Civil Procedure

For a federal Court of Appeals to have jurisdiction over an interlocutory appeal under 28 USC 1292(b), the district court must first find that (a) there is a controlling question of law, (b) there are substantial grounds for difference of opinion on that question, and (c) immediate resolution of the question would materially advance the ultimate termination of the litigation. … Read More

Lab. Code 970 prohibits an employer from inducing an employee to relocate and accept employment by means of knowingly false representations about the kind, character, or existence of work or how long it will last.  Here, the trial court erred in granting the defendant employer summary judgment on plaintiff's claim under section 970.  The at-will employment contract that the plaintiff… Read More

There is no right to a jury trial in a PAGA suit.  In such a suit a private plaintiff brings on the state's behalf a claim that otherwise would be handled by an administrative agency subject to trial court review, both without jury.  It would be anomalous to grant the private plaintiff greater rights than the administrative agency in whose… Read More

The district court denied defendant's Anti-SLAPP motion to dismiss the first amended complaint's defamation claims but granted defendant's motion to dismiss the other claims with leave to amend.  Plaintiff filed a second amended complaint before defendant appealed from the order denying the Anti-SLAPP motion.  This decision holds that the filing of the second amended complaint mooted the appeal from the… Read More

Following Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619 and disagreeing with Maplebear, Inc. v. Busick (2018) 26 Cal.App.5th 394, this decision holds that an arbitrator's preliminary injunction order is not an "award" and is not reviewable by a California trial court under CCP 1294, and the trial court's order dismissing a petition to vacate the arbitrator's preliminary injunction… Read More

This decision holds that under Evid. Code 721(b)(3), an expert may be cross-examined by a scientific or professional publication if the publication is established as a reliable authority by the cross-examined expert, another expert or judicial notice.  Such a publication may be used even if the testifying expert did not consult it in preparing his opinion.  Here, the testifying expert… Read More

On remand after a prior appeal decided in plaintiff's favor, the district court granted defendant summary judgment finding that defendant was not negligent or willful in including in its credit report mention of plaintiff's criminal charge that was filed more than 7 years before the credit report but was dismissed less than 7 years before the report.  This decision affirms… Read More

A jury found Ford liable to a purchaser for fraud and a CLRA violation as well as a violation of the Song-Beverly Act for selling plaintiff a Ford pickup with a Navistar engine when Ford knew the Navistar engine created unsolvable problems when put in a Ford truck.  This decision holds that substantial evidence supported the jury's compensatory damage award… Read More

This decision holds that a second plaintiff who had standing to sue when a different plaintiff filed this PAGA claim may be amended in to replace the original plaintiff and relate back to the original plaintiff's PAGA notice to the Division of Labor and Workforce Development--and so include a longer period of alleged Labor Code violations than would be possible… Read More

The trial court did not abuse its discretion in excluding plaintiff's principal officer from the courtroom during the portions of the trial in which the technical details were discussed regarding Yelp's software for filtering out unreliable reviews.  The officer was an experienced programmer who had previously managed to circumvent Yelp's software and might do so again.  Though a party, he… Read More

The Judicial Council's COVID-19 Emergency Rule 10a extended the time for bringing a case to trial by six months (i.e., a total of 5 years and 6 months) for actions filed before April 6, 2020.  This was such an action.  However, plaintiff didn't get it to trial until 5 years and 7 months after the action was filed.  Held, the… Read More

On an earlier appeal, the court held that the indemnity provision that the plaintiff required the defendant to sign in order to apply for approval of its development project was not supported by consideration and that plaintiff had no statutory authority to impose an indemnity agreement as a condition of plaintiff's statutory duty to consider defendant's application.  On this appeal,… Read More

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