Civil Procedure

CCP 340.5's one-year statute of limitations, not the general two-year limitations period for personal injuries applied to this action by an emergency room patient who was injured when she collapsed on the way back from the bathroom.  The emergency room nursing staff made a medical decision that the patient did not need to be accompanied to and from the restroom. … Read More

Plaintiff sued the manufacturer of his hip replacement for product liability failure to warn and defective manufacture.  This decision affirms summary judgment for the defendant.  The failure to warn claim failed because plaintiff's doctor who chose and implanted the hip replacement testified that he kept closely abreast of developments in hip replacement surgery and was aware from reading scientific journals… Read More

The general rule under CCP 395 is that the county of the defendant's residence is the only proper venue in which to bring a suit against him or her.  However, CCP 395(a)'s second sentence also allows suit to be brought in the county in which injury to person or personal injury occurs.  This decision explains that to qualify as an… Read More

While a trial court has broad discretion to allow an amendment to conform to proof after commencement of trial (CCP 576), the trial court lacks authority to make a sua sponte post-trial amendment of the complaint to allege a claim based on facts and theories not alleged in the complaint.  Doing so denies the defendant due process. Read More

The federal Poultry and Poultry Products Inspection Act (21 U.S.C. §§ 451 et seq.) expressly preempts state laws that impose different or additional labeling requirements to the labels approved by the Secretary of Agriculture under the PPIA.  (21 U.S.C. 467e.)  Defendant bears the burden of proving federal preemption and thus, when the issue is contested, must prove that the Secretary… Read More

As in Turrietta v. Lyft, Inc. (2021) 2021 Cal. App. LEXIS 815, the plaintiff in a parallel wage and hour case appealed from an order approving a class action and PAGA claim settlement.  Contrary Turrietta, but without citing it, this decision holds that even though he opted out of the class, the objector had standing to appeal from the final… Read More

The district court erred in holding that this class settlement was not a coupon settlement within CAFA's meaning (see 28 USC 1712.  The settlement gave class members $36 or higher vouchers for defendant's services or products.  The relatively low amount of the smallest vouchers and limited (251) number of products or services they could purchase, showed these were coupons even… Read More

Plaintiff and defendant were a married couple living in Georgia.  While on a visit to California, husband assaulted and battered wife.  The requirements for California to exercise specific jurisdiction over a nonresident defendant are satisfied when the defendant travels to California and commits a tort while in California--if the suit arises from that tort. California has an interest in deterring… Read More

To have standing to move to disqualify another party's attorney, the movant must generally be a present or former client of the challenged attorney, or at least a person who shared confidential information with that attorney in the course of a confidential or fiduciary relationship.  Otherwise, the movant is generally not affected by any breach of the attorney's duties of… Read More

The trial court correctly refused to take judicial notice of insurance policies that were not matters of public record. The existence of a contract between private parties cannot be established by judicial notice under Evidence Code section 452(h). (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) Read More

The insurer did not breach its policy or the duty of good faith in settling plaintiff's claim which arose from destruction of her house by a wildfire.  Under the policy, she was entitled to the least of (a) the policy limit, (b) the cost to rebuild the same house, or (c) the actual cost paid for reconstruction.  Here, the insurer… Read More

In this case, defendant avoided summary judgment by submitting a declaration from a non-party witness which said she knew facts undermining the defendant's going and coming rule defense.  After summary judgment was denied on that basis, defendant took the witness' deposition at which she disclaimed any personal knowledge of the facts stated in her declaration which she said she signed… Read More

The trial court properly granted defendant a partial nonsuit on its affirmative defense of settlement following plaintiff's opening statement that conceded plaintiff's husband and guardian ad litem had authorized plaintiff's attorney to offer to settle her catastrophic injury claim for the $15,000 limit of defendant's auto insurance policy.  Nonsuit can be granted on an issue that is less than an… Read More

In this case, defendant avoided summary judgment by submitting a declaration from a non-party witness which said she knew facts undermining the defendant's going and coming rule defense.  After summary judgment was denied on that basis, defendant took the witness' deposition at which she disclaimed any personal knowledge of the facts stated in her declaration which she said she signed… Read More

The trial court properly granted defendant a partial nonsuit on its affirmative defense of settlement following plaintiff's opening statement that conceded plaintiff's husband and guardian ad litem had authorized plaintiff's attorney to offer to settle her catastrophic injury claim for the $15,000 limit of defendant's auto insurance policy.  Nonsuit can be granted on an issue that is less than an… Read More

The plaintiff in a parallel PAGA suit against the same employer does not have standing to move to vacate or appeal from a judgment entered after the trial court approved settlement of a different plaintiff's similar PAGA suit against the employer.  To have standing to appeal one must be both a party to the action and be aggrieved by the… Read More

In a quiet title action, if summons is served by publication, the published notice must describe the property at issue, giving either or both of its street address or legal description.  (CCP 763.,020.)  Here, the published notice gave only the assessor's parcel number.  As the notice did not comply with the statute, it was insufficient; so the default of the… Read More

An order quashing service of summons is an appealable order under CCP 904.1(a)(3).  The statute does not draw any distinction between orders quashing service of summons for lack of personal jurisdiction (which are final orders ending the case) and orders quashing service because it was inadequately performed (which are interlocutory since summons can be served again by proper means).  Hence,… Read More

A new trial was required on plaintiff's promissory fraud claim due to inconsistent special verdicts.  The jury had found that the individual defendant did not commit fraud while the corporate defendant did.  Since the corporation had made promises to plaintiff only through the individual defendant's communications with him, the two verdicts were inconsistent.  When special verdicts are inconsistent, the court… Read More

The release in this class action settlement was too broad.  Only claims that were or could have been alleged in the complaint--that arise from the facts the complaint alleges--may be released in a class action settlement.  Here, the release went beyond that boundary to any claim that related in any way to any of the facts or theories that the… Read More