Hon. Thomas L. Willhite, Jr. (Ret.)

• Under the arbitration clause in a movie production contract, an actor commenced arbitration against a production company over payment. During the arbitration the actor sought to add the principal of the production company (a non-signatory to the contract) in his individual capacity as an alter ego of the company. Primary issue was whether the decision to bind a non-signatory to an arbitration agreement and compel the non-signatory to arbitrate is a matter solely within the authority of the trial court, not the arbitrator.
• Trial court ordered arbitration, set an arbitration completion date, and (after extending the date due to the length of the arbitration) later removed the assigned arbitrator because the arbitrator was reluctant to promise completion by the court's ultimate deadline. Issues included whether the trial court had the authority to set an arbitration completion date, and whether the arbitrator’s failure to commit to that date constituted a failure to act under Code Civ. Proc., § 1281.6, justifying his removal.
• In denying a petition to vacate an arbitration award, the trial court deferred to an arbitrator's finding that an unlicensed contractor was not required by Bus. & Prof. Code, § 7031, subd. (b) to disgorge sums paid by the developer. Primary issue involved whether § 7031 fell within the "public policy" exception to the general prohibition of judicial review of arbitration awards.
• The trial court vacated an arbitration award under Code Civ. Proc., § 1286.2, subd. (a)(6)(A), finding that the arbitrator failed to comply with his disclosure obligation under California law. Issues involved the interpretation of California disclosure rules and whether such rules were preempted by the Federal Arbitration Act, which permits the vacating of an arbitration award only on a showing of “evident partiality” by the arbitrator (9 USC § 10(a)(2).

• Survivors whose parents died from complications associated with mesothelioma brought a wrongful death action against, among others, a manufacturer of asbestos-containing automobile brakes and the operator of a chain of automobile parts stores. They alleged that their father had been exposed to asbestos when he performed regular brake repairs on the family car, using the defendant manufacturer’s brakes, which he purchased from the defendant store chain. Issues included the propriety of the trial court’s jury instructions on the theories of strict and negligent product liability, premised on failure to warn and design defect/consumer expectation tests.
• Survivors of a worker who died of mesothelioma sued the worker’s employer, a pipe manufacturer, for wrongful death, alleging that in addition to his workplace exposure to asbestos through pipes made by the employer, the worker was also permitted to take waste or scrap pipe home, where he was exposed to asbestos in using the pipe for home projects. The primary issue was whether the worker’s exposure to asbestos at home created a separate injury from the exposure at work, such that under Lab. Code, § 3602, workers compensation was not the survivors' exclusive remedy against the employer.
• Plaintiff who developed mesothelioma sued numerous defendants, seeking compensatory and punitive damages for his exposure to asbestos during his 20 years of service in the United States Navy and his 16-year employment by a sugar manufacturer. Primary issue concerned the jury’s allocation of fault among defendants.
• Husband and wife sued a general contractor, alleging the contractor exposed husband to asbestos when he worked at a power plant. Primary issue was whether the evidence demonstrated such exposure.

• During the planning and environmental review process for a county’s proposed subway extension project, a school district and a city objected to the placement of a subway tunnel under a high school, contending that the county had failed to comply with CEQA (Pub. Resources Code, §§ 21000 et seq.). Issues involved whether (1) the final environmental impact statement relied on significant new information that was not in the draft statement, requiring recirculation of a new draft for comment; (2) the county violated CEQA by failing to analyze localized air pollution and public health impacts from construction of the project; and (3) the public hearing on the final impact statement violated the statutory requirements of the Public Utilities Code.
• Owner of a residential mobile home park located in the coastal zone applied to the city to convert the park to residential ownership under Govt. Code, § 66427.5, which facilitates such conversions by limiting a local agency’s authority to deny an application, unless the application fails to comply with the specific requirements of the statute. The city rejected the application for failure to comply with two other statutory schemes: (1) Govt. Code, § 65590, part of the Mello Act, which creates minimum requirements for low-and-moderate income housing within the coastal zone, and (2) the California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.) which generally governs developments in the coastal zone. Primary issues involved whether the conflicting terms of the three statutory schemes could be reconciled and what permits were needed to convert a mobile home park located in the coastal zone.
• The California Coastal Commission approved a developer’s proposed project on an 84-acre parcel of coastal property located in a biologically diverse and environmentally sensitive area. Nearby residents challenged the Commission’s approval of the project. Issues included whether the local agency’s determination that the project was exempt from CEQA was erroneous, whether the Commission erred by failing to review the local agency’s decision, and whether the Commission committed various procedural violations of the California Coastal Act.

