Recent Wins: Robert A. Olson
Court of Appeal affirms summary judgment for GMSR’s client, rejecting insurance coverage of slow, continuous water leak
April 2, 2013
Brown et al. v. Mid-Century Insurance Company (2013) 2013 Cal.App. Unpub. LEXIS 2389 (California Court of Appeal, Second Appellate District, Division Seven) [unpublished]. A water pipe corroded over several decades until water began to leak from two small holes and collect underneath the insureds’ house. The leak continued unnoticed, eventually collecting enough water to cause noticeable mold and condensation to appear within the house’s interior. A month later, the homeowners discovered the source of the mold and condensation—the water discharged from the pipe. The homeowners’ policy did not cover mold damage and only covered water damage if caused by a “sudden and accidental” discharge; it specifically excluded continuous or intermittent discharges. Affirming summary judgment for GMSR’s carrier client, the Court of Appeal held that the leak had indisputably “occurred over a period of time” and that, as a matter of law, the water discharge was not “sudden.” The Court rejected the homeowners’ expert’s “metaphysical moment theory”—i.e., in a “nanosecond” the pipe went from a water-tight condition to a non-water-tight condition—as a basis for a “sudden” discharge because accepting it would impermissibly “read the temporal component of the term ‘sudden’ out of the Policy.”
Brown et al. v. Mid-Century Insurance Company (2013) 2013 Cal.App. Unpub. LEXIS 2389
GMSR obtains reversal in Court of Appeal in commercial guaranty action
March 26, 2013
Bank of America, N.A. v. Danny Lahave, et al. (2013) 2013 Cal.App. Unpub. LEXIS 2161 (California Court of Appeal, Second Appellate District, Division One) [unpublished]. A commercial mortgage loan guaranty purported to waive any defense of illegality that the borrower might have against collection. A U.S. bankruptcy court had previously determined that, as to the borrower, the late fee was an unenforceable penalty that violated public policy. However, relying on the waiver provision, the superior court enforced a late fee against GMSR’s clients, the borrower’s guarantors. The Court of Appeal reversed. It agreed with GMSR that the late fee was an illegal penalty that was as unenforceable against the guarantors as a matter of public policy and that the waiver was unconscionable
Bank of America, N.A. v. Danny Lahave, et al. (2013) 2013 Cal.App. Unpub. LEXIS 2161
Court of Appeal affirms summary judgment in favor of GMSR’s carrier client in first-party coverage dispute
December 18, 2012
Cardio Diagnostic Imaging, Inc. v. Farmers Group, Inc. et al. (2012) 212 Cal.App.4th 69 (California Court of Appeal, Second Appellate District, Division Two) [published]. When a sewer backed up in the building where plaintiff had its office, water overflowed a toilet in an upper-floor office and then seeped down and caused damage in plaintiff’s lower-level suite. The carrier, GMSR’s client, denied coverage under the standard provision in plaintiff’s policy that excluded water damage caused directly or indirectly by water that “backs up or overflows from a sewer, drain or sump.” Plaintiff sued for breach of contract and bad faith. The trial court granted the carrier’s summary judgment motion, finding that the provision unambiguously excluded the damages from coverage. The Court of Appeal affirmed. It agreed that the exclusion is unambiguous, and held the word “overflows”—preceded by the word “or”—means something different than “backs up.” In doing so, it flatly rejected plaintiff’s interpretation of the phrase “backs up or overflows” as redundant, and found that the language was not reasonably susceptible to the interpretation plaintiff asserted “because that interpretation can be reached only by ignoring part of the language.”
Cardio Diagnostic Imaging, Inc. v. Farmers Group, Inc. et al. (2012) 212 Cal.App.4th 69
Court of Appeal orders a new trial for GMSR’s clients on the basis of disjunctive wording in a special verdict form
December 12, 2012
Siry v. Farkhondehpour et al. (2012) 2012 Cal.App. Unpub. LEXIS 9014 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. Plaintiff sued its two partners, including GMSR’s clients, both in their individual capacities and in their capacities as trustees of various trusts, claiming that they wrongfully withheld distributions. In a special verdict, the jury found defendants liable “individually or as trustees,” and awarded plaintiff compensatory and punitive damages. On appeal, GMSR argued that the disjunctive verdict mandated reversal and a new trial. The Court of Appeal agreed, reversing both the judgment and an accounting order premised on the judgment.
