The Federal Food, Drug, and Cosmetic Act preempted plaintiff's claim that defendant's label on "I Can't Believe It's Not Butter! Spray" misleadingly listed 0 calories and 0 grams of fat by using artificially small serving sizes. The FDA sets serving sizes for labeling purposes by type of food product. The Butter! Spray was a "spray" not "butter." And the label… Read More
Husband's divorce attorney violated the federal Wiretapping Statute (18 USC 2511) when he filed transcripts of conversations between wife and her child which husband had surreptitiously taped on a recorder hidden in the child's backpack. Husband couldn't vicariously consent on the child's behalf to recording the conversations since the child was not in husband's custody at the time of the… Read More
Under CCP 36(a), a person who is over 70 and who proves that he or she has a substantial interest in the case, and that his or her health is such that preference is needed to avoid prejudicing his or her interest in the litigation, is entitled to have trial of the case set within 120 days after the motion… Read More
Following Merck & Co., Inc. v. Reynolds (2010) 130 S.Ct. 1784, this decision holds that the statute of limitations does not begin to run on a securities claim under 28 USC 1658 until the plaintiff can plead each of its elements with sufficient detail and particularity to survive a motion to dismiss for failure to state a claim. Defendants’ allegedly… Read More
A taxpayer has standing to sue under CCP 526a to challenge a government program on the ground it is unconstitutional either on its face or as applied, at least if the as-applied challenge is broadly based, not confined to an aberrant application to one individual or a small group. The taxpayer may bring the suit without having to identify any… Read More
The probate exception to federal court jurisdiction applies only to cases in which the federal courts would be called on to “(1) probate or annul a will, (2) administer a decedent’s estate, or (3) assume in rem jurisdiction over property that is in the custody of the probate court.” Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1252… Read More
In a case involving mixed legal and equitable claims, it is usual to try the equitable claims first to the court. The court's findings on those equitable claims are binding on the jury when it decides the legal claims even if the court's findings are not necessary to its judgment on the equitable claims. Read More
Plaintiff suffers from PTSD. He sought to have his wife present at his deposition as an accommodation because she calms him alleviating some PTSD symptoms. Defendants opposed arguing that the wife was a percipient witness to the medical procedures that were the subject matter of the suit and allowing her to sit in on her husband's deposition would allow her… Read More
The no voluntary payment clause in plaintiffs' insurance policies barred its recovery for costs it incurred in complying with a settlement agreement and consent order with the government to remediate mercury contamination of water supplies. Plaintiff had notified defendant of its receiving a notice of the federal government's claim for natural resources damages from the contamination, but then failed to… Read More
This case denies American Pipe tolling of the statute of limitations on claims for statutory penalties under the Investigative Consumer Reporting Agencies Act (Civ. Code 1786.50). The act clearly states that statutory penalties cannot be recovered in a class action, so that affected consumers could not reasonably rely on the pendency of a prior class action to protect their right… Read More
Most time deadline statutes and rules are now construed as non-jurisdictional unless Congress has clearly stated otherwise. The 12-year statute of limitations on quiet title actions against the United States (28 U.S.C. §2409a(g)) is a claims processing rule, not a jurisdictional statute. The time limit appears in a section separate from the Quiet Title Act's jurisdictional provision and does not… Read More
Appeal of an order interpreting a nonprofit corporation's by-laws governing annual election of its directors was not moot though several elections occurred after the suit was filed because the judgment had a continuing effect on the corporation's elections and was subject to repetition but evading review. Read More
A 2018 amendment to CCP 340.1 further relaxed the statute of limitations on childhood sexual assault claims, but it removed the words "on the merits" from the portion of the statute that used to state that it did not apply to any claim that had been litigated to finality on the merits before 2003. The deletion of that language was… Read More
Under CCP 904.1(a)(12), a monetary sanctions award of $5,000 or more is immediately appealable. However, an order for an issue sanction on a discovery motion is not immediately appealable. Even when the order awards both monetary and issue sanctions, the issue sanctions portion of the order is not appealable unless the two sanctions are intimately intertwined. (See Mileikowsky v. Tenet… Read More
This decision affirms a summary judgment on plaintiff's antitrust claim against a competing fast fashion retailer which had refused to buy from clothing vendors unless they quit selling to plaintiff. Plaintiff failed to present evidence of a horizontal agreement among the clothing vendors to not sell to plaintiff. A vertical agreement between defendant and each vendor was not a per… Read More
This decision affirms an order disqualifying plaintiff's attorney in a case arising from a dispute among the three principals of a closely held corporation. Plaintiff sued the other two principals as one of those defendants' wives. Using the corporation's computers, plaintiff accessed emails the wife sent her husband over the corporation's email server. The decision holds that the trial court… Read More
Although the FAA (9 USC 3) appears to require a district court to stay pending court proceedings when it compels arbitration, binding 9th Circuit precedent holds that, instead, a district court may dismiss the litigation if it compels arbitration of all claims raised in the case. See Johnmohammadi v. Bloomingdale’s,Inc., 755 F.3d 1072, 1074 (9th Cir. 2014). The two-judge concurrence… Read More
Judge B1 presided over a trial. Judge B2 let her know that B2 used to practice with the plaintiff's law firm, he sat in the jury box during jury selection until B1 asked him to leave, and after the plaintiff obtained a large verdict, he sent B1 a celebratory, emoji-filled email which B1 promptly revealed to the parties and asked… Read More
Reaching the same result as Galarsa v. Dolgen California, LLC (2023) 2023 Cal. App. LEXIS 129, this decision holds that plaintiff's individual PAGA claims (i.e., those which are based on Lab. Code violations affecting the plaintiff) must be arbitrated. However, representative PAGA claims based on Lab. Code violations affecting only employees other than the plaintiff are not subject to arbitration,… Read More
Summary judgment for defendant employer was reversed in this disability discrimination in employment case. Defendant tentatively decided to lay plaintiff off before she became disabled, but didn't follow through with that decision until after plaintiff suffered a disabling injury. Plaintiff produced sufficient evidence to raise a triable issue of fact as to whether defendant's concern with plaintiff's disability led to… Read More