• Homeowners filed a class action against the manufacturer of an allegedly defective plumbing fixture used in the construction of class members' homes. They asserted a claim under the Right to Repair Act, Civ. Code, §§ 895-945.5, a complicated and comprehensive statutory scheme governing residential construction defect litigation. Primary issues involved whether the Act precluded class actions for claims under the Act, and whether, if so, there was an exception for claims involving the incorporation of a defective manufactured product (such as the plumbing fixture in the present case) in the construction of the homes.
• Plaintiff brought a class action against a motorcycle manufacturer for allegedly violating Veh. Code, §§ 11712.5, 24014, which requires a hanger tag on each motorcycle informing prospective purchasers of the manufacturer's suggested retail price and the seller's additional charges. Issues involved whether plaintiff’s claims were typical of the class, common issues predominated, and the class was ascertainable.
• Employees of the operator of a chain of cell phone stores brought a class action wage and hour claim, alleging the employer (1) made unlawful deductions from its retail employees' paychecks in violation of Lab. Code, §§ 221, 400 through 410, and 2802, (2) failed to pay overtime in violation of Lab. Code, § 194, (3) failed to provide required meal periods and rest periods in violation of Lab. Code, §§ 512 and 226.7, (4) failed to pay the deducted amounts and the withheld overtime payments upon the employee's termination in violation of Lab. Code, § 201, and (5) improperly classified its salaried retail employees as exempt from the provisions of the Labor Code governing overtime and meal and rest periods. Primary issues involved whether plaintiffs’ claims were typical of the class, common issues predominated, and the class was ascertainable.

• Plaintiff physical therapy providers filed a class action against defendant health care insurer, alleging that the insurer violated California's antitrust and unfair competition laws (Bus. & Prof. Code, §§ 16720, 17200 et seq.) by engaging in an improper market allocation (through its preferred provider geographic restrictions) and a boycott of plaintiffs’ businesses (through the plan’s exclusive contract with a single physical therapy provider). Primary issue concerned whether the insurer’s conduct in forming efficient-sized contracting units was statutorily exempt from antitrust laws under certain statutes (Bus. & Prof. Code, § 16770, subd. (g); Ins. Code, § 10133.6; Health & Saf. Code, § 1342.6), although its conduct in negotiating alternative rates of payment was subject to antitrust enforcement.
• Plaintiff, a long-time franchisee of a fast-food company, was removed as a franchisee. In her suit against the company for fraud, a jury awarded her $ 6.5 million in compensatory damages and $ 10 million in punitive damages. Issues included whether (1) plaintiff proved conspiracy to defraud; (2) her claim was predicated on a breach of contract theory and therefore could not be prosecuted as a tort; (3) the awards for emotional distress damages and punitive damages were invalid, because her claims became part of her bankruptcy estate and she prosecuted the case as an assignee of a corporation which purchased the claims from the bankruptcy trustee; and (4) she was entitled to damages arising from the sale of franchises that purportedly were owned by a corporation of which she was the principal or sole shareholder.
• A corporation filed a tax refund suit against the Franchise Tax Board. The corporation had paid all assessments which were due at the time of the suit but had not paid more than $50 million in other proposed (but not final) disputed tax assessments for the tax years at issue. Primary issue involved whether Cal. Const., art. XIII, § 32 (taxpayer must pay a disputed tax before bringing an action in court to adjudicate the validity of that tax) and Pope Estate Co. v. Johnson (1941) 43 Cal. App. 2d 170 (all tax liability issues for a tax year be must generally be litigated in a single action), required the corporation to pay the proposed assessments to maintain its suit.
• The California Department of Health Services (DHS) entered a contract with an advertising agency to conduct its state-wide tobacco education media campaign. The agency hired plaintiff media buyer to purchase radio and television time for the tobacco campaign but failed to pay plaintiff for its services. Primary issue involved whether plaintiff could sue DHS for breach of contract on a third-party beneficiary theory.
• Plaintiff, a clothing design and wholesale distribution company, sued a vendor company for breach of contract, and also named as defendants various individuals associated with the vendor company. Plaintiff was awarded more than $2 million as liquidated damages. Primary issue was whether the liquidated damages clause in the vendor contract was unreasonable and unenforceable, and whether the individual defendants could be held jointly liable with the vendor company, because they acted as a single enterprise with, or were alter egos of, the vendor company.

