April 25, 2011
The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 20, 2011. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, (3) the Court has ordered depublished an opinion of the Court of Appeal, or (4) the Court has denied a Court of Appeal’s publication request. This week, we note that for the third time in the last month the Court has granted review of a decision of the Fresno-based Fifth Appellate District.
Riverisland Cold Storage v. Fresno Madera Production Credit Association, S190581 —Review Granted—April 20, 2011.
The question presented is whether the fraud exception to the parol evidence rule permits evidence of a contemporaneous factual misrepresentation as to the terms contained in a written agreement at the time of execution, or is such evidence inadmissible as “a promise directly at variance with the promise of the writing.”
The Court of Appeal, Fifth District, held in a published decision, Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2011) 191 Cal.App.4th 611, that the fraud exception does apply where the party seeking admission of the parol evidence has alleged that the other party misrepresented the content of the written contract and thereby induced execution of the contract.
Villa Vicenza Homeowners v. Nobel Court Development, S190805–Review Granted and Held—April 20, 2011.
This is an action by condominium owners against the condominium developer, alleging defects in common areas and lack of sufficient reserve fund to repair the defects. The developer sought to compel arbitration under the covenants, conditions and restrictions (CC&R’s). The trial court denied the motion.
The Court of Appeal, Fourth District, Division One, affirmed in a published decision, Villa Vicenza Homeowners Assn. v. Nobel Court Development, LLC (2011) 191 Cal.App.4th 963. The Supreme Court granted and held, ordering briefing deferred pending its decision in Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC, S186149, which presents the following issues: (1) Is a homeowners association bound by an arbitration provision contained in the covenants, conditions and restrictions for a common interest development that were executed and recorded prior to the time the association came into existence? (2) Did the Court of Appeal err by applying the state law doctrine of unconscionability only to the arbitration provision, and not to other provisions in the covenants, conditions and restrictions, in light of federal law prohibiting the application of state law to treat arbitration provisions differently from other provisions of the same agreement? (See Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265.)
Review Denied (with dissenting justices)
In re E.P., B224049, Review Denied [Kennard, J., voting for review]—April 20, 2011.
A father challenged the juvenile court’s jurisdictional and dispositional orders removing his daughter and stepson from his custody and finding that they were dependents of the court. He argued that substantial evidence of his purported sexual abuse of his 14-year-old stepdaughter was insufficient to support the juvenile court’s assertion of jurisdiction over his 12-year-old stepson and infant daughter.
The Court of Appeal, Second District, Division Eight, affirmed the juvenile court’s rulings in an unpublished decision, In re E.P. (2011) 2011 WL 38032. Justice Madeleine Flier concurred in the majority’s opinion with regard to the juvenile court’s rulings as to the 14-year-old stepdaughter, but dissented with regard to the stepson and infant daughter because “there was no evidence [the children] were at risk of sex abuse as defined by the relevant statutes.”
Court of Appeal Publication Request Denied