Siry v. Farkhondehpour et al. (2012) 2012 Cal.App. Unpub. LEXIS 9014
Ninth Circuit affirms $319 million award for GMSR’s client
December 3, 2012
Celador International, Inc. v. American Broadcasting Companies, Inc., et al. (2012) 2012 U.S. App. LEXIS 24820 (United States Court of Appeals for the Ninth Circuit) [unpublished]. GMSR’s client Celador International licensed its mega-hit game show Who Wants To Be A Millionaire to ABC and a subsidiary in exchange for half of the profits. When ABC and the subsidiary reported that there were no profits despite the show’s runaway success, Celador sued for breach of the licensing agreement. A federal jury agreed that defendants had breached the express terms of the agreement and the implied covenant of good faith and fair dealing, and awarded $269 million in damages (plus an additional $50 million in stipulated prejudgment interest). The Ninth Circuit affirmed. Rejecting defendants’ smorgasbord of claimed errors, it held that the district court properly allowed the jury to determine the meaning of the licensing agreement, that the trial court did not commit any reversible evidentiary or instructional error, and that the record supported the jury’s award of $269 million in damages.
Celador International, Inc. v. American Broadcasting Companies, Inc., et al. (2012) 2012 U.S. App. LEXIS 24820
Court of Appeal affirms judgment in favor of GMSR’s carrier client in a coverage dispute, allowing proof at trial of insured’s additional misrepresentations
November 28, 2012
Guerrette v. Farmers Group, Inc. et al. (2012) 2012 Cal.App. Unpub. LEXIS 8636 (California Court of Appeal, Second Appellate District, Division Three) [unpublished]. Plaintiff lost his house and much of his personal property in a fire. His insurance carrier, GMSR’s client, stopped paying his claim upon discovering that plaintiff had made four material misrepresentations in the submission of his claim. At the trial of his suit for breach of contract and bad faith, over plaintiff’s opposition the court allowed the carrier to introduce evidence of misrepresentations beyond the four initially identified. The jury found for the carrier. The Court of Appeal affirmed. It found that the trial court did not err in allowing proof of misrepresentations beyond the four initially identified, and rejected plaintiff’s assertion that denial of a claim was tantamount to cancelling an insurance policy, which by statute would limit the carrier to the reasons it initially specified.
Guerrette v. Farmers Group, Inc. et al. (2012) 2012 Cal.App. Unpub. LEXIS 8636
Court of Appeal affirms preliminary injunction requiring former independent contractor insurance agent to return confidential information to GMSR’s client
February 23, 2012
Farmers Insurance Exchange et al. v. Song (2012) 2012 Cal.App. Unpub. LEXIS 1363 (California Court of Appeal, First Appellate District, Division Three) [unpublished]. The Court of Appeal affirmed a preliminary injunction in favor of GMSR’s insurer client against its former sales agent. The agent’s agreement with the insurer provided that “all manuals, lists and records of any kind (including information pertaining to policyholders and expirations)” were the principal’s confidential property, that the materials were not to be used or divulged, and should be returned to the insurer upon termination of the agency. After the agent was terminated, he asserted that the contract provision was an invalid covenant not to compete that violated Business and Professions Code 16600, and refused to return the materials. The insurer obtained a preliminary injunction prohibiting further use of its materials and requiring the agent to return them. The Court of Appeal affirmed, finding that the confidential policyholder information at issue was likely to be found a trade secret under the Uniform Trade Secrets Act and therefore supported injunctive relief.