• A corporation's founder entered into written agreements to give shares to the investor-plaintiffs in return for their investments but died shortly thereafter. His successor in interest then named himself director, issued shares to certain investors (not plaintiffs), and installed a board of directors. Plaintiffs sued to invalidate the election of directors under Corp. Code, § 709, subd. (a). Primary issue was whether, although they did not meet the statutory definition of "shareholder" in Corp. Code, § 185, plaintiffs nonetheless had standing to sue under Corp. Code, § 709, subd. (a).
• The developer of a hotel/retail project entered a joint defense agreement with the architect in which the architect agreed to assist in litigation against the developer brought by the general contractor and several subcontractors. The agreement required the developer to execute a release of any claims it might have against the architect at “the final conclusion” of the litigation. Several types of “final conclusion” were listed, but “settlement” was not. After the litigation was settled and dismissed, the owner developer sued the architect for breach of contract, professional negligence, and equitable indemnity. Issues involved (1) whether the release provision required the developer to release the architect in the event the litigation settled; (2) even if the release provision applied in the event of a settlement, was the developer required to release the architect only if there was an arbitration or adjudication to determine the architects’ liability to the developer, and only after the architect paid the amount owed; and (3) whether the developer timely withdrew from the agreement, which terminated any duty to give the release.
• Plaintiff company, which provided internet fax services, sued for a refund of a local communications tax. Primary issue was whether the company was immune from taxes under the Internet Tax Freedom Act, as amended in 2007 (47 U.S.C.A § 151).
• The operator of a sports and entertainment venue sued a company for breach of contract for failing to pay for luxury suites. Primary issue was whether the individual who signed the contract for the luxury suites was an ostensible agent of the purchasing company.
• Plaintiff-purchasers of an unregistered security sued the seller under the Securities Act of 1933 (15 U.S.C. §§ 77a et seq.), but the action was filed after expiration of the one-year statute of limitations. Primary issue was whether the principle of equitable tolling was inapplicable to an action under the Securities Act, given that whether a security is registered is a matter of public record, and Congress included a discovery rule for certain classes of claims but omitted that rule for plaintiffs’ class of claims.
• In a dispute among the two principals of a business over allegations of stolen funds, the principals exchanged several letters and a draft settlement agreement that was never formally signed. Primary issue involved whether the exchange of letters constituted an offer and acceptance of the draft settlement agreement.
• In resolution of a dispute about a contract to provided dialysis service to California prisons, plaintiff (a business providing administrative and managerial services related to biomedical treatment) agreed to release defendant (a dialysis clinic) from all claims against the clinic in connection with a bid they had made to provide dialysis services to the prison system and in connection with the parties’ contract. Later, plaintiff sued defendant for breach of contract, interference with contract, and interference with prospective economic relationship. Primary issues involved whether plaintiff had effectively rescinded the agreement based on fraud and whether the agreement was unconsummated because defendant never signed it.
• Plaintiff contractor sued homeowners for failure to pay for his work, and homeowners countersued for reimbursement of funds already paid. Primary issue was whether the work performed fell outside the scope of plaintiff’s tile setter’s license, such that plaintiff could not recover unpaid sums and homeowners were entitled to reimbursement of funds already paid under Business and Professions Code, § 7031(b)

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• Plaintiff filed a class action lawsuit against a motorcycle manufacturer asserting claims under the Unfair Competition Law (UCL) and the Consumer Legal Remedies Act (CLRA), based upon the manufacturer’s alleged violations of Veh. Code, §§11712.5 and 24014 by failing to hang on each motorcycle a label indicating the manufacturer's suggested retail price and additional charges. Issues in the case involved the propriety of class certification, whether the UCL required a showing of causation and injury as to unnamed class members, and whether Civ. Code, § 1781, subd. (a), allowed such a showing to be made by establishing that a reasonable person would not knowingly make an illegal purchase.
• In a class action lawsuit against a car manufacturer, plaintiffs alleged that the manufacturer purposefully designed, calibrated, and altered the odometers on its vehicles to over register the actual miles driven by at least 2 percent. Plaintiffs alleged various causes of action, including unlawful business practices under the UCL, unfair or deceptive trade practices under the CLRA, and false advertising under the FAL. The primary issue was whether the “safe harbor” provision of Bus. & Prof. Code, §12500, subd. (c), which deems “correct” any odometer that is accurate within plus or minus 4 percent, absolved the manufacturer of liability.
• Car purchaser sued car dealership under the Song-Beverly Consumer Warranty Act, Civ. Code, §§ 1790, et seq., alleging that the company had been unable to repair the car’s defect to conform to applicable warranties after a reasonable number of attempts, and by refusing to repurchase the vehicle. Issues included the existence and nature of the defect, and whether the dealer’s offers to repurchase the vehicle satisfied its statutory duty.

• After an online news site accused the executive producer of a documentary on the Mayan civilization of filming illegally and fleeing Mexico with the recorded footage, the executive producer sued the site for defamation and false light invasion of privacy. Issues included (1) whether the statements in the article were false; (2) whether the executive producer was a public figure and, if so, whether she produced sufficient evidence to establish actual malice; (3) whether the article was privileged under Civ. Code, § 47, subd. (d); and (4) whether Civ. Code, § 48a (requiring a demand for retraction) applied and precluded the executive producer from establishing damages.
• In a complicated dispute between, on the one hand, three members of a homeowners’ association’s board of directors, and on the other hand, a homeowner member of the association and his tenant, the board members filed a 442-page complaint against the owner and tenant alleging, among other claims, two claims for libel per se and two for slander per se. Issues included whether the statements on which the claims were based constituted nonactionable opinions, and whether (as limited purpose public figures) the board members could prove that the owner and tenant acted with actual malice.
• A public elementary school teacher sued her school district’s superintendent and the school district for defamation, based on the superintendent’s comments characterizing the teacher as having acted unprofessionally and comparing her attitude to that of the villain in a popular animated film. Issues included whether the superintendent’s comments were subject to the absolute privilege accorded statements made by a government official in proper discharge of his official duties. under Civ. Code, § 47, subd. (a).

