The trial court did not abuse its discretion in bifurcating and trying first plaintiff's UCL claim even though the claim was based on an alleged FDCPA violation and defendant was entitled to a jury trial of the FDCPA claim. The UCL claim is equitable. Equitable first is the rule in California. Also, that procedure serves the UCL's purpose of affording… Read More
Affirming a summary judgment, this opinion finds that the city was immune from liability under Gov. Code 831.4 on plaintiff's claim that he tripped over a wire cable hanging between two posts on either side of the entrance to a path down to a lake, designed to keep vehicles from using the path. The path was used for the recreational… Read More
Under the Dodd-Frank Act, 12 U. S. C.§ 25b(b)(1)(B), the National Bank Act preempts state law, as applied to a national bank, only if (a) the state law discriminates in favor of state banks and against national banks, or (b) “prevents or significantly interferes with the exercise by the national bank of its powers,” the standard articulated in Barnett Bank… Read More
Although the interplay between CCP 664.6's two sentences is not entirely clear, this decision holds that if a settlement is entered into before the court and a motion to enforce the settlement is brought while the action is still pending, the court retains jurisdiction to rule on the motion to enforce the settlement even if the parties have not agreed… Read More
The trial court abused its discretion in denying ex-wife's application to renew a DVRO injunction against ex-husband without properly evaluating the three factors set out in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275: The factual predicate for the original DVRO. Any significant change in circumstances that occurred after the DVRO was issued. Whether, and how much, the DVRO burdens the… Read More
Describing but not resolving several areas of ambiguity and conflicting authority in applying H&S Code 1799.110, this decision holds instead that a nurse anesthetist and trauma unit nurse lacked the specialized knowledge required to opine on the standard of care applicable to an intensive care unit neurosurgeon deciding whether a severe traumatic brain injury requires immediate surgical intervention, whether that… Read More
This decision affirms an order denying enforcement of the arbitration clause in USC's employment contract on the ground that it is unconscionable in applying to any dispute (whether or not arising from the employment relationship), in being of perpetual duration (providing that it continued in effect after termination of employment unless both parties agreed otherwise), and lacking mutuality in requiring… Read More
Although a stipulated judgment is generally not appealable, appeal is allowed when “consent was merely given to facilitate an appeal following adverse determination of a critical issue.” An “adverse determination” of “a critical issue” is not an affirmative requirement or limitation on the doctrine. The only limitation is that the judgment must dispose of all causes of action. The stipulated… Read More
That a corporation's person most qualified attests to the documents does not mean that they are therefore automatically admissible under the business records exception to the hearsay rule. To invoke that exception, a witness must testify from personal knowledge as to the mode of preparation of the documents, among other things. That the person is most qualified to respond to… Read More
The trial court properly sustained a demurrer to this employee's FEHA claims against the district for failure to comply with the Government Claims Act. Even if substantial compliance were allowed, the alleged facts showed no substantial compliance. Plaintiff's complaints were filed with the wrong entities and did not state the facts needed in a proper government claim. A second claim… Read More
5 U. S. C. §7703(b)(1) states that a person may appeal to the Court of Appeal from the Merit Systems Protections Board's decision, if the appeal is taken within 60 days if that decision. This opinion holds that though mandatory, the 60-day time limit is not jurisdictional. Apart from appeal times from district court to appellate courts, time limits are… Read More
Assuming without deciding that the discovery rule applies to extend the otherwise applicable 3-year statute of limitations on copyright infringement claims, this opinion hold that a plaintiff's damages are not limited to those suffered in the three years before suit was filed. The statute of limitations bars untimely suit. It does not govern damage recovery. The Copyright Act's remedial provisions… Read More
A plaintiff insured waives the attorney-client privilege as to fee agreements, time sheets and the like by suing the insurer for bad faith and claiming Brandt fees as damages. A trial court may, but is not required to, bifurcate trial, leaving Brandt fees for a separate phase after the jury has determined liability for bad faith and allowing discovery of… Read More
A lawyer who serves discovery responses that are abuses of discovery because they contain only meritless objections rather than substantive responses to written discovery may be liable for monetary discovery sanctions even though he is no longer counsel of record for the answering party when the sanctions motion is filed. This attorney didn't help his cause any by his incivility… Read More
Summary judgment on plaintiff's discrimination in employment claims was properly granted because he failed to exhaust his administrative remedies with the FEHA and EEOC. His administrative complaint mentioned entirely different grounds (sex and whistleblower retaliation by his supervisor) than his court complaint (sexual harassment, race, immigration status and retaliation by coworkers). Employees satisfy the administrative exhaustion requirement if their court… Read More
Defendant fired plaintiff wrongfully in 2018 thereby disentitling plaintiff to stock options he would otherwise have held in 2020 when defendant went public with an IPO, guaranteeing a profit on exercise of the stock options. This decision holds that plaintiff's breach of contract damages need not be measured as of the date of breach (2018) but may properly be measured… Read More
The forum defendant rule under 28 USC 1441(b)(2) is a procedural, not a substantive bar to removal jurisdiction and so must be raised by a remand motion brought within 30 days of the filing of the removal notice or it is waived. Here, the remand motion was filed on the 31st day after the removal petition. Nevertheless, it was timely… Read More
Plaintiff, a guest in defendant's hotel, fell and hurt herself when the handheld shower head came apart in her hand. This decision affirms a summary judgment for defendant because (a) plaintiff failed to raise a triable issue of fact as to whether defendant had actually knew or had reason to suspect that the shower head was defective or dangerous and… Read More
On appeal, we will not presume from a silent record that a trial court meant to sustain evidentiary objections when it did not expressly so rule. Nor will we undertake the duty to rule on evidentiary objections in the first instance on appeal. Objections not expressly ruled upon are deemed overruled where they go to material issues of fact. While… Read More
A two-page settlement term sheet signed by the clients at the end of a mediation session was a binding agreement even though it contemplated that the parties would thereafter enter into a formal settlement agreement and a separate stipulation for entry of judgment. The term sheet's invoking CCP 664.6 was a sign it was intended to be a binding contract. … Read More
