California Appellate Tracker

Settlement, 998 Offer, Shifts Costs If Case Later Settles For Less Than Rejected Offer, 1, 3 CCP 998 applies when the parties settle after a 998 offer is rejected or the time for accepting it expires, if the case later settles for an amount less than the amount of the unaccepted 998 offer--at least when the eventual settlement fully resolves… Read More

Plaintiff insured admitted that its insurance policy required an appraisal if the insured and insurer disagreed about the amount of a covered loss.  This suit was filed before the appraisal occurred and was properly dismissed on the ground that any alleged injury was, at that point, too speculative to create an actionable claim or confer Article III standing. Read More

Arbitration, Mass Arbitration, Consolidation of Similar Arbitrations, Judicial Review, 2, 2 The same law firm filed 7,300 separate, but identical arbitration demands by Starz customers who claimed Starz violated Civ. Code 1799.3 by sharing their names and the films they viewed with other internet companies.  JAMS consolidated the customers' cases since they all involved the same legal and factual issues… Read More

Torts, Workers Comp Preemption, Maritime Law, Club Employee As amended in 1984, the Longshoremen’s and Harbor Workers’ Compensation Act excepted from the definition of "employee" "individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet," whether for-profit or not-for-profit, so long as the individuals are covered by a state worker's compensation scheme.  (33 U.S.C. § 902(3)(B).)  This… Read More

Probate, Heirship Petition by Trustee of Testamentary Trust, Prob. Code 11700, 1, 2 Under Probate Code 11700, “any person claiming to be ... entitled to distribution of a share of the estate, may file a petition for a court determination of the persons entitled to distribution of the decedent’s estate."  The trustee of a testamentary trust is entitled to receive… Read More

The decision reverses a summary judgment for the defendant doctor in a medical malpractice case.  The motion was based primarily on a medical expert's declaration stating that the defendant doctor had not performed the operation negligently and a subsequent bile leak was caused by a different medical procedure by a different doctor.  However, the expert declaration stated only those conclusions… Read More

Judgment, Setting Aside, FRCivP 60, Voluntary Dismissal Without Prejudice, 5, 2 An FRCivP 60(b) motion may be brought to obtain relief from a voluntary dismissal without prejudice under FRCivP 41(a).  Voluntary dismissal is a final determination of a proceeding.  Hence, falls within the scope of FRCivP 60(b)'s words allowing relief "from a final judgment, order, or proceeding".  Also Rule 60(b)… Read More

The district court correctly denied the defendant's motion to compel arbitration.  The arbitration agreement was part of the terms of use provisions of the defendant's website through which plaintiff joined defendant's gym subscription service.  However, the website's enrollment pages did not require the subscriber to view the terms of use or affirmatively agree to be bound by them.  The first… Read More

Consumer Protection, Debt Collection, Pay-to-Pay Fees Are Unfair Debt Collection Practice, 2, 2 Pay-to-pay fees, that is convenience fees a debt collector charges for use of speedy means of payment, such as pay by phone or online payment are an unfair debt collection practice violating 15 USC 1692f(1) because the fees are not expressly authorized by the agreement creating the… Read More

Attorneys Fees, Prevailing Party, Prevailing Defendant, Asymmetrical Standard To Further Statutory Purpose, 1, 2 This decision holds that Penal Code 502(e) allows attorney fee awards to prevailing defendants since it simply states that in a case under that section (which forbids computer hacking) the court may award attorney fees.  The Legislature knew how to stay awards to prevailing plaintiffs only,… Read More

Plaintiff, as a 17-year old student, engaged in a fight with another student in class. The teacher intervened and in trying to separate the two students, fell on plaintiff, breaking his leg.  This decision affirms a judgment on a jury verdict for the defendant teacher and school district finding they were not negligent.  There was conflicting evidence as to negligence,… Read More

Settlement, 998 Offer, Sanction for Refusing Applies to Prejudgment Costs and Fees Only, 1, 2 Plaintiff recovered judgment against defendant but for less than defendant's 998 offer which plaintiff had refused.  Consequently, under CCP 998, the plaintiff could recover only pre-offer costs and fees.  However, the CCP 998 sanction applies only to pre-judgment costs and fees.  Here, plaintiff incurred additional… Read More

Insurance, Homeowner's Insurance, Property Damage, Ash, Smoke & Debris from Wildfire, 1, 2 A wildfire that stopped half a mile from plaintiff's property dropped ash and debris on the property and temporarily caused it to have a fire smell.  Relying on Another Planet Entertainment, LLC v. Vigilant Ins. Co. (2024) 15 Cal.5th 1106, this decision holds that the smell, ash… Read More

Plaintiff obtained a big judgment against Ningbo.  Before it could enforce the judgment, Celestron and Ningbo arranged an atypical $4.2 million payment from Ningbo to Celestron to pay in advance for product later to be delivered by Celestron to Ningbo.  The purpose of the transaction was to move assets from Ningbo to other Chinese companies to thwart collection of the… Read More

This opinion affirms sanctions the trial court awarded against defendant's attorney for filing a frivolous opposition to a motion to confirm an arbitration award.  The opposition argued that the arbitrator had exceeded his powers by not considering (sufficiently) exhibits that the sanctioned attorney's client had introduced.  The only authority the sanctioned attorney cited for the proposition that an arbitration award… Read More

Attorneys Fees, Attorneys' Fee Clause, Interpretation, Costs of Enforcing Includes Attorney Fees, 1, 2 A contract that provided that Party A agreed to pay "for all third party costs incurred by Party B to collect overdue invoices" was a clause providing for recovery of attorney fees since they are likely third party expenses incurred in attempting to collect overdue invoices. … Read More

A bakery's refusal to sell an undecorated white cake to a same-sex couple for their wedding reception was intentional discrimination on the basis of sexual orientation in violation of the Unruh Civil Rights Act.  The policy turned on the buyers' sexual orientation as the sole basis for denying them a product sold any other customer.  Also, the bakery did not… Read More

Consumer Protection, Debt Buyers Act, No Actual Damages Required, 1, 2 The California Debt Buyers Act (Civ. Code 1788.50-1788.66) requires buyers of charged-off consumer debt to have the following before writing to the consumer to collect the debt:  sufficient records of the debt, the consumer’s liability for that debt, and the debt buyer’s entitlement to collect instead of the original… Read More

The landlord's 3-day notice to quit included a $4.44 charge for Los Angeles' Systemic Code Enforcement Program fees the landlord paid for the tenant's apartment.  Held, the notice was invalid.  LARSO does not allow the landlord to charge the tenant for SCEP fees. Because the 3-day notice did not state the correct sum owed, the unlawful detainer action was properly… Read More

 A plaintiff may obtain an appealable final judgment after suffering a loss on the principal claim by dismissing the other claims without prejudice, just so long as the plaintiff does not obtain any agreement from the defendant waiving or tolling the statute of limitations.  The risk that the limitations period will expire while the case is on appeal is sufficient… Read More