• Elderly plaintiff, who suffered from dementia, resided at a skilled nursing facility, which created a plan to reduce her risk of falling. Despite the plan, she fell three times while at the facility and fractured her leg. Plaintiff sued the facility and several employees for elder abuse under Welf. & Inst. Code, §§ 15600 et seq., alleging the care plan was inadequate because, for example, it did not require, and the staff did not use, a mobility alarm to alert staff when plaintiff tried to get up from her wheelchair unassisted. Issues included whether the allegations sounded in elder abuse, which requires “neglect” of the elderly patient, or in medical negligence, meaning the performance of medical services below the standard of care.
• Elderly plaintiff and her living trust alleged that defendants engaged in abusive conduct, resulting in her signing escrow instructions authorizing the sale of real property owned by the trust. Although escrow was later canceled and the trust retained title to the property, plaintiff alleged that defendants’ conduct constituted financial elder abuse, because the existence of the escrow instructions significantly impaired the trust’s right to sell the property at fair market value or to use it to secure a loan on favorable terms. Primary issue was whether, although the sale of the property was cancelled, the escrow agreement deprived plaintiff and her trust of a “property right” within the meaning of Welf. & Inst. Code, § 15610.30, subd. (c), thus qualifying as financial elder abuse.

• As part of a redevelopment project, a city redevelopment agency obtained a judgment of condemnation against the property of a local business owner. Issues included whether the city’s Resolution of Necessity for the project contained the jurisdictional requirement of a determination that the public interest and necessity required the project, and whether the business owner was entitled to a recovery for the loss of good will.
• A private business sued a city for inverse condemnation after a public sewer, which had been damaged by tree roots, overflowed, causing severe damage to the business’s premises. Issues included whether the root invasion and subsequent sewage leak resulted from dangers inherent in the construction of a city sewer (thus permitting an inverse condemnation action) as distinguished from dangers arising from the negligent operation of the sewer (which would not constitute inverse condemnation).
• Property owner sued Caltrans' for inverse condemnation based on Caltrans’s announcements and statements that its proposed design for highway expansion included the acquisition of a portion of his commercial property, forcing him to renegotiate his lease with his commercial tenant at a substantially lower rent. Primary issue was whether Caltrans’s pre-condemnation conduct was unreasonable, thus entitling the property owner to proceed with the action under Klopping v. City of Whittier (1972) 8 Cal.3d 39 (property owner may recover in inverse condemnation for losses caused by a condemning authority's unreasonable conduct prior to actual condemnation).
• After discovering that modifications to a private school building had been made beyond those approved in the construction permits, a city building department “yellow tagged” the building, prohibiting any occupancy or use of the building except for personnel involved in making repairs or retrieving property. The school sued the city for inverse condemnation. Issues included whether the school had exhausted its administrative remedies and whether the city’s action constituted a “taking.”

• Under the Education Code, the public school district in which the parents of a disabled student reside is responsible for preparing an “individualized education plan” for the student and for paying the costs of implementing that plan. As part of such a plan for their adopted disabled child, the plaintiff parents arranged for the placement of the child in a residential facility located in another county, and their school district agreed to the placement. However, the district later withdrew its approval upon discovering that plaintiffs received financial assistance for the placement through an adoptive assistance program administered by the department of children and family services (DCFS) in plaintiffs’ county of residence. Primary issue was whether DCFS was a “public agency, other than an educational agency” under Ed. Code, § 56155, and whether DCFS had “placed” the child in the out-of-county facility, such that Ed. Code, § 56156.4, subd. (a), relieved the school district of responsibility for the costs of the child’s education.
• A public school district challenged the ruling of an arbitrator in a labor dispute, contending that the award violated certain provisions of the Education Code and the labor agreement. Primary issue involved whether the ruling compelled the district to violate Ed. Code, §§ 44663 and 44664, which specified procedures for the evaluation of tenured teachers.

• Actress who complained of violent conduct on the set of her television series sued television producer after her contract to appear in the series was not renewed. Issues involved whether the failure to renew the contract was a wrongful discharge in violation of public policy, and, if not, whether the actress could allege under Lab. Code, § 6310, that the nonrenewal was in retaliation for a complaint of an unsafe workplace.
• Aerospace employee sued her employer under the Fair Employment and Housing Act based on age and gender discrimination, and wrongful termination in violation of public policy. The jury awarded the employee more than $1.5 million in compensatory damages and $7 million in punitive damages. Issues included whether the employer’s explanation for the termination (a reduction in workforce and elimination of the position) was a pretext for improper discriminatory motives, and the propriety of the damage awards.
• Plaintiff city bus operator was terminated for excessive absences. Under the collective bargaining agreement between his union and the city, any employee was subject to progressive discipline (including termination) if the employee had a certain number of absences. To avoid discipline, the employee could clear an absence from his or her count by not having any absences for 60 consecutive calendar days. But certain kinds of absences were expressly excluded from the rule allowing clearing of absences. One kind of excluded absence was an absence covered under the California Family Rights Act (Gov. Code, § 12945.2) (CFRA). The fired bus operator sued the city for retaliation based on his use of CFRA leave, failure to prevent retaliation, and interference with CFRA leave. Primary issues involved: (1) whether the city’s failure to count the days an employee is on CFRA leave when calculating the 60-day clearance period violated the CFRA, and (2) whether the city treated absences for jury duty, or military or bereavement leave, differently than it treated CFRA leave for the purpose of absence clearance.
• Employee of chocolate making factory sued her employer alleging breach of the covenant of good faith and fair dealing, age discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA), and wrongful termination in violation of public policy. Issues included whether, although the employee was trained for and able to perform other duties after the phase-out of the machine she used, the reason for her termination (elimination of her position) was a pretext for unlawful discrimination, given that other similarly situated workers younger than she were relocated to other jobs.
• City employee who was terminated after informing her superiors of her suspicions that a police officer had committed perjury sued the city for retaliation in violation of the protections for whistleblowers contained in Lab. Code, § 1102.5. Issues, among others, involved the viability of the City’s proffered nonretaliatory reasons for the termination.

