California Torts HIGHLIGHTS PUBLICATION UPDATE. Route to:

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1 PUBLICATION UPDATE Route to: California Torts Publication 116 Release 67 September 2019 HIGHLIGHTS Case Law Updates Employee Claiming Unpaid Wages Could Not Sue Payroll Company Hired by Employer. In Goonewardene v. ADP, LLC (2019) 6 Cal. 5th 817, the California Supreme Court held that an employee bringing an unpaid wage claim against his or her employer could not also sue the payroll company hired by the employer to manage the payroll as a third-party beneficiary under the contract or for negligence or negligent misrepresentation. See Ch. 1, Negligence: Duty and Breach, 1.04[2]. Ordinary Negligence Standard Applied to University s Duty to Protect Students. In Regents of University of California v. Superior Court (2018) 29 Cal. App. 5th 890, the court of appeal held that a university s duty to protect students from foreseeable acts of violence is governed by the ordinary negligence standard of care, that is, the degree of care that ordinarily prudent people would reasonably be expected to exercise under the circumstances, rather than some more narrow standard of care. The court also held that while the discretionary acts immunity of Gov. Code might apply to a university s policy decision to create specific programs and protocols to identify and respond to threats of violence on campus, the manner in which the university and its employees executed those programs with respect to a particular foreseeable threat would implicate only ministerial decisions and would not be protected by immunity under that statute. See Ch. 1, Negligence: Duty and Breach, 1.12[6][b]. University and National Fraternity Organization Had No Duty to Prevent Injury at Fraternity Party. In University of Southern California

2 v. Superior Court (2018) 30 Cal. App. 5th 429, the court of appeal held that a University did not have a duty to a student from another university to protect that student from injury at a fraternity party at which alcohol was being served, as the University did not possess or control the fraternity premises, the University had no special relationship with the fraternity or its members that would give rise to a duty to protect the fraternity s guests at the party, and the University had not, merely by virtue of adopting policies regarding alcohol use and providing security patrols, assumed a duty to protect guests at off-campus fraternity parties. In Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal. App. 5th 70, a subsequent opinion in the same case, the court of appeal held that the national fraternity organization, which set general policies governing the operations of local chapters and had the general authority to discipline them, owed no duty to control the local fraternity chapter or its members as the national organization did not monitor day-to-day operations and did not own or have the ability to control the fraternity house. See Ch. 1, Negligence: Duty and Breach, 1.12[6][b]. Utilization Review Decisions Covered by Workers Compensation Exclusive Remedy Doctrine. In King v. CompPartners, Inc. (2018) 5 Cal. 5th 1039, the California Supreme Court held that an injury allegedly caused by the decisions of utilization review physicians reviewing treatment under a workers compensation claim was covered by the exclusive remedy doctrine, as utilization reviewers, like independent claims adjustors, stand in the shoes of employers when reviewing on behalf of employers the employer s own responsibilities owed to employees. See Ch. 10, Effect of Workers Compensation Law, Government Claims Periods Not Affected by Notice of Intent to Commence Suit Against Public Healthcare Entity. In Last Frontier Healthcare Dist. v. Superior Court (2019) 33 Cal. App. 5th 492, the court of appeal held that filing a notice of an intent to commence suit with a public entity healthcare provider does not extend or toll any claims-filing time periods under the Government Claims Act. See Ch. 31, Liability of Physicians and Other Medical Practitioners, 31.03[1], and Ch. 62, Claims and Actions Against Public Entities and Employees, 62.60[1][b][iv]. Sworn Declarations and Transcripted Testimony May Be Considered in Ruling on Anti-SLAPP Motion. In Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal. 5th 931, the California Supreme Court held that when considering a special motion to strike brought under the anti-slapp statute, Code Civ. Proc , as an alternative to proper affidavits, the court may consider written declarations signed under penalty of perjury, as well as transcripted or recorded sworn testimony from a prior proceeding made under penalty of per-