Farmers Insurance Exchange et al. v. Song (2012) 2012 Cal.App. Unpub. LEXIS 1363
Court of Appeal issues writ directing summary judgment for GMSR’s client in case arising out of store shooting
January 12, 2012
Coffee House v. Superior Court (2012) 2012 Cal.App. Unpub LEXIS 263 (California Court of Appeal, Second Appellate District, Division Five) [unpublished]. Two unidentified men entered Coffee House, GMSR’s client, and started shooting. They fatally shot a patron named Hung and wounded three others, who sued Coffee House. Two months earlier, a man identified as Viet had entered Coffee House, verbally accosted Hung for “bad-mouthing” him, and displayed a firearm in a threatening manner. Viet was later seen at Coffee House in Hung’s presence, with no apparent difficulties. Plaintiffs’ experts claimed that had the first incident been reported to police there would have been greater law enforcement presence in the area. The trial court denied summary judgment. The Court of Appeal issued an alternative writ and then a peremptory writ of mandate directing judgment for GMSR’s client Coffee House, finding an insufficient showing of causation as a matter of law.
Coffee House v. Superior Court (2012) 2012 Cal.App. Unpub LEXIS 263
Court of Appeal holds title insurance escrows fall within insurance-related work exclusion, affirming summary judgment for GMSR's client
December 16, 2011
Chicago Title Ins. Co. v. St. Paul Mercury Ins. (2011) 2011 Cal.App. Unpub. LEXIS 9627 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. The Court of Appeal affirmed summary judgment for GMSR’s client, St. Paul Mercury Insurance. Chicago Title’s officers and employees were implicated in a mortgage/real estate fraud scheme that resulted in nearly $100 million in settlements and judgments. Chicago Title tendered its defense to its general liability carrier St. Paul. The Court of Appeal held that there was no duty to defend because of an “insurance and related work” exclusion. The Court rejected the argument that the escrows used for the fraudulent transactions were non-insurance work, based among other things on a statute in the Insurance Code that defines “the business of title insurance” as including the conduct of escrows through which title insurance is issued.
Chicago Title Ins. Co. v. St. Paul Mercury Ins. (2011) 2011 Cal.App. Unpub. LEXIS 9627
Court of Appeal affirms preliminary injunction in favor of GMSR client barring former insurance agent’s continued use of confidential policyholder information
December 6, 2011
Farmers Insurance Exchange et al. v. St. Fleur (2011) 2011 Cal.App. Unpub. LEXIS 9331 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. The Court of Appeal affirmed with directions a preliminary injunction in favor of GMSR’s client Farmers against its former insurance sales agent, Kettelie St. Fleur. After Farmers terminated St. Fleur, her counsel threatened to help her switch 1200 policyholders to other carriers in a manner that would be untraceable. As a result, Farmers sought and obtained an injunction that prevented St. Fleur from using confidential information that she gained while she was an agent, communicating with any policyholder she had formerly serviced, and soliciting or servicing policyholders in her district for one-year following her termination. The Court affirmed the preliminary injunction but remanded with directions to insert the words “regarding the business of insurance,” in order to clarify the type of communications prohibited by the injunction.
Farmers Insurance Exchange et al. v. St. Fleur (2011) 2011 Cal.App. Unpub. LEXIS 9331
Court of Appeal finds GMSR's client is entitled to an evidentiary hearing on mechanic’s lien
September 7, 2011
HBI Construction, Inc. v. Superior Court (2011) 2011 Cal.App. Unpub. LEXIS 6745 (California Court of Appeal, Fourth District, Division Two) [unpublished]. GMSR's client, HBI, had a mechanic's lien on seven properties that were part of a single, overarching construction project. After foreclosure proceedings wiped out the lien on six of the properties, the owner of the seventh filed a motion asking the trial court to apportion the lien based on a formula that it admitted was the most favorable to it. The trial court granted the motion, adopting the proposed apportionment over HBI's objection that it could not make such a determination without taking additional evidence. GMSR filed a writ petition on HBI's behalf. Granting the petition, the Court of Appeal held that apportioning the lien without taking evidence was an abuse of discretion. It ordered the trial court to vacate its ruling, and to hold an evidentiary hearing to determine what portion of the lien was attributable to the property at issue.