• A heavily contested marital dissolution trial lasted 57 days, resulting in an appeal involving complex issues regarding whether a 1994 premarital agreement, which limited community property rights and spousal support, was invalid as unconscionable at the time of dissolution in 2014, and whether the awards of child support, spousal support, and attorney fees were supported by the evidence.
• A protracted contested dissolution trial presented issues whether the trial court erred in allocating settlement funds received by wife in a separate sexual harassment action, in finding husband breached his fiduciary duty to wife in managing marital assets and investments, in valuing a particular asset at the time of trial rather than at the time of separation, and in awarding wife ten percent interest on funds owed her by husband.
• Plaintiff sperm donor sought a declaration under Fam. Code, § 7611, subd. (d), that he was a presumed parent of a child conceived by defendant mother (with whom plaintiff had previously had a long-term relationship). Primary issue was whether Fam. Code, § 7613, subdivision (b) (sperm donor is not a parent of the child, absent a written agreement to the contrary) categorically precluded a finding of presumed parentage under Fam. Code, § 7611, subd. (d), based on the sperm donor’s post-birth conduct of receiving the child into his home and openly holding out the child as his natural child.
• Actor moved to invalidate spousal support provisions of a marital dissolution judgment and marital settlement agreement on the ground of duress pursuant to Fam. Code, § 2122, subd. (c). Primary issue involved whether ex-wife’s alleged threats to publicly release private intimate recordings (which allegedly would have been embarrassing to the actor and would have damaged his career) constituted duress, leading him to agree to pay spousal support far greater that which he would otherwise have been required to pay based on the parties' one-year marriage.

• A resident of a skilled nursing facility, who elected hospice care through a provider under contract to the facility, experienced a psychotic episode, and the hospice provider directed that she be transferred to an acute care hospital for evaluation and treatment. When her treatment was concluded, the skilled nursing facility refused to readmit her. Primary issue was whether the refusal of readmission constituted an involuntary transfer of the resident under 42 Code of Federal Regulations, part 483.12, thus requiring various findings and documentation.
• A health care service plan rescinded plaintiff’s contract for coverage prior to required surgery, based on alleged misrepresentations about her health she had made in her application to the plan. Plaintiff sued the plan, alleging claims for breach of contract, breach of the duty of good faith and fair dealing, and declaratory relief. Primary issue was whether Health & Saf. Code, §1389.3 precluded the plan from rescinding the contract unless it could demonstrate either that the misrepresentations were willful or that it had made reasonable efforts to ensure the accuracy and completeness of the application before issuing the contract.
• Health care company received permission from the Attorney General of California, who has supervisorial authority over such matters under the Nonprofit Hospital Transfer Statute (Corp. Code, §§ 5914-5925), to purchase a hospital from a nonprofit corporation. The permission required the hospital to continue to provide a minimum level of "charity care" services for six years, and to make up for any deficiency in such services by making monetary contributions to a nonprofit corporation providing medical care. Later, the health care company sought to modify this condition, contending that the enactment of the Patient Protection and Affordable Care Act (ACA), colloquially known as "Obamacare," reduced the number of uninsured persons in the community, making it impossible for the hospital to provide the level of charity care services required by the grant of permission. Primary issue involved whether, as required by applicable law, the company demonstrated that the ACA was a reasonably unforeseeable change in circumstances at the time the sale was permitted, and that it had taken efforts to avoid the need for a modification.

• General contractor, an additional insured under a liability policy issued to a subcontractor, sued the subcontractor’s insurer for declaratory relief after the insurer refused to defend the general contractor against construction defect claims. The subcontractor had financed the policy premium through a lender and assigned its right to cancel the policy to the lender in the event of its failure to pay the premium. Thereafter, without notice to the general contractor, and on instructions from the lender, the insurer cancelled the policy for nonpayment of the premium. Primary issue included whether, for the cancellation of the policy to be valid under Ins. Code, § 673, the insurer was required to give notice to the general contractor as an additional insured.
• An insurer denied coverage under an all-risk homeowners insurance policy for mold contamination that was caused by water damage from a toilet that overflowed. Although the policy covered losses resulting from a sudden and accidental discharge of water from plumbing or household appliances, the insurer denied the claim for the mold damage based on terms in the policy that provided that any loss resulting from mold was always excluded, however caused. Homeowners sued for bad faith. Primary issue was whether the insurer could rely upon the “absolute” mold exclusion to deny coverage for mold damage resulting from the covered discharge of water, given that Ins. Code, § 530 incorporated into California law the efficient proximate cause doctrine.
• Vaccine manufacturer was sued in lawsuits alleging that one of its vaccines caused autism and neurological disorders in children. It tendered its defense to its insurer under an umbrella insurance policy that provided both excess coverage and contingent primary coverage. The insurer disputed coverage. Issues included whether the policy provided contingent primary coverage for occurrences of bodily injury resulting from the manufacturer’s products, whether the lawsuit at issue fell within such coverage, and whether mutual mistake required reformation of the policy.
• A school district, which in years past had permitted oil and gas exploration and drilling on its high school campus, was sued in multiple lawsuits for personal injury and death allegedly caused by the contamination created by these activities. The district tendered its defense its insurer, which disputed coverage. Primary issue was whether the exclusion in the policy for pollution and contamination eliminated coverage for the lawsuits.
• A financially troubled bank, insured under a type of policy known as a banker's blanket bond, was denied coverage for its legal expenses in responding to regulatory subpoenas and in suing the regulators who ordered its liquidation. The bank then sued the insurance broker it had hired to purchase the banker’s blanket bond for malpractice and negligence. Issues included whether another commercially available policy existed that would have covered the bank’s legal expenses, and whether the broker owed a duty to the bank to recommend self-insurance.