3 jury and properly authenticated. See Ch. 40, Fraud and Deceit and Other Business Torts, [3][b][ii][B]. Reversal of Criminal Conviction Due to Exclusionary Rule Did Not Support Malicious Prosecution Action. In Mills v. City of Covina (9th Cir. 2019) 921 F.3d 1161, the Ninth Circuit Court of Appeals held that the reversal of a criminal conviction on the sole grounds that the evidence used to obtain the conviction should have been excluded under the Fourth Amendment exclusionary rule does not constitute a favorable termination for purposes of a subsequent malicious prosecution action. See Ch. 43, Malicious Prosecution and Abuse of Process, 43.04[1][c]. Malpractice Limitations Period Applied to Malicious Prosecution Action Against Attorney. In Connelly v. Bornstein (2019) 33 Cal. App. 5th 783, the court of appeal held that the attorney malpractice limitations period of Code Civ. Proc applies to malicious prosecution actions against attorneys. See Ch. 43, Malicious Prosecution and Abuse of Process, 43.07[4]. Child of Unmarried Parents Must Meet Statutory Requirements to Sue for Father s Wrongful Death. In Stennett v. Miller (2019) 34 Cal. App. 5th 284, the court of appeal held that a biological child of unmarried parents must meet one of the conditions of Prob. Code 6453 or Code Civ. Proc in order to have standing to sue for the wrongful death of his or her alleged biological father. See Ch. 55, Death and Survival Actions, 55.03[3][d]. Controller s Office Not Vicariously Liable for Alleged Abuse of Process Committed by Employees. In Yee v. Superior Court (2019) 31 Cal. App. 5th 26, the court of appeal held that because the State Controller s office, as a public entity, could not be directly liable for the tort of abuse of process, and only the Controller s office and not its employees individually could legally conduct an unclaimed property audit, the court of appeal held that the Controller s office could not be held vicariously liable for abuse of process based on any alleged misuse of discovery documents to conduct an unclaimed property audit by the Controller s own employees. See Ch. 60, General Principles of Liability and Immunity of Public Entities and Employees, 60.21[3]. Standard for Enforcing Forum Selection Clause Clarified. In Korman v. Princess Cruise Lines, Ltd. (2019) 32 Cal. App. 5th 206, the court of appeal held that in a suit brought in California, a defendant wishing to enforce a contractual forum selection clause may do so by bringing a motion under the forum non conveniens statutes. The court also held that a mandatory forum selection clause will generally be given effect without any analysis of convenience so long as enforcement of the clause would not be unreasonable, and enforcement would be considered unreasonable if the selected forum would be unavailable or un-

4 able to accomplish substantial justice, or when there is no rational basis for the selected forum. See Ch. 71, Commencement, Prosecution, and Dismissal of Tort Actions, 71.24[1]. Only Requesting Party May Recover Expenses After Bad-Faith Refusal to Agree to Requests for Admission. In Design Built Systems v. Sorokine (2019) 32 Cal. App. 5th 676, the court of appeal held that after a bad-faith refusal to agree to requests for admission at trial, expenses may only be recovered by the party who made the requests for admission and may not be awarded to another party who did not make the requests. See Ch. 72, Discovery, 72.46[4][d]. Accepted Section 998 Settlement Offer Did Not Create Independent Right to Recover Attorney Fees. In Linton v. County of Contra Costa (2019) 31 Cal. App. 5th 628, the court of appeal held that an accepted settlement offer made under Code Civ. Proc. 998 that states that a party may seek attorney fees as allowed by law does not create a substantive right to recover attorney fees from the other party unless there is an independent statutory or contractual basis for awarding such fees. See Ch. 73, Settlement and Release, 73.07[1]. Insurer s Liability for Fees and Costs Under Code Civ. Proc. 998 Not Limited by Insurance Policy Limits. In Meleski v. Estate of Albert Hotlen (2018) 29 Cal. App. 5th 616, the court of appeal held that when a plaintiff seeks to recover from a tortfeasor s insurer under a liability policy but the insurer denies the claim, thereby forcing the plaintiff to file a lawsuit during which the insurer controls the litigation despite the policyholder being the nominal defendant, the plaintiff may recover fees and costs from the insurer under Code Civ. Proc. 998 if the insurer is served with and rejects a reasonable settlement offer, and payment of fees and costs by the insurance company is not limited by the relevant insurance policy coverage limits. See Ch. 73, Settlement and Release, 73.07[5][a]. Duty to Defend Under Indemnity Clause Triggered as Matter of Law. In Centex Homes v. R-Help Construction Co., Inc. (2019) 32 Cal. App. 5th 1230, the court of appeal held that when the underlying complaint alleges factual circumstances that suggest the possible negligence of a contractual indemnitor, the indemnitor s duty to defend the indemnitee is triggered as a matter of law and is not a factual question that should be submitted to the jury. The court also stated that this duty remains until the lawsuit is concluded or the indemnitor can conclusively show by undisputed facts that plaintiff s action is not covered by the indemnity agreement. See Ch. 74, Resolving Multiparty Tort Litigation,

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7 FILING INSTRUCTIONS California Torts Publication 116 Release 67 September 2019 Check As Done 1. Check the Title page in the front of your present Volume 1. It should indicate that your set is filed through Release Number 66. If the set is current, proceed with the filing of this release. If your set is not filed through Release Number 66, DO NOT file this release. Please call Customer Services at for assistance in bringing your set up to date. 2. This Release Number 67 contains only White pages. 3. Circulate the Publication Update among those individuals interested in the contents of this release. FI 1

8 Check Remove Old Insert New As Pages Numbered Pages Numbered Done For faster and easier filing, all references are to right-hand pages only. VOLUME thru thru thru thru thru thru thru thru thru thru thru thru thru thru thru VOLUME VOLUME thru thru thru thru thru thru thru thru thru thru thru thru thru (1) thru (1) thru (2)(a) thru thru A-58.1 thru 40A A-59 thru 40A A-89 thru 40A A-89 thru 40A B B-82.1 thru 40B-82.3 FI 2

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