HBI Construction, Inc. v. Superior Court (2011) 2011 Cal.App. Unpub. LEXIS 6745
Court of Appeal affirms defense verdict in automobile case for GMSR’s client
August 31, 2011
Miller v. Ron Taylor Drilling (2011) 2011 Cal.App. Unpub. LEXIS 6635 (California Court of Appeal, Second Appellate District, Division Six) [unpublished]. The defendant’s vehicle, traveling at about 3 or 4 miles per hour, tapped the plaintiff’s car, which was waiting at a traffic light. The plaintiff later had two major back/neck operations, which that he attributed in his lawsuit to the accident, and his wife claimed also joined in the lawsuit, claiming loss of consortium. The jury rendered a defense verdict, issued a verdict for the defendant, finding that the plaintiff’s symptoms and injuries pre-dated the accident. GMSR successfully defended the judgment on appeal. The Court of Appeal held that substantial evidence supported the verdict and that the jury could properly reject the plaintiff’s expert evidence; that the trial was fair even though the wife’s lawyer (the law partner of the husband’s lawyer) was not permitted to separately cross-examine witnesses; and that the $126,000 section 998 settlement offer made a month before trial justified the trial court’s award of expert witness costs to the defendant.
Miller v. Ron Taylor Drilling (2011) 2011 Cal.App. Unpub. LEXIS 6635
Court of Appeal confirms broad scope of attorney-client and work product protection
June 28, 2011
Fireman’s Fund Insurance Co. v. Superior Court (2011) 196 Cal. App. 4th 1263 (California Court of Appeal, Second Appellate District, Division Three) [published]. The trial court ordered an attorney who formerly represented Fireman’s Fund Insurance Co. to answer five deposition questions over objections of attorney-client and work product privileges. The trial court held that the attorney-client privilege applies only to communications directly between and an attorney and his or her client and that the absolute work product privilege applies only to an attorney’s work product that has been memorialized in written form. Fireman’s Fund sought a writ of mandate to vacate the discovery order, arguing that the trial court misconstrued the scope of the attorney-client privilege. Representing the Los Angeles County Bar Association, the Beverly Hills Bar Association, and the Association of Southern California Defense Counsel as amicus curiae, GMSR argued that the work product privilege extends to an attorney’s unwritten impressions, opinions and research. The Court of Appeal agreed and issued a writ of mandate on both grounds. First, the court held that under Evidence Code section 952, the attorney-client privilege covers both confidential communications and “a legal opinion formed” by an attorney. Second, the court held that despite the arguably contrary language of California’s absolute work product statute, the privilege applies to non-written work product—that a contrary interpretation would create absurd results and contradict both the statute’s legislative history and the historical development of the work product privilege on the state and national levels.
Fireman’s Fund Insurance Co. v. Superior Court (2011) 196 Cal. App. 4th 1263
Employer’s failure to add hours on wage statement causes no injury
May 18, 2011
Hill v. Sullivan Automotive Group, LLC (2011) 2011 Cal.App. Unpub. LEXIS 3726 (California Court of Appeal, Second Appellate District, Division Seven) [unpublished]. California law requires that an employee’s wage statement state regular, overtime, and total hours worked. Affirming summary judgment for GMSR’s client in a class action, the Court of Appeal held that there is no violation and no actionable injury where the wage statement shows all regular and overtime hours (and the amounts paid for each) and the only issue is whether the employee had to add the regular and overtime hours together to obtain total hours.
Hill v. Sullivan Automotive Group, LLC (2011) 2011 Cal.App. Unpub. LEXIS 3726
Court strikes multimillion economic award against hospital based on plaintiff's settlement with doctor
March 23, 2011
Leung v. Verdugo Hills Hospital (2011) 193 Cal. App. 4th 971 / 2011 Cal.App. LEXIS 335 (California Court of Appeal, Second Appellate District, Division Four) [partially published]. Plaintiff sued a pediatrician and a hospital, GMSR's client, for injuries arising out of untreated jaundice. Plaintiff settled with the pediatrician, but the trial court ruled that the settlement was not in "good faith." In the trial against the hospital, the jury awarded $15.5 million in economic damages—the present value of a $96 million award—for which the judgment held the hospital jointly and severally liable. On appeal, GMSR successfully urged the court to apply the common law rule that the release of one joint tortfeasors releases all. As a result, the hospital's liability was limited to the $100,000 in noneconomic damages for which it is severally liable.