• Plaintiff rock band sued a video game publisher for violation of the right to privacy and unfair competition, alleging that the use of computer-generated images of the band in the publisher’s Band Hero video game exceeded the uses permitted by the band’s licensing agreement. The primary issue was whether the use of the band’s images was “transformative” artistic expression, protected from suit by the First Amendment.
• Developer of a high protein pudding recipe alleged a claim for misappropriation of trade secrets against a competitor under the Uniform Trade Secrets Act. Primary issues included: (1) whether the developer described his alleged trade secret (his recipe and manufacturing process) in sufficient particularity to satisfy Code of Civ. Proc., § 2019.210, which requires that to commence discovery regarding the trade secret in any action alleging misappropriation under the Uniform Trade Secrets Act, the party alleging the misappropriation must identify the trade secret with reasonable particularity, and (2) whether to meet the required particularity, the description of the trade secret must explain how it differs from the general knowledge of skilled persons in the field to which the secret relates.
• Defendant sold to plaintiff (the co-owner) his interest in a business that rented modern, contemporary, and science fiction props to movie and television productions. He resigned his positions as president and director, became an as-needed consultant, and agreed not to divulge or use the company’s trade secrets. After defendant later opened a similar prop business in Vancouver, Canada (a site he had explored for his former company), plaintiff sued for breach of fiduciary duty, breach of contract, and misappropriation of trade secrets under the Uniform Trade Secrets Act. Issues included whether plaintiff could demonstrate that defendant disclosed to third parties or used confidential information he obtained from plaintiff’s company.

• Plaintiff homeowner sued a public electric utility for intentional infliction of emotional distress, negligence, and nuisance, after suffering electrical shocks caused by the intrusion into the home of stray electrical voltage generated by one of the utility’s substations. Primary issues involved whether, under Pub. Util. Code, § 1759, tort claims involving stray voltage are within the exclusive authority of the California Public Utilities Commission, and whether the evidence supported the claims and damage awards.
• Parents’ son died after being struck by a rental car. Parents sued the rental car company for wrongful death and negligence, alleging that the driver to whom the company had rented the car had suffered DUI convictions within the prior 48 months, that such information was readily available from an electronic driver’s license check, and that the rental agency should have known the driver’s driving record and declined to rent a vehicle to him. However, plaintiffs alleged, the company had adopted a corporate policy of not performing electronic driver's license checks because the cost exceeded the cost of paying for losses caused by accidents involving such drivers. Primary issue involved whether, even though a rental car company has fully complied with the requirements of Veh. Code, §§ 14604 and 14608, and the rental driver does not appear impaired or otherwise unfit to drive at the time of rental, the rental car company has a duty to conduct an electronic search of the driving records of their customers before entrusting a vehicle to them.
• Plaintiff suffered traumatic brain injury when struck by a roller coaster at an amusement park and sued (among others) the entity that had purchased the assets of the manufacturer of the roller coaster in bankruptcy. The issues centered on whether the purchaser could be held liable on plaintiff’s products liability and negligence claims, including whether the bankruptcy purchase constituted a consolidation or merger, whether the asset purchase agreement was negotiated in good faith, whether the purchaser had assumed the manufacturer’s liabilities, and whether the purchaser could be deemed the manufacturer’s successor in interest.
• After her daughter died from a drug overdose while residing at a private drug treatment facility, mother sued various defendants associated with the facility for wrongful death. Issues included whether tort liability could be premised on the failure to perform, or the negligent performance of, a contractual duty of care, and whether the facility had a special relationship with the daughter giving rise to an independent duty of care.
• While accompanying defendant on an off-road motorcycle ride, plaintiff lost control of her bike in unexpectedly rough terrain and suffered a paralyzing spinal injury. Plaintiff sued defendant for negligence, alleging that when plaintiff became hesitant, defendant urged her to continue, assuring her that the trail where she later fell would be flat. Issues included whether the defendant’s conduct increased the risks inherent in off-road dirt bike riding, or whether he engaged in reckless conduct outside the range of activities generally involved in dirt bike riding, such that the doctrine of primary assumption of the risk did not apply.

