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
Following White v. Square, Inc. (2019) 7 Cal.5th 1019, this decision holds that the trial court did not err in instructing the jury and in submitting a special verdict form to them which required plaintiff to prove that she intended to use Omni Hotel's services by booking a reservation or use the website to ascertain Omni's prices and availability for… Read More
An action under San Francisco's Tree Dispute Resolution Ordinance about a neighbor's tree that has grown to obstruct the plaintiff's view is an action in the nature of one for a continuing nuisance, even though obstruction of view by trees was not actionable at common law. Accordingly, there is no statute of limitations on such an action since the harm… Read More
This decision affirms dismissal of plaintiff's complaint on judicial estoppel grounds. In prior litigation over the same award of rights to assign .africa URLs, plaintiff took the position before an international arbitration panel that plaintiff could not sue in court over the award. That position was completely inconsistent with its current assertion of the right to sue in court over… Read More
Ordinarily, when a complaint alleges a stand-alone claim for declaratory relief and properly alleges the existence of an existing controversy, the trial court should not grant a demurrer because the plaintiff is entitled to a declaration of rights even if unfavorable. However, the error is not prejudicial if the declaration would be in the defendant's favor. The appellate opinion affirming… Read More
In a direct listing, the issuing company files a registration statement with the SEC which then allows it to sell its registered shares directly to the public and allows its existing shareholders to do so as well. Since direct listing does not involve bank financing of the issuance, there is no "lock up" period during which unregistered shares cannot be… Read More
When a lawyer's advice is sought for both business purposes (such as tax compliance) and legal advice (advice on tax law), whether the communications are attorney-client privileged or not is tested by the "primary purpose" test--was the primary purpose of the communication legal or business advice? (The court expressly declines to decide whether legal advice being "a" rather than "the"… Read More
Plaintiff voluntarily dismissed its misappropriation of trade secrets claim, but continued to prosecute six other causes of action against defendant. Defendant moved unsuccessfully for an attorney fee award under Civ. Code 3426.4 which allows fee awards for trade secrets claims brought in bad faith. Defendant's appeal from the order denying its fee motion was dismissed. The order was not a… Read More
This decision holds that the district court erred in denying Comcast's motion to compel arbitration even though its arbitration clause precluded customers from litigating public injunction claims in any forum. First, the decision holds that the mere presence of the clause in the arbitration agreement does not automatically invalidate the arbitration agreement for all purposes--but rather only in cases that… Read More
Applying Martinez v. Combs (2010) 49 Cal.4th 35 regarding the definition of employer under IWC orders, this decision affirms a summary judgment finding that a bail bond surety company is not the employer of bail bondsmen's fugitive recovery personnel. The surety company did not hire, fire or exercise control over those personnel. The surety company's contracts with the bail bondsmen… Read More
In Law v. Siegel (2014) 571 U.S. 415, the US Supreme Court held that a bankruptcy court may not use its equitable powers under 11 USC 105 to contravene express provisions of the Bankruptcy Code. Applying that reasoning, this decision departs from prior Ninth Circuit precedent, In re Rosson (9th Cir. 2008) 545 F.3d 764, and holds that a bankruptcy… Read More
While CCP 1033.5(b)(3) generally disallows an award of costs for the expense of photocopying, section 1033.5(a)(13) allows an award of costs for preparation of exhibits "if reasonably helpful to aid the trier of fact." This decision holds that "trier of fact" refers to any resolution by judge or jury of facts, whether on motion or at trial. So the cost… Read More
A provision in an attorney's contingency fee agreement that purported to allow the attorney to consent on the client's behalf (and over the client's objection) to any settlement offer that the attorney thought was reasonable and in the client's best interest violated the Rules of Professional Conduct and was void. Such a provision creates an immediate, direct conflict of interest… Read More
