Civil Procedure

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

This decision holds that Baral v. Schnitt (2016) 1 Cal.5th 376 has fatally undermined the holding and reasoning of South Sutter LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634.  Baral holds that mixed causes of action must be examined under the Anti-SLAPP statute based on the allegations regarding protected activity rather than under the Pomeroy "cause of action"… Read More

Appellant's opening brief stricken and appeal dismissed where the brief cited two nonexistent cases (and counsel could not explain why at oral argument), misstated the facts and holdings of several other decisions, and cited only a few other authorities without explaining how they supported the appellant's contentions. Read More

An order denying a petition to change the petitioner's legal name is reviewed for abuse of discretion.  However, there is only a very narrow range of discretion allowed.  A name change must be granted unless the new name may cause confusion or is to a "fighting" word.  Here, petitioner sought to change her name to Candi Bimbo Doll, a name… Read More

A consent decree that defendant entered into with the Attorney General which prohibited defendant from charging any fee it couldn't show was to reimburse a reasonable cost defendant incurred did not moot the prayer in this UCL class action for a public injunction banning defendant from charging its  $45 processing fee for each new rent-to-own contract.  The consent decree did… Read More

This decision holds that the Court of Appeals the de novo standard of review to an order denying a nonsignatory's motion to compel arbitration by invoking equitable estoppel.  It also holds that 14 C.F.R. § 253.10 which forbids air carriers from including forum selection clauses in their contracts of carriage does not forbid an airline from relying on an arbitration… Read More

After securing a $600K judgment against Johnson, plaintiff sued him again to set aside a fraudulent transfer by which Johnson attempted to avoid execution of the judgment.  After two years of litigation on the fraudulent transfer suit, plaintiff filed a memorandum of post-judgment costs seeking to collect attorney fees and costs it expended in the second suit.  To thwart that… Read More

There are only two elements to a misappropriation of trade secrets claim:  the existence of a trade secret, and its unauthorized dissemination, disclosure or use.  It is not necessary for the plaintiff to prove it was damaged or the defendant was unjustly enriched.  Those issues are relevant only to an award of damages or restitution.  Even absent damages or enrichment,… Read More

The district court did not abuse its discretion in awarding terminating sanctions under FRCivP 37(e) against plaintiff for intentionally deleting (and getting her friends to delete) text messages about the case from their cellphones. There was substantial evidence that plaintiff acted intentionally to destroy the text messages and deprive defendant of their contents.  And lesser sanctions would not remedy that… Read More