Court of Appeal affirms $3.2 million judgment for movie studio’s underpayment of profit participation and reverses a nonsuit on fraud and other claims
May 25, 2010
Alan Ladd Jr. v. Warner Bros. Entertainment, Inc. (2010) 184 Cal.App.4th 1298 (California Second Appellate District, Division Three) [partially published]. GMSR represented Academy Award-winning producers Alan Ladd Jr. and Jay Kanter, whose films include Chariots of Fire, Blade Runner and Body Heat. They sued Warner for consistently undervaluing the television license fees for their movies when Warner licensed movies in groups, including a practice known as “straightlining” that allocated the same licensing fee to each movie regardless of its actual value. They also sued Warner for fraudulently misrepresenting that Blade Runner would never be profitabe, for miscalculating Blade Runner profits, and for wrongfully removing credits and logos from hundreds of thousands of DVD copies. A jury awarded $3.2 million for Warner’s undervaluation of the movies, but the trial court nonsuited the other claims, finding that a settlement barred the Blade Runner profit claims and that there was insufficient evidence of fraud and of financial damage from the credit/logo deletions. The Court of Appeal affirmed the $3.2 million jury verdict in the opinion’s published portion, among other things rejecting Warner’s attempt to limit damages on the basis of the statute of limitations because of a failure of proof at trial. In the opinion’s unpublished portion, the Court reversed the nonsuited claims and remanded them for trial.
Alan Ladd Jr. v. Warner Bros. Entertainment, Inc. (2010) 184 Cal.App.4th 1298
Court of Appeal confirms that insurer was justified in denying insurance benefits
February 10, 2010
Bridal Images, Inc. v. Truck Insurance Exchange (2010) 2010 Cal.App. Unpub. LEXIS 1001 (California Court of Appeal, Second Appellate District, Division Five) [unpublished]. The plaintiff, a designer and merchant of bridal gowns and accessories, sued its insurer, GMSR’s client, for breach of contract and insurance bad faith, after the insurer refused to pay a substantial water-damage claim resulting from a broken fire sprinkler. The insurer obtained summary adjudication dismissing the bad faith claim, but the insured prevailed in a bench trial of its breach of contract claim for the insurance proceeds. In the insured’s appeal from the dismissal of the bad faith claim, the Court of Appeal confirmed the trial court’s determination that a reasonable insurer could genuinely dispute the claim’s validity under the undisputed facts. The insurer therefore was entitled to deny the claim without incurring potential liability for insurance bad faith, even though the claim itself was later held to be valid.
Bridal Images, Inc. v. Truck Insurance Exchange (2010) 2010 Cal.App. Unpub. LEXIS 1001
Court of Appeal holds that homeowners who employed an unlicensed contractor to remodel their house are not subject to OSHA
September 2, 2009
Cortez v. Abich (2009) 177 Cal.App.4th 261 (California Court of Appeal, Second Appellate District, Division Four). GMSR's client homeowners hired an unlicensed contractor to assist in a home remodeling project. A worker injured during the project sued the homeowners, asserting that they were liable for OSHA violations leading to his injury. Affirming summary judgment in favor of GMSR's clients, the Court of Appeal held that although hiring an unlicensed contractor meant that the homeowners were statutory employers of the injured worker, they owed no obligation to comply with OSHA when remodeling their own home. The court also held that the homeowners had no duty to warn the worker of the danger of climbing onto a half-demolished roof because the danger of falling through was open and obvious.
Clarifying a line of published authority, Court of Appeal holds that policyholder must arbitrate attorney fee claims in insurance bad faith action arising out of carrier’s defense of lawsuit against insured
December 17, 2008
Compulink Management Center, Inc. v. St. Paul Fire & Marine Ins. Co. (2008) 169 Cal.App.4th 289 (California Court of Appeal, Second Appellate District, Division Seven) [published]. An insured sued GMSR’s insurance carrier client for insurance bad faith arising in part out of a dispute concerning the payment of attorney’s fees to independent counsel representing the insured. Relying on an existing published decision, the trial court refused to compel a Civil Code section 2860 arbitration of the attorney fee dispute because that was not the sole dispute between the parties.
