Civil Procedure

The Federal Aviation Administration Authorization Act does not preempt California's ABC test for distinguishing between independent contractors and employees, and so that test as adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 and codified in Lab. Code 2775 and 2776 governs in determining whether a federally licensed interstate motor carrier has correctly classified its truck… Read More

Under the rule announced in Muktarian v. Barmby (1965) 63 Cal.2d 558, the statute of limitations does not start to run on a quiet title action so long as the plaintiff remains in possession of the premises, even if plaintiff is aware of conflicting claims against the property, so long as the conflicting claims are not pressed against him.  In … Read More

A trial court has discretion to consider new evidence in reply papers supporting a summary judgment motion as long as the opposing party has notice and an opportunity to respond.  Evidence which is used to fill gaps in the original evidence created by the opposition is particularly appropriate to consider in a reply. Read More

To preserve its affirmative defenses, a defendant need not file a new answer to an amended complaint that does not change the cause of action to which those defenses pertain.   When an amended complaint does not add new parties, new claims, or significant new factual allegations, the answer to the previously filed complaint suffices. Read More

Disagreeing with Plancich v. United Parcel Service, Inc. (2011) 198 Cal.App.4th 308, this decision holds that Labor Code 218.5 and 1194 prescribe one-way fee and cost awards in employee suits for minimum wage and overtime pay, precluding the application of CCP 1032 and CCP 998, which only changes the normal prevailing party determination under CCP 1032.  An employer may recover… Read More

In this suit for unpaid wages, plaintiff successfully opposed defendant's motion to transfer the case to the court's limited jurisdiction division, but then failed to recover damages exceeding the limited jurisdiction's maximum.  CCP 1033 provides that when this occurs,, the court may deny the plaintiff costs, including attorney fees. Without deciding whether the fee-shifting provisions of various Labor Code sections… Read More

In reaction to San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, the Legisalture amended CCP 128.5 to require in subdivision (f) that the court first find a motion, complaint or other filing to be frvolous under subdivision (a) and then not award sanctions until after a 21-day safe harbor as under CCP 128.7.  This… Read More

This decision holds that CCP 351, which tolls the statute of limitations while the defendant is absent from the state, is unconstiturional as violative of the dorman Commerce Clause insofar as it tolls the statute of limitations on claims against a defendant who was a California resident when the claim accrued, but later moved permanently out of state.  Here, plaintiff… Read More

This decision reverses the trial court's denial of defendant's motion to set aside a default judgment and the underlying default under CCP 473.5 and for extrinsic mistake or fraud.  Plaintiff lent to defendant's CEO, who without authority pledged defendant's assets as collateral for the loan, which he invested in a Ghanaian scam.  Plaintiff filed suit against the CEO and defendant,… Read More

The federal Wiretap Act provides a civil cause of action to any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of 18 U.S.C. §§ 2510–2523. (18 U.S.C. § 2520(a).)  Under § 2520(e), the action must be brought no later than two years after the date upon which the claimant first has a reasonable… Read More

When the parties agree to a general reference under CCP 638, unless their agreement provides otherwise, the trial court must enter judgment in accordance with the referee's decision once it is filed with the court.  However, following entry of judgment, the court may review the referee's legal conclusions on a party's motion for new trial or to vacate the judgment. … Read More

The district court correctly abstained on Younger v. Harris grounds and dismissed this suit which sought to enjoin the Hawaii Attorney General from proceeding with a state court suit under Hawaii's UDAP statute for deceptively marketing Plavix by concealing the fact that Asians and Pacific Islanders have a genetic modification that impairs the drug's function.  The state court suit was… Read More

State Farm's 998 offer was valid and enforceable to shift costs in this case.  The signature block contained a space for signature by the attorney for the HOA, which was sufficient to identify the party in the signature line for acceptance.  Also, the 998 offer's requirement of signature on a settlement agreement releasing all claims " arising from, relating or… Read More

Three principles govern the award of monetary sanctions for discovery abuse.  First, the court must award monetary sanctions against the loser of a discovery motion unless it finds that either the loser acted with substantial justification or imposition of sanctions would be unjust under the circumstances.  Second, the monetary sanctions may only be imposed based on attorney fees and costs… Read More

Under Cal. Rules of Court 3.1700, 3.1702, the time to file a memorandum of costs and a motion for attorney fees runs from service of notice of entry of judgment.  That the prevailing party had actual knowledge of entry of judgment earlier is irrelevant.  It is service of notice of entry, not actual knowledge that starts the time running.  Likewise,… Read More

Once the attorney-client privilege has been established, the trial judge or counsel for any party may not comment on the fact that a party or witness has exercised the privilege.  (Evid. Code 913(a).)  Moreover, the trier of fact may not draw any inference from a witness’s invocation of a privilege.  The court must so instruct the jury upon request.  (Ibid.)… Read More

Applying Semtek Internat. Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, this decision holds that a federal district court's dismissal of a 42 USC 1983 claim on the ground it was precluded by the res judicata effect of a state administrative decision denying her claim is not a final judgment entitled to claim preclusive effect under federal common law. … Read More

Federal common law governs the effect of a federal court's judgment on federal law claims (Taylor v. Sturgell (2008) 553 U.S. 880, 891) whereas state law governs the res judicata effect of a federal court's judgment on state law claims when exercising diversity jurisdiction (Semtek Internat. Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, 507).  It is unclear which… Read More

Plaintiff was injured while working on a rescue boat owned by defendant.  Plaintiff did not file a timely government claim within 6 months of his injury, but did file a timely application for permission to present a late claim, within one year of the injury.  Defendant's response to the application stated that it had denied plaintiff's claim, not his application,… Read More

This decision holds that while a trial court does not lose jurisdiction to amend or vacate an interlocutory order simply because a Court of Appeal has issued an order to show cause in response to a mandate petition, the trial court should generally not do so since the Court of Appeal's issuance of an OSC rather than an alternative writ… Read More