• After discovering toxic mold in his apartment, residential tenant sued landlord for breach of the implied warranty of habitability and negligence. Primary issues concerned whether landlord had constructive notice of the condition and a concomitant duty to inspect the premises, based on the tenant’s reports of objective precursors of mold, including water intrusion on the bathroom walls and poor ventilation.
• The minor plaintiff suffered a stroke and paralysis after being bitten by a rattlesnake on the grounds of a juvenile detention facility at which he was detained. He sued the county that operated the facility as well as several facility employees for negligence. Issues included whether plaintiff’s claims against certain employees qualified under Gov. Code, § 840.2,1 as claims for liability for a dangerous condition of public property, and whether the claims against other employees (for negligent training regarding the facility’s policy for snake protection) were viable.
• Decedent’s survivors filed claims for wrongful death and medical negligence against a hospital and its personnel, alleging (based on an expert declaration) that the hospital and its personnel prematurely declared the decedent dead of a heart attack and placed her in the morgue, where she woke up, damaged her face in struggling unsuccessfully to escape, and ultimately froze to death. Primary issue was whether the survivors’ observation of the decedent’s injuries when they viewed the body at the hospital put them on inquiry notice of the alleged series of events, such that the action was barred by the applicable statute of limitations.
• Plaintiff sued her former spiritual advisor, whom she believed to be a Buddhist monk (he had been defrocked), for sexual assault. Issues included sufficiency of the evidence to support the claims and the award of damages.

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• Beneficiaries of an inter vivos trust filed a petition to remove the trustee, alleging that that the trustee mismanaged assets and charged excessive fees both as trustee and as the property manager of the trust's major asset, a 14-unit apartment building. Issues included whether the trustee had filed accountings that satisfied Prob. Code, §§ 16062, 16063, had failed to diversify trust assets in violation of the Uniform Prudent Investor Act, (Prob. Code, §§ 16045, et seq.), and had received excessive compensation.
• Conservator of husband’s estate brought an action against husband’s wife to recover estate property. Probate court found that wife had breached her fiduciary duty and exercised undue influence over husband, who had been diagnosed with dementia, by having him sign a quitclaim deed transferring to her his interest in their residence which they owned as joint tenants. Issues included: (1) whether the transfer of the property, which was community property, severed the joint tenancy and made husband and wife joint tenants; (2) whether, for his interest as tenant in common, husband was entitled to half of the proceeds wife received when she subsequently sold the property; and (3) whether husband was also entitled to half of wife’s interest as damages for her breach of fiduciary duty under Fam. Code, § 1101, subd. (g).
• Following the filing of a petition to probate the decedent’s holographic will, which purported to make a friend of decedent the administrator of decedent’s estate and sole residual legatee, decedent’s cousin filed an objection seeking to invalidate the will. Primary issue was whether, under the applicable rules of interpretation, the will was sufficiently definite in its terms to make the decedent’s friend the sole residual legatee.
• Decedent’s daughter filed a petition under Prob. Code, § 17200 to challenge a trust and various amendments created by her mother shortly before her death at age 94, and to impose a constructive trust on the estate. The final amendments to the trust disinherited the daughter in favor of two granddaughters. Issues included whether the daughter had standing to challenge the trust and the amendments, whether the decedent had the mental capacity to execute the trust and amendments, and whether the granddaughters had exerted undue influence on decedent.
• Claimant filed a petition to determine the existence of a trust under Prob. Code, § 17200. Issues included whether parol evidence could be considered to establish the existence of a trust where there was no showing the trust document was lost, and whether the evidence was sufficient to establish the terms of the trust and the nature and quantity of each beneficiary's interest.

• Plaintiff sued two drug manufacturers after suffering a severe reaction (a rare skin disease) caused by taking an over-the-counter ibuprofen medication. The jury awarded plaintiff more than $11,000,000 in economic damages, more than $21,000,000 in noneconomic damages, and more than $15,000,000 in punitive damages. Issues involved the viability of negligent and strict liability failure to warn theories, of negligent and strict liability design defect theories, of inconsistent verdicts, and of punitive damages.
• Plaintiff sued a bicycle manufacturer after being severely injured when the rear brakes on his bicycle failed. Issues, among others, involved which of the two alternative tests for determining the existence of a design defect applied -- the "consumer expectation test" or the "risk benefit test."
• Plaintiff was injured by a paper rewinding machine and sued the designer and manufacturer for strict products liability and negligence. Issues included the allocation of the burden of proof on the defense of unforeseeable use of the machine, and the applicability of that defense on the evidence.

