challenge by Shapell to school facilities fee ordinances enacted by Milpitas' school district as allowed by Government Code 53080, 65995 and the amount of refund due, if any, under Government Code 66020. Shapell won at trial in Santa Clara County Superior Court in 1989 on the grounds that both the residential and commercial/industrial fee ordinances were entirely invalid, based on flaws in the analysis of the district?s fee justification study. The trial court also held that the refund statute entitled them to recover all of the fees paid.

The 6th District Court of Appeal reversed the judgment, upheld 90% of the residential fees and all of the commercial/industrial fees imposed. The Court found flaws in the district?s fee justification study, but also held the study contained sufficient evidence to justify imposing 90% of the residential fees actually imposed. The Court also held, based on the legislative history of Government Code 66020(e), that the developer only recovers the portion of the fee that exceeds the amount the district can properly impose.

Bruner v. Geldermann, Inc. (1991) 229 Cal.App.3d 662:  The First District reversed a trial court judgment in favor Geldermann. Geldermann sued Bruner for real estate commissions in connection with the sale of commercial real estate. After a sixteen-day court trial, the trial judge disclosed that he had entered into an agreement with plaintiff?s counsel regarding a piece of real estate. Bruner tried and failed to disqualify the trial judge for cause at both the trial and appellate court levels. Bruner timely requested a statement of decision and objected to the proposed statement of decision. The trial judge denied the objections and issued the statement of decision and judgment in the same minute order in which he voluntarily disqualified himself under California Code of Civil Procedure 170.4.

The 1st District held that the effect of the disqualification was to invalidate the statement of decision and judgment. The Court also held that none of the exceptions to the disqualification rule applied and that entry of the statement of decision and judgment were not ministerial acts. I wrote the portion of the reply brief that dealt with this issue (the 1st District seemed to adopt this reasoning), and signed the brief (another co-counsel wrote the portion of the brief dealing with the commission dispute). With three (3) other counsel already listed my name did not appear as a counsel of record in the official reports.

Waste Management of the Desert, Inc., et al. v. Palm Springs Recycling Center. (1994) 7 Cal.4th 478.  The California Supreme Court by a 5-2 vote modified and otherwise affirmed the 4th District (Div. Two) opinion reversing a preliminary injunction in favor of the City of Rancho Mirage's exclusive commercial recycling franchise with Waste Management of the Desert. Palm Springs Recycling was a small recycling company picking up the most valuable commercial recyclables from large businesses in Rancho Mirage.

Rancho Mirage and Waste Management had agreed that Waste Management would have an exclusive franchise to pick up commercial recyclables under the Integrated Waste Management Act of 1989 (AB 939). That statute requires local agencies to reduce their waste streams by 50% by the year 2000 or else face fines of up to $10,000.00 per day and allows local agencies to award exclusive franchises as one way of reaching their objective.

The trial court granted a preliminary injunction in favor of Waste Management and Rancho Mirage prohibiting Palm Springs Recycling from collecting those materials. The Fourth District reversed, holding that the exclusive franchise under Public Resources Code 40059(a)(2) applies only where the owner of the materials discards those materials, which then enter the waste stream. Selling or donating those materials did not fall within the definition of solid waste materials since the materials were valuable, according to the Fourth District. The Fourth District also held that local agencies' police powers did not give agencies the authority over valuable materials, relying in part on authority based on an old, discredited line of U.S. Supreme Court cases.

With Harvey Levine (currently Fremont City Attorney), I represented as amicus curiae approximately 65 California cities on behalf of the City of Rancho Mirage and Waste Management before both the 4th District and California Supreme Court. We argued that local agencies had the authority under the police power to enforce the exclusive franchise as written. The California Supreme Court opinion decided the case solely on AB 939. It modified the 4th District?s opinion by holding that donated materials, because the owner of those materials does not receive compensation for them, fell within the definition of "discarded" and therefore were subject to exclusive franchises under the Act. The dissent, written by then-Associate (and current Chief) Justice George and joined by Associate Justice Mosk found that the franchise was enforceable as asserted under both the Act and police power authority, largely adopting our analysis.

Hughey v. City of Hayward, et al. (1994) 24 Cal.App.4th 206: The First District denied a motion to dismiss the appeal for untimeliness. The Court held that the sixty (60) day time limit under California Rule of Court 2(a) only begins to run from the date of service of a document entitled "Notice of Entry" or a file-stamped copy of judgment or appealable order. The one hundred eighty (180) day limit under Rule of Court 2(b) runs from the date of entry of the minute order unless the minute order designated prevailing party to prepare the order after hearing, irrespective of Rule of Court 391. The opinion prompted the adoption of the last paragraph of Rule of Court 2(b), effective January 1, 1995.

Brossoit v. Brossoit (1995) 31 Cal.App.4th 361. The 1st District Court of Appeal reversed a trial court order declining California's jurisdiction under the Uniform Child Custody Jurisdiction Act (California Family Code 3400-3425) as an abuse of discretion.  The case continues as precedent under the successor to the UCCJA, the Uniform Child Custody Jurisdiction Enforcement Act.

