Torts

On remand from the US Supreme Court for reconsideration in light of Van Buren v. United States (2021) 141 S.Ct. 1648, the Ninth Circuit reaffirms its holding that the district court did not abuse its discretion in entering a preliminary injunction barring LinkedIn from preventing HiQ from "scraping" data from public LinkedIn posts by threats of suit or technological blocking… Read More

The trial court correctly denied this lawyer-defendant's Anti-SLAPP motion, finding that this suit to collect the agreed price for its services was not based on protected speech.  The fraud and concealment claim brought against the lawyer was for misrepresentations and concealments about the client-buyer's financial condition which induced plaintiff to enter into the services contract.  Communications at the pre-contract stage… Read More

The Airline Deregulation Act of 1978 (49 USC 41713) preempted plaintiff's tort claims arising from defendant's decision not to use plaintiff's software that offered certain in flight deals to airline passengers.  Refusing to follow the Ninth Circuit's minority view (Charas v. Trans World Airlines, Inc. (9th Cir. 1998) 160 F.3d 1259), this decision holds that in flight deals are part… Read More

Following Delaney v. Baker (1999) 20 Cal.4th 23, this decision holds that MICRA's one-year limitations on medical malpractice claims and $250,000 limit on non-economic damages did not apply to this elderly woman who was sexually assaulted by the defendant elder care facility's male attendant, based on a jury's finding that the defendant was not only guilty not only of general… Read More

A written waiver or release of future negligence claims or assumption of the risk in order to participate in recreational activities is enforceable.  Here, a high school required its football team players to sign such a release.  It barred plaintiff's claim for negligence in failing to diagnose the concussion he suffered playing football which led to serious brain damage.  Plaintiff… Read More

The trial court made four errors in granting Amazon judgment in this Prop. 65 action against it based on its listing (and sale) of 11 skin whiting products that contained mercury.  First, it improperly found that tests of individual samples of the products didn't prove that all of the product contained mercury.  The test results showed mercury levels so high… Read More

The operator of a residential care facility owed its severely retarded resident a duty of care s to take cost-effective measures to protect the resident from foreseeable harm from people like the handyman who sexually assaulted her and who the facility knew posed a foreseeable risk of harm to its female residents.) Read More

Under W&I Code 15657.03, a court may issue a restraining order to prevent a defendant from committing threatened or repeated physical or financial elder abuse. Here, the trial court did not abuse its discretion in entering such an order against a step child who, along with her mother, tried to unduly influence the mother's elderly husband to change his estate… Read More

The trial court instructed the jury to award plaintiff defendant's profits from the false advertising the jury found only if it found that the defendant acted wilfully.  This instruction was contrary to the Supreme Court's later holding in Romag Fasteners, Inc. v. Fossil Group, Inc. (2020) 140 S.Ct. 1492.  So the jury verdict was reversed and remanded.  However, disgorgement of… Read More

The Supreme Court holds that lenders and loan servicers do not owe borrowers a duty of care in handling their loan modification applications.  Lender and borrower are in privity of contract, and the economic loss rule prevents recovery for purely economic loss based on negligence between contracting parties.  The Biakanja factors apply only to parties not in privity of contract. … Read More

The trial court properly determined, as a matter of law, that defendant attorneys lacked probable cause to file and to continue prosecuting an action by a mobilehome park resident against the park owner for interference with the resident's contract to sell her mobilehome to a third party.  The Mobilehome Residency Law at the time allowed park owners to require would-be… Read More

Distinguishing and disagreeing with Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, this decision holds that the City is vicariously liable under respondeat superior for the negligence of one of its police officers in fail to secure a Police Department-approved, secondary firearm upon returning home from work.  The policeman left the gun, unlocked, in his car when he returned… Read More

A school does not owe a student a duty to indemnify the student for attorney fees the student incurred in defending a suit by a football referee who claimed he was injured during a school-sponsored football game by plaintiff's post-play tackle of an opposing player who fell on the referee.  Neither the free school provision of the California Constitution nor… Read More

Under Civ. Code 3333.2(c)(2), noneconomic damages in a medical malpractice case are limited to $250,000 unless the defendant provided services that exceeded "the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital."  This decision holds that section 3333.2 applies to a physician's assistant who has… Read More

Lab. Code 970 prohibits an employer from inducing an employee to relocate and accept employment by means of knowingly false representations about the kind, character, or existence of work or how long it will last.  Here, the trial court erred in granting the defendant employer summary judgment on plaintiff's claim under section 970.  The at-will employment contract that the plaintiff… Read More

When an Anti-SLAPP motion attacks a mixed cause of action, the motion must identify the portions of the cause of action that allege protected activity, but when the motion attacks an entire cause of action, it does not need to identify the activity at issue, since by default it claims that all activity mentioned in the cause of action is… Read More

Plaintiff was injured while jogging across defendant's property while in training to run a marathon.  This case holds that jogging for that purpose is a use of the property for a recreational purpose, and so Civ. Code 846 immunized the owner of the property from liability for plaintiff's injuries. Read More

Torts, Medical Malpractice, Abandonment of Patient, Reliance on Other's Good Conduct, 1, 1 The trial court did not err in this medical malpractice case in not giving CACI 509, dealing with a doctor's abandonment of the patient.  For the instruction to be applicable, the doctor must accept the patient into his care and then refuse to treat the patient without… Read More

Under Welf. & Inst. Code 15610.57 and 15657, authorize enhanced remedies for the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise."  Building on Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, this decision… Read More

Gov. Code 831.7 (dealing with hazardous recreational activities) immunizes Santa Barbara from liability for the death by drowning of a paddle boarder.  Stand-up paddle boarding is a hazardous recreational activity.  Santa Barbara had no duty to warn as the risk of falling from the paddle board and drowning was inherent in the sport.  Santa Barbara was not grossly negligent, having… Read More