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
This decision affirms a preliminary injunction issued against the California Attorney General and private parties preventing them from filing suit under Prop. 65 to require food manufacturers to give the standard Prop. 65 warning about acrylamide being a chemical supposedly "known" to cause cancer. Under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the compelled speech (the required… Read More
Under the CLRA (Civ. Code 1792(b), no "action for damages" may be brought against a defendant that offers appropriate correction within 30 days of receiving the plaintiff's notice of violation of the statute. This decision holds that "action for damages" includes--and the subsection therefore bars--any claim for compensatory damages or for restitution under the CLRA. The decision also holds that… Read More
The trial court made four errors in granting Amazon judgment in this Prop. 65 action against it based on its listing (and sale) of 11 skin whiting products that contained mercury. First, it improperly found that tests of individual samples of the products didn't prove that all of the product contained mercury. The test results showed mercury levels so high… Read More
An order unconditionally granting or denying a motion for relief from the automatic stay in bankruptcy is final and appealable. The 14-day window for filing an appeal from the order opens when the order is filed. Stay relief is a proceeding separate from, and precedes, claim resolution. Read More
A musician's use of an eight note sequence at a steady rhythm involved only common musical elements and was not copyrightable. Hence, the district court correctly granted JMOL against the musician's claim that the defendant infringed his copyright by copying the first six of his eight note repeated musical figure in her song. Read More
A severely retarded resident of a care facility sued it for damages suffered in a sexual assault by a handyman on the facility's premises. The decision holds that the trial court abused its discretion in excluding portions of a police report which the plaintiff relied on in opposition to the facility's summary judgment motion. The police report was excepted from… Read More
An "order" that dismisses or denies a petition for a writ of administrative mandamus is a final, appealable judgment if it leaves nothing to be resolved other than compliance with the order--even though the order is labeled "order," not "judgment." The deadline for appealing the decision runs from service of notice of entry of such an order, not from the… Read More
Unlike disqualification under CCP 170.1 or 170.3, peremptory disqualification under CCP 170.6 does not void orders that the disqualified judge entered before the 170.6 affidavit was filed. Read More
The trial court instructed the jury to award plaintiff defendant's profits from the false advertising the jury found only if it found that the defendant acted wilfully. This instruction was contrary to the Supreme Court's later holding in Romag Fasteners, Inc. v. Fossil Group, Inc. (2020) 140 S.Ct. 1492. So the jury verdict was reversed and remanded. However, disgorgement of… Read More
Plaintiffs alleging parallel conduct among competitors as a Sherman Act section 1 conspiracy must allege additional facts (plus factors) that place that parallel conduct in a context suggesting a preceding agreement. Here, only one of the eight plus factors plaintiffs alleged weighed slightly in favor of conspiracy, which was insufficient to cross the threshold from possible to plausible. The three… Read More
Largely affirming Walgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543, this decision holds that, in general, testimony given in a discovery deposition in a prior case cannot be introduced at trial under Evid. Code 1291(a)(2) in another against a party present at the deposition because the motives and interest of a party at a deposition generally is dissimilar from… Read More
Under Prob. Code 1003, a court may, but is not required to, appoint a guardian ad litem for minors named as parties in the action. If the court doesn't appoint a guardian, it must itself protect the minor's interests. Here, a guardian ad litem was appointed for the minors in related litigation, but not in this proceeding. The guardian ad… Read More
