Civil Procedure

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

Petrella v. Metro-Goldwin-Mayer, Inc. (2014) 134 S.Ct. 1962 did not abrogate the rule that the 3-year statute of limitations for copyright infringement in modified by the discovery to allow suit within 3 years of the date when the plaintiff first knew or reasonably should have known of the infringement. Read More

A judgment is not one "on the merits" entitled to claim or issue preclusive effect if the appeal from the judgment is dismissed solely on the ground that the appeal is moot due to post-judgment events--such as, in this case, completion of the development project that allegedly violated zoning of CEQA requirements.  See also Coalition for a Sustainable Future in… Read More

Plaintiff, a jewelry store, stated a viable breach of contract action against Sotheby's.  Plaintiff owned $4 million in diamonds which it had obtained from Rechnitz as security for his debt.  Plaintiff and Rechnitz met with a Sotheby's agent, giving him the diamonds to have appraised for possible auction at Sotheby's.  Sotheby's form contract referred to only a single consignor, but… Read More

Plaintiff sued insurer #1, claiming it owed a duty to defend him against a suit by a conservation land trust that he had violated the trust's conservation easement over his land by various development activities he undertook on the property.  That suit resulted in a judgment for the insurer, affirmed on appeal, denying coverage on the ground that the suit… Read More

Plaintiff leased a commercial property from defendant.  The lease gave plaintiff an option to buy the property at its fair market value.  Plaintiff exercised the option but the parties disagreed about the fair market value.  After much litigation, the trial court set the price and ordered the parties to perform, but before they could  do so, the Department of Transportation… Read More

On remand after reversal of an order dismissing the complaint (Sicre De Fontbrune v. Wolfsy (9th Cir. 2016) 838 F.3d 992), this decision reverses a summary judgment in defendant's favor refusing to enforce a French judgment for "astreinte" damages for using photos of Picasso paintings infringing plaintiff's copyright in the photos.  The French judgment that plaintiff sought to enforce was… Read More

In international diversity cases, enforceability of judgments of courts of other countries is generally governed by the law of the state in which enforcement is sought. Read More

Plaintiff lacked Article III standing to challenge the FTC's opinion letter which took the position that use of soundboard technology on collection calls involved use of prerecorded messages that violated the FTC Telemarketing Sales Rule.  The complaint did not allege that plaintiff had any concrete plans to violate the FTC's new interpretation of its Telemarketing Sales Rule. Read More