• Six days after birth, the infant plaintiff suffered irreversible brain damage caused by "kernicterus," a condition that results when an infant's level of "bilirubin" (a waste product of red blood cells which causes jaundice) becomes toxic. Through his mother as guardian ad litem, the infant sued his pediatrician and the hospital where he was born for professional negligence. A jury awarded him, among other damages, $82,782,000 for future medical care (with a present value of $14 million) and $13.3 million for loss of future earnings (with a present value of $1,154,000), and apportioned 40 percent fault to the hospital, 55 percent to the pediatrician, and 2 percent to the parents. The issues included whether the trial court erred in (1) excluding evidence that future insurance benefits would cover much of plaintiff’s future medical costs, (2) incorporating interest under Civ. Code, § 3291 into the judgment, and in awarding interest on that part of the judgment representing the present value of future medical expenses, (3) determining under Code of Civil Proc., § 667.7, subd. (a), that the Hospital was not adequately insured, thereby requiring it to post security adequate to assure full payment of the periodic payments judgment, and (4) permitting the Hospital to provide such security in the form of an annuity from an approved provider, payable to the Hospital, sufficient to fund the periodic payments in each year they were required.
• On behalf of a patient, defendant neurologist submitted to the Department of Motor Vehicles an evaluation form stating that the patient’s epileptic condition no longer affected his ability to drive safely, thereby resulting in the reinstatement of the patient’s driver’s license. Later, the patient suffered an epileptic seizure while driving and caused an accident in which plaintiffs were critically injured. Plaintiffs sued the neurologist for negligence, based on the evaluation she submitted to DMV. Issues included whether submission of the form to the DMV was a communication protected by the litigation privilege of Civ. Code, § 47(b), and whether the neurologist’s liability could independently be based on a breach of the standard of care for failing to warn the patient not to drive.
• Plaintiff developed serious bedsores from skin breakdown while recovering in the hospital from gunshot wounds he suffered in a robbery. He sued the hospital and several personnel for medical negligence, alleging that the hospital staff breached the standard of care in treating and helping to prevent his bedsores. Primary issue concerned the admissibility and sufficiency of his expert evidence to show a breach of the standard of care.
• Plaintiff sued his former attorneys for malpractice, alleging that they gave him negligent advice regarding the appropriate time to file a Chapter 7 bankruptcy petition in order to have certain tax debts discharged in bankruptcy. Issues involved: (1) whether the scope of the attorneys’ representation was limited to negotiating an offer in compromise of the tax debts with the taxing agencies, and did not include filing the bankruptcy petition, and (2) whether plaintiff could prove that any conduct by the attorneys was the legal cause of his alleged injury.
• Plaintiff immigrants, subject to IRS deportation orders and in custody, sued their former attorneys for malpractice and breach of fiduciary duty in connection with, among other things, filing a bond redetermination motion. Primary issue involved whether plaintiffs could prove that the attorney’s alleged deficiencies in the bond determination motion procedure caused plaintiffs to remain in IRS custody.

• Plaintiff, whose real property was subject to a nonjudicial foreclosure proceeding, sued a sub-escrow in the foreclosure proceeding. Plaintiff alleged that the sub-escrow failed to record a request for reconveyance of a deed of trust that secured a promissory note. Issues included whether, under Civ. Code, § 2941, the sub-escrow owed a statutory duty to the owner to ensure the recording of a request for reconveyance or owed such a duty under any other applicable law.
• Homeowners filed suit for slander of title and negligence based on an alleged wrongful nonjudicial foreclosure, naming as a defendant the trustee who had recorded the notice of default on the property on instructions by the homeowner’s creditor. Primary issue was whether Civ. Code, § 2924 deems the statutorily required mailing, publication, and delivery of notices in nonjudicial foreclosure, and the performance of statutory nonjudicial foreclosure procedures, to be privileged communications under the qualified common interest privilege of Civ. Code, § 47, subd. (c)(1).
• Plaintiffs, longtime owners of a landlocked, undeveloped lot, sued their neighbors, seeking to establish their continuing right to use a driveway owned by the neighbors, which was the sole means of access to plaintiffs’ lot. Issues included whether, under the relative hardship doctrine, plaintiffs were entitled to an “equitable easement” for use of the driveway.
• After a homeowner’s association placed restrictions on proposed construction on an unimproved lot, the property owners sued, among others, two members of the association’s board, alleging they had a conflict of interest in urging disapproval of the project. Issues included whether the evidence showed that the sued individuals had any role in the placing of the restrictions by the association’s architectural committee.
• Commercial tenant in a shopping mall sued landlord for declaratory relief over a lease dispute. Issues included whether the lease agreement authorized the landlord to charge the tenant a management or administrative fee as part of the common area maintenance cost.

• Commercial landlord sued tenant for breach of written lease, account stated, and open book account, and prevailed at trial receiving unpaid rent, prejudgment interest, and late fees. Issues included the viability of the awards based on the evidence presented.
• Property owners sought permits from the county to drill water wells on their properties. Issues involved whether Bus. & Prof. Code, § 7044, subd. (a), which exempts from state contractor laws property owners who perform work on their own properties, applied to exempt the owners from Cal. Water Code, § 13750.5, which requires any person who constructs a water well in California to hold a C-57 license.

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• Plaintiff and defendant, both flight attendants for the same airline, were on layover in Los Angeles when the car driven by defendant collided with another vehicle, causing injuries to plaintiff, the passenger. Plaintiff sued defendant for negligence. Primary issues involved whether worker’s compensation was plaintiff’s sole remedy against defendant under (1) Lab. Code, § 3601, which applies when one employee is injured by a co-employee "acting within the scope of his or her employment," or (2) the "commercial traveler rule," under which a commercial traveler is regarded as acting within the course of his employment during the entire period of his travel upon his employer's business.
• Plaintiff employee sued his employer after he was severely injured while loading material onto a die in a power press. Primary issue involved the application of the exception to worker’s compensation exclusivity created by the Lab. Code, § 4558, which sets the conditions of employer liability for removal of or failure to install a power press operation guard.