The trial court correctly denied defendants' Anti-SLAPP motion to strike plaintiff's claims under the UCL and CLRA based on defendants' allegedly false statements in releases or other statements and advertisements that Michael Jackson was the lead artist on all tracks in a posthumous CD. Even if the defendants' statements were protected speech under CCP 425.16(e), plaintiff showed a probability of… Read More
The district court erred in granting defendant summary judgment in this False Claims Act case. A genuine issue of triable fact existed as to whether defendant's use of the "KX" modifier in its Medicare reimbursement claims was material. The modifier indicated compliance with local coverage determinations. That certification was false, and it would be material if the trier of fact… Read More
Following Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, this decision enforces the parties' settlement agreement which permitted plaintiff to enter judgment against defendant for $251,000 if defendant failed to pay any of 24 monthly instalments of $1,250 (for a total of $30,000). The $251,000 judgment was not an unenforceable penalty because defendant admitted plaintiff… Read More
Reversing a summary judgment in defendant's favor, this decision holds that defendant cannot claim a fair use defense to plaintiff's suit for infringement of its copyright on photos of an ephemeral lake in the Death Valley desert. All four fair use factors weighed against defendant. Defendant used the pictures for a commercial purpose--to profit from its article that included the… Read More
Same deferential standard of review applies whether evidence presented to trial court is live testimony or written affidavits and exhibits. Read More
The trial court did not abuse its discretion in denying private attorney general fees to Malibu homeowners who successfully challenged a proposed special assessment to protect a beach and nearby homes from erosion. The trial court correctly estimated the homeowners' potential benefit from the suit as the amount of assessments they sought to avoid over the 20-year period of the… Read More
Under 9 USC 201 et seq. governing foreign arbitrations, federal courts have subject matter jurisdiction to enforce arbitrator-issued subpoenas served on US residents. The subpoena enforcement action may be filed in any district court where venue is proper under 28 USC 1391, the general venue statute, or 9 USC 204, which allows--but does not require--suit in the district in which… Read More
The district court abused its discretion in excluding testimony from defendant's sole trial witness and in imposing monetary sanctions for defendants' purported failure to properly identify the areas of testimony of the witness--who had been identified in the defendant's initial disclosures. Even if the initial disclosures showed only that the witness would testify about the underlying lawsuit for which the… Read More
The trial court in San Francisco abused its discretion in denying defendant's motion to transfer this wrongful death case to San Diego where the accident occurred and most witnesses reside. The fact that the Legislature authorized remote trial testimony through July 2023 is not a favor that the trial court could properly invoke to ignore the fact that most witnesses… Read More
Summary judgment was properly entered for the defendant in this slip and fall accident on a public sidewalk. The trivial defect doctrine applied to shield the city from liability. The discontinuity between slabs of sidewalk paving over which plaintiff tripped was at most 3/4ths of an inch. There were no other factors adding to the dangerousness of that condition. Plaintiff… Read More
CCP 575.2 authorizes superior courts to impose sanctions for violation of local rules promulgated under CCP 575.1. This decision holds that a court may impose sanctions under 575.2 for violation of rules governing submission of documents in preparation for trial (such as in limine motions and jury instructions) as well as for violation of pretrial rules. It also holds that… Read More
(Under CCP 128.5 and 128.7, a party moving for sanctions must serve the opposing party with the motions a full 21 days before filing the sanctions motion in court. A sanctions motion filed on the 21st day after service does not comply. A full 21 days must be afforded the opposing party to correct its sanctionable conduct, so the earliest… Read More
Under Fed. R. Civ. P. 4(k)(2), a plaintiff may establish personal jurisdiction over a foreign defendant by (a) alleging a federal law claim against the defendant, (b) showing that the defendant is not subject to personal jurisdiction in any state, and (c) showing that exercise of jurisdiction over the defendant is consistent with due process, considering the defendant's contacts with… Read More
A PAGA claim is not the same cause of action as an employee's individual claim for damages for an employer's violation of wage and hour laws. Also, the parties to the two suits are different. Though the same employee brings both, the real party in interest in the PAGA suit is the State of California. Accordingly, an employee may bring… Read More
Agreeing with Switzer v. Wood (2019) 35 Cal.App.5th 116, this decision holds that Penal Code 496(c) authorizes an award of treble damages and attorney fees whenever the plaintiff proves any type of theft—whether it be fraud, misrepresentation, conversion, or breach of fiduciary duty—by which the defendant obtains money or property. Read More
A defaulted defendant (or in this case, one against whom terminating discovery sanctions had been entered) may, nevertheless, move for a new trial on the ground that the court made an “error in law” in calculating damages. Even a defaulting defendant may appeal the resulting default judgment on the grounds that the damages award (1) “is so disproportionate to the… Read More
The trial court abused its discretion in disqualifying plaintiff's counsel from all phases of the case shortly before trial on the ground that he would be a witness at trial. The trial court erroneously failed to apply California Rule of Professional Conduct 3.7(3), which unlike the ABA rule from which it is drawn, allows an attorney to also testify with… Read More
The trial court erred in granting the defendant attorney summary judgment on statute of limitations grounds since there was a triable issue of fact as to when his representation of the plaintiff was terminated--either slightly more or slightly less than a year before the malpractice action was filed. There was no formal withdrawal until less than a year before suit. … Read More
Under IWC Wage Order no. 7, an employer must "provide" a seat to covered clerical employees, unless work requirements preclude work while seated. This decision holds that except for the most obvious cases (such as where the employer has a seat at work station) whether the employer has "provided" a seat raises a question of fact that precludes summary judgment… Read More
To obtain a right to attach order, the plaintiff must prove it is more likely than not that the plaintiff will obtain a judgment against the defendant on the claim on which it seeks an attachment, and that claim must be either a claim for money based on contract or a claim for elder abuse. (CCP 481.190, 483.010; Welf. &… Read More
