Civil Procedure

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

This decision rejects Christine Chui's argument that she should not be bound by a settlement of a suit brought against her by other children of the same deceased parents, claiming that she had committed elder abuse against the parents and had, as trustee of their inter vivos trust, misappropriated the trust's funds.  The settlement agreement was not procedurally unconscionable.  The… Read More

Corso obtained a default judgment against Rejuvi in a district court in South Australia.  Corso filed a proof of claim in Rejuvi's bankruptcy proceeding.  Rejuvi appealed from a bankruptcy court order allowing Corso's claim based on the South Australia default judgment.  Held, the claim was properly allowed.  Under California's Uniform Foreign-Country Money Judgment Recognition Act (CCP 1713 et seq.), Rejuvi… Read More

Lab Code 925 prohibits employment contracts from containing provisions requiring an employee to litigate or arbitrate a claim in another state if the claim arises in California or depriving the employee of the substantive protection of California law in a suit arising in California.  A provision that violates the section is voidable by the employee, after which the matter shall… Read More

As the party invoking federal judicial power, the removing defendant bears the burden of establishing the facts necessary to support Article III standing (with the manner and degree of evidence appropriate to the stage of litigation--which on a motion for remand means taking alleged facts to be true).  Here, Experian established plaintiffs' standing.  They alleged that Experian had violated 15… Read More

Sanctions may not be awarded under CCP 128.7 unless the party to be sanctioned has been given a full 21 days in which to withdraw the offending pleading.  The 21 days are calculated by omitting the day on which notice of the proposed sanctions motion is served and including the last day.  So the earliest the sanctions motion can be… Read More

Under Civ. Code 3333.2(c)(2), noneconomic damages in a medical malpractice case are limited to $250,000 unless the defendant provided services that exceeded "the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital."  This decision holds that section 3333.2 applies to a physician's assistant who has… Read More

CCP 902 allows an appeal only by a party "aggrieved" by the appealed order or judgment.  Here, the watermaster appointed by the court to administer its judgment allocating water rights among claimants to the same river was not aggrieved and therefore lacked standing to appeal from a trial court order which interpreted the 60-year-old judgment allocating water rights among the… Read More

The district court abused its discretion in excluding the testimony of plaintiff's fire investigator expert witness.  Defendant conceded that the expert was qualified and used generally accepted methodology.  The district court improperly found there was too big a gap between the facts on which the expert based his opinion and the conclusions he drew from those facts.  The district court… Read More