The Court of Appeal, agreeing with GMSR, concluded that the prior appellate decision had misconstrued early authority. The court here held that where an attorney fee dispute exists regarding fees to be paid to independent counsel, Civil Code section 2860 requires arbitration of that dispute, notwithstanding that there are other disputes between the parties.
Compulink Management Center, Inc. v. St. Paul Fire & Marine Ins. Co. (2008) 169 Cal.App.4th 289
In first-impression case, Court of Appeal dismisses as moot an appeal from overtime and class certification rulings
December 8, 2008
Larner v. Pacific Health Corp. (2008) 2008 Cal.App. LEXIS 2387 (California Court of Appeal, Second Appellate District, Division One). [published]. GMSR obtained the dismissal of an appeal against its client, a hospital, on the ground that the appeal was was moot. The trial court had rejected a former employee’s overtime claim against the hospital and denied the employee’s motion for class certification on other wage and hour claims. The plaintiff settled “all” her claims against the hospital under an agreement that purported to preserve her right to appeal; stipulated to entry of judgment for the hospital; and then appealed. The Court of Appeal agreed with GMSR’s position that the appeal was moot in light of the settlement. Reaching a matter of first impression under California law, the court found that the employee, as a putative class representative, had no continuing personal stake in the litigation and therefore that the appeal had to be dismissed.
Larner v. Pacific Health Corp. (2008) 2008 Cal.App. LEXIS 2387
Court of Appeal reverses judgment against GMSR client in commercial lease dispute
November 26, 2008
Burlington Coat Factory of California LLC v. Bella Terra Associates LLC (2008) 2008 Cal.App. Unpub. LEXIS 9642 (California Court of Appeal, Fourth Appellate District, Division Three). [unpublished]. GMSR obtained a reversal of a judgment against a commercial tenant in a dispute over the interpretation of a real estate tax provision in the tenant’s lease. The trial court had found the provision unambiguous in requiring the tenant to pay a multiple of future tax increases. GMSR successfully argued that the language was reasonably susceptible to a more limited interpretation and that the implied covenant of good faith and fair dealing imposed a duty on the landlord not to unreasonably allow taxes to be increased where, under the landlord’s reading of the lease, such an increase would increase the landlord’s profit. The Court of Appeal also reversed summary judgment against the tenant on the landlord’s claim that it was a bona fide purchaser from the tenant’s original landlord and therefore not bound by the parties’ prior course of dealing that was different than the landlord’s lease construction would have yielded.
Burlington Coat Factory of California LLC v. Bella Terra Associates LLC (2008) 2008 Cal.App. Unpub. LEXIS 9642
Court of Appeal holds insureds’ misrepresentations in prior insurance claim are relevant to denial of current claim
September 22, 2008
Peralda v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 7673 (California Court of Appeal, Second Appellate District, Division Four). [unpublished]. Plaintiff insureds sued GMSR’s client, claiming a bad faith denial of their fire loss claim. The carrier denied coverage because the insured admitted to providing inaccurate information and refused to answer other questions concerning their claim. During the course of the investigation, the carrier learned that the insureds had made material misrepresentations in connection with a prior, related fire claim. The plaintiffs lost after a bench trial. On appeal, they argued that the trial court erred by denying their motion in limine to bar evidence regarding the prior fire claim.
Agreeing with GMSR’s arguments, the Court of Appeal affirmed. It held that plaintiffs had waived any objections by failing to renew them after denial of their motion in limine and that, in any event, evidence of misconduct regarding the prior fire claim was relevant to a determination whether the carrier properly denied the second fire claim.
