Civil Procedure

A civil harassment injunction entered in favor of an attorney for one of a divorcing couple against the attorney for the other spouse was reversed.  Insofar as the injunction was based on emails that defendant sent plaintiff about the divorce, the emails didn't threaten violence and so were protected First Amendment speech which could not be considered in support of… Read More

This en banc opinion reverses a summary judgment the district court had granted the University of Arizona in a Title IX sex harassment claim based on a sexual assault by a male student on a football scholarship against a woman student in off-campus housing.  To obtain damages under Title IX for student-on-student harassment, a plaintiff must show (1) that the… Read More

A forum selection clause in defendant corporation's Delaware by-laws selecting the Delaware Chancery Court as the forum for any shareholder disputes was unenforceable in California state court because there is no right to a jury trial in Delaware Chancery Court so the forum selection clause operated as a pre-suit waiver of the constitutional right to a jury trial which cannot… Read More

The trial court erred in granting homeowners an injunction against the county Road Commissioner barring the county from enforcing ordinances banning encroachments on a county road leading to a popular public hiking trail.  Courts may not enjoin enforcement of the laws, which in this case make encroachments a misdemeanor offense.  Contrary to the homeowners' claim, CEQA does not require any… Read More

A party may appeal from denial of its summary judgment motion by stipulating to entry of judgment after and based on the denial of the summary judgment motion and making clear that it is doing so only for the purpose of appealing the denial of summary judgment--because there was no full record developed at trial that could be said to… Read More

Equitable tolling could apply to a plaintiff's pursuit of an action in a foreign court to prevent destruction of evidence needed for proof of plaintiff's substantive claim eventually brought in state court.  It is not necesssary for equitable tolling that the prior suit seek substantive relief that lessens the plaintiff's injury or damage.  The plaintiff need only show notice to… Read More

A dismissal without prejudice in either state or federal court is not a final judgment given res judicata effect if the dismissal is entered after a demurrer has been sustained or motion to dismiss has been granted with leave to amend and the dismissal is filed within the time allowed for amendment. Read More

A federal court can may compel a witness to appear at a trial if the court is within the same state or within 100 miles of the witness' residence or place of business.  FrCP 45.  The court may take remote testimony for good cause in compelling circumstances.  FRCP 43.  But the court cannot compel a witness outside the normal subpoena… Read More

Following prior 9th Circuit precedent, this decision holds that an order denying an Anti-SLAPP motion to dismiss is immediately appealable under the collateral order doctrine--unless the order denies the motion because the claim fits within one of CP 425.17's exceptions to the Anti-SLAPP statute--but in concurrences two of the panel's three judges urge the full court to overrule the prior… Read More

The trial court erred in sustaining defendants' demurrer to the class action allegations of the complaint in this case which sought actual and punitive damages for the defendants' misuse of the Ellis Act to evict tenants from rent-controlled units and then to list units in the same building on AirBnB for tenancies of up to three years.  The decision holds… Read More

In this action, plaintiff sought a declaration that its use of the trademark "Impossible" in connection with its food products didn't infringe upon defendant's federal trademark of the same word.  By a split decision, the 9th Circuit held that California could exercise personal jurisdiction over the defendant, a one-man LLC that for two years operated primarily from San Diego before… Read More

When a plaintiff seeks a preliminary injunction claiming a state statute infringes on plaintiff's constitutional rights, the district court must weigh the plaintiff's probability of success on the merits as well as the existence of irreparable injury and the balance of equities and public interest because the probability of success on the merits heavily influences the evaluation of the other… Read More

Attorneys representing themselves should not be afforded special consideration or the liberal pleading standard allowed other types of pro per litigants, and do not fall into the category of those “proceeding without assistance of counsel" under 9th Circuit rules. Read More

In federal court, FRCivP 41(a)(1)(B) treats the second voluntary dismissal without prejudice of the same claims as a judgment on the merits.  However, this decision holds that the federal rule does not give a second dismissal in federal court the force of a judgment on the merits for claim preclusion purposes if the plaintiff files a third suit on the… Read More

The Judicial Council had constitutional authority to adopt Emergency Rule 9 extending statutes of limitation by six months due to the COVID-19 pandemic.  Governor Newson's executive order granting the Judicial Council authority to adopt that rule was itself authorized by Gov. Code 8571. Read More

Here, a lender sued on a HELOC loan which provided for monthly payments, gave the lender the discretion to accelerate the loan on default, and provided for any remaining balance to fall due on a specified date.  This decision holds that the HELOC called for separate, divisible performances by the borrower--namely, the monthly payments.  So that the lender could sue… Read More

A court administering a multi-district litigation proceeding has the power to require common fund benefit assessments--i.e., payments into the MDL proceeding's common benefit fund--from recoveries in non-MDL cases if (1) counsel for claimants in a non-MDL case voluntarily consents to the district court’s authority by signing, or otherwise entering into, a participation agreement requiring contributions in exchange for access to… Read More

The trial court abused its discretion in disqualifying defendant's attorney on the ground the attorney would be defendant's principal witness regarding a decade-old settlement agreement between the parties--one that the attorney had negotiated for defendant.  When the client gives fully informed consent, as was true here, the attorney-witness may be disqualified only if the trial court finds prejudice to the… Read More

The collateral source rule cannot be used to confer UCL standing on a plaintiff who has suffered no economic injury from the alleged unfair competition but whose insurer paid more as a result.  Here, plaintiff alleged that Genentech sole a drug in too big doses that ended up wasting the expensive drug.  Plaintiff conceded he would have paid the same… Read More

Corp. Code 5142 and 5223 provide that a director of a nonprofit corporation may sue to enjoin a breach of the charitable trust and/or to remove another director  fraudulent or dishonest acts, gross abuse of authority, or breach of duty.  This decision holds that since the two statutes do not use the instituted or maintained" language used in Corp. Code… Read More