Summary Judgment

The trial court correctly excluded most of a declaration by Synchrony Bank's litigation assistant which attempted to show that plaintiff had agreed to the arbitration provision of the bank's credit card agreement.  Though the declaration attached copies of account statements and different versions of the credit card agreement containing the arbitration clause, it did not attach any record showing the… Read More

This decision affirms a summary judgment for the employer in a FEHA disability discrimination case.  The employer met its McDonnell Douglas burden of proving a nondiscriminatory reason for terminating the plaintiff; namely, her chronic absenteeism and failure to document dispensing of prescription medicine properly.  Plaintiff didn't produce any evidence showing the employer's reason was pretextual.  Though the employer had misclassified… Read More

This decision reverses a summary judgment in a disability discrimination case under FEHA.  Plaintiff presented sufficient evidence to support a prima facie case that he could perform the essential duties of a job with or without accommodation and that he was treated differently from other employees because of his disability. Defendant's showing of a legitimate, nondiscriminatory reason for plaintiff's discharge… 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

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

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

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

An employer that gives preferential treatment toward a supervisor’s sexual or romantic partner does not thereby discriminate on the basis of sex against other employees of the same sex as the paramour because it doesn't satisfy Bostock v. Clayton County (2020) 140 S. Ct. 1731's test--would employer have acted differently if employee was of the opposite sex.  As used in… Read More

This decision reverses a summary judgment, finding that a question of fact exists as to whether defendant insurer acted reasonably to settle this catastrophic injury case within the insured's $25,000 policy limits.  During the week the plaintiff's policy limits demand remained open, defendant did not transmit the offer to its insured for his consent.  Defendant also repeatedly failed to send… Read More

The D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 doctrine about summary judgment affidavits not being allowed to contradict admissions in discovery is not a doctrine regarding the admissibility of evidence, but rather whether the contradictory evidence can be given an weight.  Here, an expert changed his answer on the key question of whether a plaintiff was exposed… Read More

Noting the split of authorities on this issue, this decision follows Cooksey v. Alexakis (2004) 123 Cal.App.4th 246 in holding that a party who seeks a continuance under section 437c(h), must show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner, and accordingly requires the court to grant the… Read More

The trial court properly granted summary judgment to defendant in this invasion of privacy suit which alleged that the defendant neighbor invaded plaintiff's privacy by audio and video recordings made by defendant's security cameras and recorders of goings on in plaintiff's backyard.  The opinion states that defendant had a legitimate need for the security equipment as she was a media… Read More

The tenant served his summary judgment motion one day late in this UD action, six days before the hearing rather than the required seven for service by express mail.  Nevertheless, the the judgment is affirmed.  Plaintiff filed an opposition.  Though complaining about the short service, it did not claim any prejudice.  Also, there was no record of oral proceedings at… Read More

The trial court did not abuse its discretion in adding P as an additional judgment debtor.  The trial court's early granting of summary judgment to P when she was initially sued in the case didn't prevent her from later being added to the judgment, since the summary judgment absolved her of indiivdual liability for the wrongs committed, while adding her… Read More

An insurer may waive the insured's forfeiture of the policy through non-payment of the premium even though a loss has occurred during the period between lapse of the policy due to non-payment and reinstatement upon late payment of the premium.  The loss-in-progress rule (Ins. Code 22, 250) does not prevent the insurer from waiving the forfeiture in this situation because… Read More

Plaintiff obtained an arbitration award against Adamstos which it sought to collect from Vigorous and Blue Wall as successor corporations or alter egos of Vigorous.  Since the claim arose in admiralty, the court applied federal common law.  Summary judgment was affirmed.  Plaintiff failed to allege that Vigorous or Blue Wall received a transfer of all or substantially all Vigorous' assets… Read More

In a transactional legal malpractice case arising from the defendant lawyer's advising plaintiff to enter into two marketing contracts that conflicted with each other, the plaintiff had to show only that the lawyer's negligent advice was a substantial factor in causing her loss.  This she did at least sufficiently to overcome summary judgment by showing that she was considering not… Read More

Questions of fact about when Greenberg's partner stopped working for plaintiff precluded summary judgment in Greenberg's favor on statute of limitations grounds. Read More

The trial court abused its discretion in excluding an expert's opinion as to lost profits in ruling on a summary judgment motion.  While most of his opinion was speculative, one part dealt with lost profits using a before-and-after method based on 16 months of actual profits earned before the allegedly harmful event.  The before-and-after method is an approved way to… Read More

Having secured a default judgment against the contractor that build a retaining wall on adjacent property which collapsed damaging plaintiff's property, plaintiff sued the contractor's general liability insurer.  This decision holds that the trial court erred in entering summary judgment in the insurer's favor.  The insurance policy was an occurrence policy.  With a continuing loss, coverage attaches when the damage… Read More