Peralda v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 7673
Court of Appeal reverses judgment for prejudicial error in refusing to instruct on anticipatory repudiation in an insurance agent termination case
July 22, 2008
Pavey v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 5884 (California Court of Appeal, Fourth Appellate District, Division One). [unpublished]. GMSR’s client, an insurer, terminated its agreement with one of its agents. The agreement called for the agent to turn over certain materials and rights and to refrain from soliciting existing policyholders for one year. The agreement also called for certain post-termination payments to the agent. When the carrier proffered the first of those payments, the agent indicated that he would not abide by his obligations. The trial court refused an anticipatory breach instruction, instead telling counsel that they could argue whether the plaintiff had adequately performed. The jury found for the plaintiff, awarding $158,000. On appeal the plaintiff attacked the validity of the post-termination obligations in the contract on grounds he did not urge at trial. The Court of Appeal held that the trial court erred in refusing the anticipatory breach instruction and found the error to be prejudicial given the closeness of the case and the arguments presented at trial. As GMSR urged, the Court of Appeal declined to address the newly-raised challenges to the contract’s post-termination provisions. GMSR was retained after the plaintiff filed his respondent’s brief, and wrote the reply brief and presented oral argument.
Pavey v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 5884
Court affirms summary judgment for GMSR client, ruling that insured had no benefits to assign to home buyer for damage occurring after insured sold property
March 24, 2008
Edwards v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 2428 (California Fourth District Court of Appeal, Division One) [unpublished]. Plaintiff purchased a house. The seller remained on the mortgage, however, and plaintiff buyer still owed a portion of the purchase price. Several days later, the house burned down. Not having insured the property, plaintiff obtained an assignment of policy benefits from the seller. The insurer, GMSR’s client, denied coverage and plaintiff sued. Agreeing with GMSR’s arguments, the Court of Appeal held that the seller had no policy benefits to assign to plaintiff because she had no insurable property interest at the time of the fire. The Court affirmed the summary judgment for the insurer.
Edwards v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 2428
False imprisonment coverage does not extend to sexual advances
March 7, 2008
Lyons v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 1939 (California Second District Court of Appeal, Division Two) [unpublished]. A former professional baseball player and sometime network announcer made advances in a hotel hallway to a woman who had been flirting with him. He pulled her aside in order to do so. When she sued, he sought a defense under his homeowner’s policy, claiming that pulling her aside triggered the policy’s false imprisonment coverage. The Court of Appeal affirmed a summary judgment for the insurer. Representing the insurer on appeal, GMSR successfully argued that the policy’s limitation to accidents governed the false imprisonment coverage and that the insured’s conduct could not have been deemed accidental. The Court also rejected the plaintiff’s argument that, so construed, the false imprisonment coverage was illusory.
Lyons v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 1939
Court affirms that GMSR client did not anticipatorily breach real estate contract by seeking cancellation of escrow
February 27, 2008
Guerrero v. Cordova Associates, Inc. (2008) 2008 Cal.App. Unpub. LEXIS 1582 (California Second District Court of Appeal, Division Four) [unpublished]. A real estate buyer contracted to buy property from the seller, GMSR’s client. The seller deposited a deed into escrow. Instead of depositing the purchase price in escrow, the buyer argued about zoning. The seller sought to cancel the escrow and eventually sold to another buyer. The buyer sued for specific performance, seeking the profits of the resale. The trial court initially found that the seller’s attempt to cancel the escrow was an anticipatory breach. GMSR successfully moved to vacate the judgment on the ground that the buyer’s failure to deposit the purchase price was not excused by the seller’s attempt to cancel the escrow, because the seller’s deposit of a grant deed into escrow is an irrevocable act. The Court of Appeal agreed and affirmed the judgment for the seller. GMSR attorneys Bob Olson and Alana Rotter represented the seller in post-trial proceedings and on appeal.
