Civil Procedure

The trial court erred in sustaining defendant's demurrer to this complaint seeking payment for construction work.  The demurrer claimed that the services had been provided by an unlicensed contractor and that B&P Code 7031 therefore barred recovery.  The issue in the case was which of two affiliated corporations had really contracted to and in fact provided the contracting services, the… Read More

Under Gov. Code 913(b), a government entity that denies a tort claim must give the claimant a notice saying you have only six months to file suit and suggesting that the claimant seek legal advice immediately.  Here, the defendant agency's denial notice mentioned the six-month deadline but omitted the advice to seek legal advice.  Due to that defect, the notice… Read More

Although plaintiff prevailed on only one of several claims, it obtained a preliminary and permanent injunction on its claim for breach of a non-competition clause and was the prevailing party entitled to an attorney fee award. Read More

While a summary adjudication motion must completely dispose of a cause of action, for these purposes "cause of action" is determined in the Pomeroy sense used for res judicata and does not depend on how claims are grouped in the complaint.  Thus, where two or more separate and distinct wrongful acts are combined in the same cause of action in… Read More

The court that decided in Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1158 that "prevailing party" under the Song-Beverly Act (Civ. Code 1794) was governed by CCP 1032's net monetary judgment standard, now abandons that holding and holds instead that prevailing party is determining under Civ. Code 1794 as it is under Civ. Code 1717 by the… Read More

Defendant requested a jury and posted jury fees but withdrew his jury request the first day of trial.  Plaintiff then demanded a jury but hadn't posted jury fees.  The trial court found plaintiff had waived the right to a jury trial and it denied relief from that waiver.  Plaintiff did not immediately seek a writ to challenge the waiver ruling.… Read More

Following David S. Karton, A Law Corp. v. Dougherty (2014) 231 Cal.App.4th 600, this decision holds that when a defendant pays a default judgment entered against him before successfully moving to vacate the default judgment (and hence before filing an answer), Civ. Code 1717(b)(2) applies, making the defendant the prevailing party for purposes of a fee award if the plaintiff… Read More

Ordinarily, an order on a motion for an attorney fee award is appealable as a post-judgment order under CCP 904.1(a)(2).  But here, to maintain the trial court's jurisdiction to enforce a settlement agreement, the parties agreed that judgment would not be entered dismissing the action until after defendant had paid the settlement amount and any attorney fees awarded by the… Read More

An order in a tort suit denying a defendant's claim of derivative federal sovereign immunity is not appealable under the collateral order doctrine because any error can be corrected on appeal from a final judgment.  Derivative sovereign immunity and government contractor immunity provide immunity from liability not immunity from suit. Read More

The costs of preparing exhibits for trial and demonstratives for closing argument that are not used are not costs recoverable as a matter of right under CCP 1033.5(a)(13), but may be recovered in the trial court's discretion under section 1033.5(c)(4). Read More

Owners of adjoining apartments mediated Doe's civil harassment prevention action, reaching an agreement that provided, among other things, that the parties agree not to disparage one another.  This decision holds that read in light of the limited nature of the action and surrounding circumstances, the provision could not reasonably be read to ban Doe from saying negative things about Olson… Read More

Arizona lacked personal jurisdiction over Continental (which built the airplane engine) and Textron (which acquired some assets of the plane's manufacturer) in a products liability suit by the plane's owner who had survived a crash alleged caused to defects in the engine.  Neither defendant was subject to general jurisdiction in Arizona.  Continental had not purposefully availed itself of Arizona's privileges. … Read More

A defendant that files an Anti-SLAPP motion to strike under CCP 425.16 may seek attorney fees (based on prevailing on the Anti-SLAPP motion) in one of three ways:  as part of the Anti-SLAPP motion, by a post-judgment memorandum of costs, or by a post-judgment motion for an attorney fee award.  This decision holds that if the defendant chooses either of… Read More

CCP 36 allows a party over 70 years old to move for trial preference if his health makes preference required to avoid prejudicing his interest.  If preference is granted, trial must be held within 120 days.  Here, the plaintiff/petitioner filed a CCP 36 motion for preference and met the statute's criteria.  However, plaintiff's case was part of a coordinated group… Read More

Plaintiff secured a default judgment against defendant in 2008 based a proof of service showing service on him personally at a specified address.  In 2018, plaintiff moved to renew the judgment and served notice of the motion on plaintiff by mail.  Defendant first moved to set aside the renewed judgment submitting a declaration conceding that he had received notice of… Read More

The trial court erred in granting defendant summary judgment in this suit by a spectator injured by a foul ball during a college baseball game. Despite primary assumption of the risk, the venue has a duty to take reasonable steps to increase safety and minimize the risk of injury to spectators at its baseball games, if it could do so… Read More

The district court abused its discretion in denying Volkswagen's motion to intervene in a FOIA action seeking production of documents concerning Volkswagen's dieselgate fraud.  Volkswagen satisfied Fed. R. Civ. P. 24(a)'s three requirements for intervention as of right.  It had a significant protectible interest in asserting that the sought documents were exempt from FOIA disclosure under Exemption 4.  A ruling… Read More

Rice recovered judgment against Downs.  While Downs' appeal from the judgment was pending, Rice moved for a charging order against Downs' interest in Triton, an LLC of which he was the managing member.  That motion was denied due to the automatic stay on appeal.  Glaser, Downs' lawyer, then obtained a security interest in Downs' interest in Triton, which it perfected… Read More

Defendant bought the property adjacent to plaintiff's property and improved the purchased property with a drip-irrigated walnut orchard.  A strip of land on defendant's side of the fence between the two properties was actually plaintiff's property.  After defendant completed the orchard improvements, plaintiff sued for trespass on that strip of land and sought an injunction requiring defendant to restore the… Read More

Plaintiff waived/forfeited her right to disqualify the trial judge on the ground she had worked as an attorney for the defendant county within the last four years because plaintiff did not object or request the judge's disqualification in response to the judge's disclosure of her prior employment at the beginning of a hearing on the merits of plaintiff's petition for… Read More