August 30, 2012

Summary of August 29, 2012 conference report for civil cases

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, August 29, 2012. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Marriage of Green, S203561—Review Granted—August 29, 2012.

The question presented is whether the military service credit portion of a spouse’s California Public Employees’ Retirement System (CalPERS) pension is separate or community property. The Court of Appeal, First District, Division Four, held in a published decision, In re Marriage of Green, 205 Cal.App.4th 1475, that credit purchased during marriage was community property, and remanded the case to the trial court to consider allocation.

Review Denied (with dissenting justices)

Chakalis v. Elevator Solutions, S203632—Review Denied with Justice Kennard Dissenting—August 29, 2012

The question presented was, where a defendant contends in a personal injury action that a non-party physician caused part or all of the plaintiff’s injuries, whether the trier of fact can find the treating physician comparatively at fault without evidence that the physician’s medical malpractice caused the plaintiff’s injuries.

The Court of Appeal, Second District, Division Three, held in a published opinion, Chakalis v. Elevator Solutions, Inc., 205 Cal.App.4th 1557, that the trier of fact cannot make such a finding. To prevail on a defense of comparative negligence by a non-party physician, the defendant must prove each element of a claim for medical malpractice. The court held that expert testimony was required to show the physician’s breach of the standard of care caused the plaintiff’s injuries. The court also held that, where the plaintiff prevented defendants from proving that the physician failed to meet the standard of care, the plaintiff was estopped under the doctrine of invited error from arguing that there was insufficient evidence that the physician breached the standard of care.


Barker v. Hennessy Industries, S204106—Depublished Court of Appeal Opinion—August 29, 2012

The trial court granted summary judgment in favor of the defendant machine manufacturer in an asbestos-related wrongful death action. The court based its ruling on evidence that the harm to the plaintiff, a mechanic, was caused by products containing asbestos and not by the defendant’s machines. The Court of Appeal, Second District, Division Two, affirmed in a published decision, Barker v. Hennessy Industries, Inc., 206 Cal.App.4th 140. It held the defendant manufacturer owed the plaintiff no duty to warn about the dangers arising from asbestos-containing products used with its machines, and likewise owed no duty to prevent the resulting asbestos-related harm.

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