Though recognizing a conflict between Court of Appeal decisions on the subject, this opinion sticks with Housing Group v. Superior Court (1994) 24 Cal.App.4th 549 in holding that a good faith settlement determination under CCP 877.6 may only be attacked by petition for extraordinary writ, not by appeal from the final judgment in the case. Read More
Under the out-of-pocket loss rule for fraud damages, a purchaser cannot recover the purchase price as consequential damages. However, in applying the out-of-pocket loss rule, the trier of fact is not limited to considering the market value of the product or service on the date it was purchased, but may also consider post-sale evidence that bears on its market value… Read More
Assuming that it is unconstitutional to award statutory penalties for the same wrongful conduct that is also a basis for a punitive damage award, this decision holds that the jury's award of punitive damages for fraud and statutory double damages under the Song-Beverly Act did not offend that rule. The punitive damages were for misrepresentations that induced purchase of the… Read More
Following Berroteran v. Superior Court (2022) 2021 Cal. LEXIS 8418, this decision holds that the trial court did not abuse its discretion in admitting testimony by Ford witnesses given in depositions in a class action involving defects in the same model truck as plaintiff sued on. Plaintiffs were not parties to the class action since the class was not certified… Read More
Under 46 U.S.C. 30511(c), a shipowner may sue to limit its liability for claims to the value of the vessel and any pending freight so long as the shipowner sues for that relief within 6 months after a claimant gives the shipowner written notice of a claim. To trigger that six-month limitations period, the claimant's "written notice of a claim”… Read More
California Health & Safety Code 25982 bans the sale in California of foie gras produced by force feeding geese. The law is not preempted by the federal Poultry Products Inspection Act. Even assuming that the USDA has exercised its authority under PPIA to require that foie gras be produced by fore feeding geese, California's statute does not conflict with federal… Read More
Amato violated Riverside County's local rule about filing jointly prepared pretrial statement witness and exhibit lists, and jury instructions the first day of a jury trial or before. As a result, the trial court held that Amato had waived his right to a jury trial, and after hearing his evidence, granted a motion for judgment under CCP 631.8. This decision… Read More
One union representing some of Antioch's employees brought an administrative grievance making the same claim as the retired employee plaintiff brought in this later suit--that the City was stinting them on contributions for their benefit to CalPers, This decision holds that the due process limits on collateral estoppel keep it from operating to bar the current suit based on the… Read More
Plaintiff served a notice of levy on Zions' agent for service of process, Corporation Service Company (CSC), attempting to levy on funds the judgment debtor held in two bank accounts at Zions. CSC rejected the levy because someone had underscored, by hand, the name of a corporate defendant in the caption of the notice of levy. CSC thought that was… Read More
The common law rule of exclusive concurrent jurisdiction applies to PAGA suits. Nothing in the PAGA statutes clearly or unequivocally evince an intent to abrogate that well-established rule in PAGA suits. Absence of an express first-filed suit requirement in the statute is insufficient to show such an intent. Invoking the exclusive concurrent jurisdiction rule, the trial court properly stayed this… Read More
Defendant moved for summary judgment, then made a Rule 68 offer of judgment in the amount of $50,000. Less than 14 days later, the court granted the summary judgment motion but didn't immediately enter judgment for defendant. Plaintiff accepted the Rule 68 offer. Held, the acceptance was effective. Under Rule 68, an offer of judgment remains open for 14 days. … Read More
A wrongful death claim under federal maritime law accrues on or after the date of death, not earlier when the victim (soon-to-be deceased) learns of his illness or injury. The statute accrues on date of discovery of the illness, however, on claims under survival statutes that abrogate the common law rule that tort claims died with the plaintiff. Where the… Read More
Four federal statutes bar discrimination on the basis of race, gender, disability or other protected characteristics by recipients of federal financial assistance; namely Title VI and IX of the 1964 Civil Rights Act, the Rehabilitation Act and the Affordable Care Act. None of these acts expressly grant private rights of action to victims of discrimination that violates those Acts' provisions. … Read More
Following Roes, 1-2 v. SFBSC Management, LLC (9th Cir. 2019) 944 F.3d 1035, this decision holds that when a class action settles before class certification, the district court may not apply a presumption of fairness to the settlement based on arms-length negotiation between experienced counsel. Instead, the court mus employ extra caution and more rigorous scrutiny in evaluating a pre-certification… Read More
Under the Madrid Protocol implemented in 15 USC 1141 et seq, and under 15 USC 1057, the holder of a trademark registered in a foreign country can obtain registration of the trademark in the United States as well, and obtain the benefit of a constructive use date pegged to the date of the foreign registration or application for US registration. … Read More
If a foreign sovereign entity is subject to suit under one of the exceptions to immunity otherwise conferred by the Foreign Sovereign Immunities Act, the Act does not affect the substantive law governing the entity's liability. Instead, 28 USC 1606 provides that when not entitled to immunity, "the foreign state shall be liable in the same manner and to the… Read More
If a statute prescribes a time limit within which a petition, appeal or other pleading must be filed, it will be treated as jurisdictional only if Congress clearly states that the time limit is jurisdictional. Jurisdictional time limits cannot be waived or forfeited, must be raised by courts sua sponte, and do not allow for equitable exceptions. Here, the Court… Read More
Defendant residential care facility's arbitration clause was procedurally unconscionable as (i) it was a contract of adhesion, (ii) it incorporated the AAA rules but no copy of them was provided, and (iii) the facility required a patient undergoing an acute psychotic incident, who could not concentrate for more than 10-20 seconds to sign the clause. The clause was substantively unconscionable… Read More
An apex deposition of the head of a governmental department is allowed only with the agency head is shown to have direct personal factual (as opposed to legal) knowledge of information pertinent to material issues in litigation and the agency head's information is not available through another source. Here, an apex deposition of the former district attorney was not allowed… Read More
On remand from the US Supreme Court for reconsideration in light of Van Buren v. United States (2021) 141 S.Ct. 1648, the Ninth Circuit reaffirms its holding that the district court did not abuse its discretion in entering a preliminary injunction barring LinkedIn from preventing HiQ from "scraping" data from public LinkedIn posts by threats of suit or technological blocking… Read More
