Archive - 2017

1
California’s Court Of Appeal Confirms That Comparative Fault Applies To Professional Malpractice Claims And That Pre-Judgment Interest Is Not Recoverable Where Issues Exist On Fault And Apportionment
2
California Court Of Appeal Holds Plaintiff’s Rejection Of Settlement Requiring Waiver Of Claims Is Reasonable In Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462
3
Ninth Circuit Requires Increased Disclosures Related To The Sale Of “Certified” Pre-Owned Vehicles In Gonzales v. Carmax Auto Superstores, LLC (2016) 840 F.3d 644
4
UPDATE – McMillin Albany LLC v. Superior Court
5
$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation

California’s Court Of Appeal Confirms That Comparative Fault Applies To Professional Malpractice Claims And That Pre-Judgment Interest Is Not Recoverable Where Issues Exist On Fault And Apportionment

By: Ashley H. Verdon
May 25, 2017

In Yale v. Bowne (2017) 9 Cal.App.5th 649, Yale sued her former attorney for negligence in the preparation of an estate plan which, contrary to Yale’s wishes, transmuted all of her separate property to community property, and ultimately forced her to enter into an unfavorable settlement with her ex-husband so that Yale could avoid potentially losing half of everything in her divorce.  In the negligence case, the jury found that Yale’s attorney was professionally negligent and that Yale was comparatively negligent, allocating 90% fault to her attorney and 10% fault to Yale.

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California Court Of Appeal Holds Plaintiff’s Rejection Of Settlement Requiring Waiver Of Claims Is Reasonable In Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462

By: Gregory K. Sabo and Chelsea L. Zwart
May 25, 2017

In Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, the Fourth District California Court of Appeal held that a plaintiff’s rejection of a pre-litigation offer including extraneous non-financial terms is reasonable and therefore does not preclude the plaintiff from recovering attorneys’ fees under California’s Song-Beverly Consumer Warranty Act (California Civil Code §§1790 et seq.) upon prevailing in the action.

Prior to initiating litigation in Goglin, the plaintiff notified BMW of her claims, asserting the dealer violated the Consumer’s Legal Remedies Act (“CLRA”) by selling her a used vehicle with undisclosed prior collision damage and an extensive history of mechanical failure. To resolve the issue, BMW offered to repurchase the vehicle, pay off her loan, and reimburse her for the down payment and loan payments made less an offset for depreciation and reimburse her for reasonable attorneys’ fees. The offer was contingent upon the plaintiff signing a settlement and release agreement including terms for a general release, waiver of California Civil Code §1542, dismissal with prejudice of any lawsuit she may have filed against BMW, and a confidentiality and nondisparagement clause.

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Ninth Circuit Requires Increased Disclosures Related To The Sale Of “Certified” Pre-Owned Vehicles In Gonzales v. Carmax Auto Superstores, LLC (2016) 840 F.3d 644

By: Gregory K. Sabo and Chelsea L. Zwart
May 25, 2017

In Gonzales v. CarMax Auto Superstores, LLC (2016) 840 F.3d 644, the Ninth Circuit Court of Appeals held that to comply with California’s Car Buyer’s Bill of Rights, Unfair Competition Law (“UCL”), and Consumer’s Legal Remedies Act (“CLRA”), a dealer selling a “certified” pre-owed vehicle must indicate the pass/fail result of each component inspected, not simply provide the buyer with a completed inspection form listing which parts were inspected.

In Gonzales, the plaintiff brought suit claiming violations of the UCL and CLRA after purchasing a “certified” used vehicle from CarMax, and alleging that the deal failed to comply with California Vehicle Code §11713.18(a)(6), which requires a dealer to provide consumers with a “completed inspection report” prior to the sale of a “certified” used vehicle.

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UPDATE – McMillin Albany LLC v. Superior Court

By: Richard H Glucksman, Glenn T. Barger, and David A. Napper
May 25, 2017

The matter has been fully briefed since last year and the construction industry anxiously awaits the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132.  Numerous amicus briefs have also been filed including one by the Association of Southern California Defense Counsel, with the immediate past president of the organization, CGDRB’s Glenn T. Barger, Esq., listed as the attorney of record.  The Supreme Court will consider the issue of whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003, thereby resolving the split of authority presented by the Fifth Appellate District’s holding in McMillin Albany, which outright rejected the Fourth Appellate District’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, on this particular issue.  Oral argument is still pending and CGDRB will continue to closely monitor the progress of this case.  Stay tuned.

$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation

By: Jon A. Turigliatto and Chelsea L. Zwart
May 25, 2017

The Fourth District California Court of Appeal published its decision, Acqua Vista Homeowners Assoc. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, holding that claims against a material supplier under SB800 (Civil Code §895, et. seq.) require proof that the SB800 violation was caused by the supplier’s negligence or breach of contract.

In this case, Acqua Vista Homeowners Association (“the HOA”) sued MWI, a supplier of Chinese pipe used in the construction of the Acqua Vista condominium development.  The HOA’s complaint asserted a single cause of action for violation of SB800 standards, and alleged that defective cast iron pipe was used throughout the building.  At trial, the HOA presented evidence that the pipes supplied by MWI contained manufacturing defects, that they leaked, and that the leaks had caused damage to various parts of the condominium development.  The jury returned a special verdict against MWI, and the trial court entered a judgment against MWI in the amount of $23,955,796.28, reflecting the jury’s finding that MWI was 92% responsible for the HOA’s damages.

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