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Case of The Day-
March 6, 2004 - March 11, 2004

 March 6, 2004

* Plaintiffs here failed to carry their burden of establishing the prerequisites for a certifiable class under -Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287.)
This case has a good analysis of  nonrestitutionary disgorgement and requirements necessary  for class action certification. Class action as to nuisance denied because of variations in proof of whether any harm occurred. It also lays out the standard of review  for the denial of certification to an entire class. Frieman v. San Rafael Rock Quarry 2/24/04 A101294CA 1/1*

 March 7, 2004

Contract-Precondition-Tort--Danger of not cooperating with insurance carrier--The insurance policy CalFarm issued to Brizuela included a provision allowing CalFarm to “examine any insured under oath” in the event of a claim . Brizuela failed to cooperate.  Brizuela sued CalFarm for (1) breach of contract and for (2) tortious bad faith breach of an insurance contract.  CalFarm filed a motion for summary judgment. The trial court granted the motion on the grounds that Brizuela’s attendance at an examination under oath requested by CalFarm was a condition precedent to obtaining benefits under the policy; that Brizuela had the burden of satisfying a condition precedent to the insurance contract before attempting to sue on the contract; that Brizuela was obligated to attend the examination under oath CalFarm had scheduled ; and that Brizuela’s failure to attend the examination precluded action on the contract.  The trial court ruled that Brizuela had no valid contract claim against CalFarm and that absent a valid contract claim, Brizuela could not maintain a bad faith claim against CalFarm. Summary judgment affirmed ** Brizuela v. Calfarm Ins. 3/3/04 CA2/5 B160875

 March 9, 2004

Discovery Rule does not apply to a mass publication case*Plaintiffs’ sixth-grade yearbook photographs had been “morphed”—altered by computer—into characters that were incorporated as fictional, cartoon-like characters in a series of vignettes broadcast in Saturday morning children’s programming on ABC television.  “Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the ‘first general distribution of the publication to the public.’  [Citations.] . . .  Under this rule, the cause of action accrues and the period of limitations commences, regardless of when the plaintiff secured a copy or became aware of the publication. ”  (Shively v. Bozanich, 31 Cal.4th at pp. 1245-1246.)  The trial court granted defendants’ motion for summary adjudication on the ground that plaintiffs’ causes of action for the violation of the right of publicity, appropriation of likenesses, and intentional infliction of emotional distress were time-barred. (Emphasis added) Summary Judgment affirmed ** Long v. Walt Disney Co.B164750 3/9/04 CA2/7

 March 10, 2004
 

Contract-Tort-Bad Faith-Civil-Procedure--[Great analysis of insurance policy and how it is interpreted. Many principles of law analyzed.]*The trial court erred in concluding, as a matter of law, that there was no coverage under Allstate’s policy for the loss sustained by Jordan.  While the “additional coverage” collapse exception may provide a basis for coverage under Allstate’s policy in spite of the “wet or dry rot” exclusion, unresolved questions of fact remain as to whether Jordan is actually entitled to such coverage.  The trial court neither addressed nor resolved those underlying factual questions.  We will therefore reverse [summary judgment] and remand to give the trial court an opportunity to decide these matters. [Whether structure "collapsed" within the terms of the policy exclusions is a question of fact.--
Jordan v. Allstate Ins. 3/18/04 CA2/3B164112 -**

 March 11, 2004
 

Probate-Living Trust-Creditors- A must read if you prepare trusts, if you are trustor or beneficiary-clears up many creditors issues- Pursuant to Probate Code section 19001,[1] the assets in a revocable living trust of a deceased settlor are subject to the claims of the creditors of his or her probate estate to the extent the estate itself is inadequate to satisfy those claims.  In light of this potential liability, does the trustee of such a trust have a duty, following the death of the settlor, to preserve trust assets for the benefit of creditors with claims pending against the deceased settlor’s probate estate? [Court concludes there is no duty.] We hold the trustee’s only duty to such creditors is to refrain from affirmative misconduct that defeats the creditors’ reasonable expectation for a recovery from trust assets.    Arluk etc. v. Dobler 3/22/04 CA2/7B162954  *

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