Guerrero v. Cordova Associates, Inc. (2008) 2008 Cal.App. Unpub. LEXIS 1582
Court of Appeal reverses dissolution of $200 million partnership and orders judgment for GMSR's clients
January 28, 2008
Marasco v. Superior Court (Ring) (2008) 2008 Cal.App. Unpub. LEXIS 712 (California Second District Court of Appeal, Division Seven) [unpublished]. GMSR obtained a reversal of a trial court’s order dissolving a highly profitable real estate partnership. The partnership owned a large apartment complex on a ground lease in Marina del Rey, California, valued by plaintiffs at upwards of $200 million. The partners were at an impasse over whether, and on what conditions, to sell the partnership’s asset. After a three-week trial, the trial court ordered dissolution, agreeing with plaintiffs that an immediate sale would be more profitable. On appeal, GMSR successfully argued that the trial court had no power to dissolve a partnership that was currently profitable and that the statutory provisions for dissolution in the event of impracticability of carrying on the partnership did not apply. The Court of Appeal reversed the dissolution judgment and ordered entry of judgment for GMSR’s clients.
Marasco v. Superior Court (Ring) (2008) 2008 Cal.App. Unpub. LEXIS 712
Court of Appeal reverses $1 million judgment, holding that the Parol Evidence Rule bars a terminated insurance agent's claim for fraud in the inducement
July 24, 2007
Dent v. Farmers Insurance Group of Companies (2007), 2007 Cal.App. Unpub. LEXIS 6013 (California Court of Appeal, Second Appellate District, Division Three) [unpublished]. Plaintiff became an insurance agent with GMSR's client, an insurance carrier. Several years later the carrier terminated her when she did not meet the carrier’s expectations. She sued, claiming that various things she had been told – about how much she might earn, about her training, about her ability to control her own business and about not being terminated except for specific reasons – were false. The jury awarded her $500,000 in compensatory damages and $500,000 in punitive damages. On appeal, GMSR attorneys Bob Olson and Cindy Tobisman successfully argued that none of the claimed misrepresentations were supported by substantial evidence and, in particular, that the agent's claim that she could not be terminated except for cause was barred by the parol evidence rule given the explicit without-cause termination provision in her agreement with the carrier.
Court of Appeal affirms trial court's denial of petition to compel arbitration in multimillion dollar attorney fee case
June 26, 2007
City of Santa Monica v. Baron & Budd, et al., (2007) 2007 Cal.App. Unpub. LEXIS 5185 (California Court of Appeal, Second District, Division 1) [unpublished]. GMSR's clients, a group of lawyers, represented the City of Santa Monica in a toxic contamination claim. After the lawyers achieved what the City called a "landmark" settlement with the oil company defendants, the City refused to pay their contingent fee and instead sued them. After litigating the fee claim for 17 months, the City sought to compel arbitration on the basis of facts that pre-dated the the lawsuit. The trial court denied the City's motion. The Court of Appeal affirmed, accepting GMSR's arguments that the City had waived whatever right it might have had to arbitrate.
Court of Appeal upholds trial court's power to grant motion to compel discovery despite pre-hearing service of discovery responses
March 8, 2007
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 2007 Cal. App. LEXIS 318 (Second District, Division 5 (Los Angeles)) [partially published]. In a first-impression case, Bob Olson secured an affirmance of the trial court's order compelling discovery responses. The Court held that that a party's untimely discovery responses do not bar the trial court from granting a motion to compel responses, and that if the responding party fails to comply with that order, the propounding party may move for sanctions without a “meet and confer” and without a 45-day deadline.
Court reverses post-appeal disqualification of trial judge
April 18, 2006
Kanode v. Farmers Insurance Exchange (2006) 2006 Cal.App. Unpub. LEXIS 3178 (California Court of Appeal, Fourth District, Division Three (Santa Ana)) [unpublished]. Cindy Tobisman and Bob Olson scored a quick writ victory here. After GMSR had obtained an affirmance on appeal of a trial court's judgment notwithstanding the verdict order on one cause of action and new trial order on another, opposing counsel filed a Code of Civil Procedure section 170.6 challenge to the trial judge, which the Orange County Superior Court accepted. Under a short deadline, Cindy and Bob prepared and filed a writ petition. The Court of Appeal issued an alternative writ. The trial court complied with the alternative writ.
Kanode v. Farmers Insurance Exchange (2006) 2006 Cal.App. Unpub. LEXIS 3178