Civil Procedure

Statistical evidence is admissible to establish predominance under FRCivP 23(b)(3) if that evidence would be admissible in an individual action on the same claim, the statistical evidence is linked to the plaintiffs' theory of liability and the use of averaging assumptions does not conceal the variations that otherwise would defeat class certification.  Here, plaintiffs' statistical evidence satisfied those three tests. … Read More

Following Charnay v. Cobert (2006) 145 Cal.App.4th 170 and E-Pass Technologies, Inc. v. Moses & Singer, LLP (2010) 189 Cal.App.4th 1140, this decision reverses a summary judgment for the defendant attorneys in this malpractice action based on the allegation that the attorneys failed to warn plaintiff of the disadvantages of bringing the underlying suit in California where the defendant could… Read More

Cal. Const., art. I, sec. 28(b)(5) grants crime victims the right to “refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.”  This decision holds that this provision which was… Read More

This decision reverses a summary judgment for defendant on plaintiffs Americans with Disabilities Act claim.  The summary judgment was granted on the ground that the defendant had fewer than 15 employees, the minimum threshold for application of the ADA.  However, the decision holds that there was a triable issue of fact whether the defendant, a Nevada law limited partnership, was… Read More

Mendoza was president of a local union.  The international ATU imposed a trusteeship on that local union ousting Mendoza and the local union's executive board members having discovered suspected financial malfeasance.  Mendoza filed an action against the ATU on his own behalf.  The ATU removed it to federal court, claiming NRLA preemption.  While the first suit was pending Mendoza filed… Read More

The Airline Deregulation Act of 1978 (49 USC 41713) preempted plaintiff's tort claims arising from defendant's decision not to use plaintiff's software that offered certain in flight deals to airline passengers.  Refusing to follow the Ninth Circuit's minority view (Charas v. Trans World Airlines, Inc. (9th Cir. 1998) 160 F.3d 1259), this decision holds that in flight deals are part… Read More

Following Delaney v. Baker (1999) 20 Cal.4th 23, this decision holds that MICRA's one-year limitations on medical malpractice claims and $250,000 limit on non-economic damages did not apply to this elderly woman who was sexually assaulted by the defendant elder care facility's male attendant, based on a jury's finding that the defendant was not only guilty not only of general… Read More

In Vaden v. Discover Bank (2009) 129 S.Ct. 1262, the Court held that under 9 USC 4, to determine whether a federal court has jurisdiction over a petition to compel arbitration, the court should "look through" the arbitration issue and determine whether the court would have jurisdiction of the underlying dispute in the absence of an arbitration agreement.  This decision… Read More

The trial court did not abuse its discretion in ordering a new trial in this case where the writers for the series Columbo sued the studio that produced those shows.  The trial court correctly concluded--only after the jury ruled--that it was for the court to interpret the contract between the parties and that the crucial term "photoplay" included each TV… Read More

The trial court did not abuse its discretion in finding that neither party prevailed or was entitled to an attorney fee award under the Davis-Stirling Act (Civ. Code 5975(e)) or the private attorney general statute (CCP 1021.5) in this suit by a condo owner against the condo association.  Although plaintiff obtained a preliminary injunction and prevailed in forcing the condo… Read More

The trial court did not abuse its discretion in not denying defendant's summary judgment motion for alleged defects in its separate statement of undisputed facts.  Though a trial court may deny a summary judgment motion on that ground, it is not compelled to do so.  Here, the alleged defect was stating several facts together in a single "undisputed fact" and… Read More

Appeals from probate orders did not automatically stay the parties' ability to settle their dispute.  Even though their settlement required dismissal of the pending appeals, the settlement was effective and did not violate the automatic stay on appeal under CCP 916. Read More

A summary judgment in favor of defendant in this whistleblower action is reversed because the defendant brought the motion using the McDonnell Douglas test rather than the statutory test under Lab. Code 1102.6, as explicated in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703.  The decision also holds that the same Lawson test applies under Gov. Code 8547.10,… Read More

While this petition for mandamus and suit for injunctive relief was pending, the Legislature amended Gov. Code 54237.9 to require the Department of Transportation to sell homes it has bought to make way for freeways at the original purchase price without adjustment for inflation.  Since this suit sought only prospective relief--sale of the homes at the original purchase price without… Read More

This case holds that consumers may recover uncapped attorney fees against holders under the FTC Holder Rule.  Though the attorney fees are part of the "recovery" that the Holder Rule itself caps, the FTC Holder Rule does not preempt any state laws, but merely prescribes a required contract clause.  So, Civil Code 1459.5 is not preempted and it allows full… Read More

A dredge company's application to the Coast Guard for a coastwise shipping permit was protected speech under CCP 425.16.  Plaintiff had no probability of succeeding on its UCL claim based on the allegedly fraudulent application for the coastwise permit because the Coast Guard exercises exclusive jurisdiction over the issuance of those permits, preempting state law claims arising from the issuance… Read More

The automatic stay on appeal prevents the trial court from entering a voluntary dismissal of the action while the case is on appeal from an interlocutory order (such as here, an order denying an Anti-SLAPP motion) because dismissal of the case would affect the Court of Appeal's jurisdiction over the appeal.  Furthermore, even if it were otherwise effective, a voluntary… Read More

Employee's claims against his employer for promising a pay raise to all employees if they voted against a union--and then not following through and retaliating against employee when he protested--was preempted by the NLRA as all of the claims alleged conduct that was actually or arguably protected or prohibited under the NLRA. Read More

When the plaintiff files an amended complaint that omits a defendant named in the prior complaint, the amendment is treated as a voluntary dismissal of the omitted defendant, without prejudice.  Here, plaintiff's third amended complaint named Minassian as a defendant.  The parties stipulated to the filing of plaintiff's fourth amended complaint which omitted Minassian.  Though the trial court didn't sign… Read More

In this action under 42 USC 1983, B&G alleged that Embry violated B&G's free speech rights by suing it under California's Prop. 65 for failing to include on its packaging the Prop. 65 warning that B&G's cookies contained acrylamide, a chemical supposedly known to California to cause cancer.  The decision holds that in seeking to enjoin Embry from suing B&G,… Read More