I represented the mother on appeal. She sought to modify child custody to gain primary physical custody over her two young sons from her ex-husband, who was in and out of jail, and unemployed.

A few days after my client sought to modify custody, the children's paternal grandmother, who had been looking after the children for the father (but who did not have a court order giving her custody), moved with the children to Tennessee. After my client finally located her ex-husband to serve him with her Order to Show Cause to Modify Custody, the grandmother filed a guardianship petition in Tennessee that did not reveal the existence of the pending California case. The trial court in California held a jurisdiction hearing. While that hearing was pending, Tennessee granted the guardianship petition. The trial court in California, Family Law Commissioner Josanna Berkow presiding, declined jurisdiction even though California still had jurisdiction over the matter and Tennessee did not.

The 1st District held that California could only decline jurisdiction if another state already had jurisdiction at the time and Tennessee did not. California's continuing jurisdiction was exclusive and all of the contacts with Tennessee took place after the grandmother's unilateral removal of the children to Tennessee. To find that Tennessee had jurisdiction in this case would have encouraged the unilateral moving of children from one state to another, the type of conduct the UCCJA sought to deter. The trial court also abused its discretion by failing to assess all the factors listed in Family Code 3407(c).

W.W.S.M. Investors, et al. v. Greve, Clifford, et al. (1996) 43 Cal.App.4th 517: The Third District, in the published portion of its opinion, remanded the matter for reconsideration by the trial court in light of its Opinion. A partnership took control over another business in which it possessed a security interest after that business breached its contract with the partnership. The business owed tax liens to the IRS. Those liens were junior to the partnership?s. However, the IRS, despite correspondence from the partnership, levied on its liens.

The partnership hired a tax specialist at defendant law firm to look into the matter. The specialist was able to persuade the agency that the partnership's security interest was senior to the IRS? lien. However, the IRS still required the partnership to submit an application for refund of the levied money and the specialist failed to provide adequate advice to the partnership as to how to apply for the return of the levied funds. As a result, the nine-month statute of limitations for filing suit to recover the funds was not tolled and the partnership?s complaint for return of the improperly levied funds was dismissed as untimely. The partnership appealed to the 9th Circuit and in the meantime, pursued its malpractice action.

The trial court found for the partnership on the malpractice issue and awarded damages, but imposed a lien on plaintiff?s recovery in the underlying action and failed to award plaintiff a significant amount of damages to the partnership, comprised primarily of attorney fees incurred in the underlying claim in trying to remedy the malpractice.

The appellate court held that the amount of a legal malpractice defendant?s lien on plaintiff's future recovery in the underlying cases must be determined after deducting the malpractice plaintiff's costs and fees in the underlying action. The court held that to do otherwise would be inequitable and that an assignment of the partnership?s claim against the IRS to the defendant firm might be an appropriate way of addressing the lien issue, since the partnership won its 9th Circuit appeal. In the unpublished portion of the opinion, the appellate court largely affirmed the judgment on the damage issues and affirmed the defendant firm's cross-appeal on the liability issues.

Williams v. UNUM Life Insurance Co. of America, 113 F.3d 1108 (9th Cir. 1997), partially overruled in Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program (9th Cir. 2000), 222 F.3d 643.  The 9th Circuit reversed the district court's order granting summary judgment in favor of UNUM on statute of limitations grounds. Williams worked as a medical supplies salesperson for Storz Surgical Instruments. As part of his compensation package, Williams was a beneficiary of a long-term disability insurance policy issued and administered by UNUM.

He injured his back in a car accident an needed spinal fusion surgery. He was disabled and submitted a claim to UNUM which, a little over six months and numerous ambiguous letters requesting further information later, UNUM approved. UNUM sent Williams a check for the first disability period and told him to let them know if for any reason he could not return to work beyond a specific date. Before UNUM sent this letter Williams had already informed UNUM orally and in writing that during a trial return to work period he had re-injured his back and was again disabled. UNUM's own claims file verified this communication. This was a recurrent injury under the terms of UNUM's policy and Williams' doctors sent correspondence to UNUM verifying this later period of disability. Williams believed that his and his doctors' prior oral and written communication already addressed this request and did not respond. Almost two months later, UNUM closed his file without notifying him.

Two months after UNUM closed his file, Williams submitted a follow-up claim for disability benefits through his employer. Soon after, he began receiving disability benefits from another company and thought the matter was resolved. He also needed a second spinal fusion, since the first one failed. He subsequently found out from his employer that the benefits he was receiving were short-term, not long-term benefits and that he needed to contact UNUM about his long-term disability needs. Williams did so, and UNUM denied his claim as untimely under the terms of the policy and also denied his administrative appeal.

The district court granted summary judgment on statute of limitations grounds. The district court found that since over three years passed since either proof of loss was due under the terms of the policy or because Williams knew or reasonably should have known that UNUM denied his claim. On appeal the 9th Circuit reversed and remanded, holding that questions of fact whether Williams timely submitted a proof of claim and that whether Williams knew or reasonably should have known that UNUM denied his claim precluded summary judgment. The 9th Circuit also remanded the case to the district court for determination of whether UNUM's proof of loss provision violated California law.  Following remand the parties settled the matter.