California Appellate Tracker

A 998 offer that allowed the plaintiff to choose between two options, one of which was definite and calculable ($65,000 for a dismissal) and the other which was ambiguous (because it dealt only with categories of damages without quantifying them, thus leaving the offer dependent on post offer proof of disputed items) was sufficient to shift costs and fees in… Read More

The district court improperly excluded plaintiff's economics expert's testimony defining product markets and improperly granted SAP summary judgment on Terradata's antitrust tie-in and trade secret claims.  The expert used recognized economic methods to identify the tying and tied markets.  Terradata's evidence raised genuine issues as to whether SAP had market power in the tying market and adversely affected a not… Read More

Lis Pendens, Real Property Claim, Challenge to Trustee of Trust holding Real Property, 1, 12 Shortly before his death, 90-year-old Mancini, amended his inter vivos trust to make his caregiver, Rollins, the sole trustee and beneficiary.  Newell, Mancini's daughter and pre-amendment beneficiary, sued Rollins to invalidate the trust amendment.  Newell recorded a lis pendens on property that Rollins had purchased… Read More

Effective January 1, 2022, the Legislature amended Civil Code section 52.1 to expressly remove Government Code section 821.6 immunity as to “any peace officer or custodial officer” sued for a violation of the Bane Act.  This decision holds that the amendment is substantive, not procedural, because it removes an otherwise absolute defense to liability under the Bane Act.  Since the… Read More

Torts, Duty of Care, No Duty to Intervene in Dispute between Adjacent Homeowners or Tenants, 1, 12 A homeowners association and its real estate servicing agent owe no duty of care to intervene in a dispute between a homeowner and the tenant of an adjacent home or to report the dispute to the police or other peace officers. Read More

Unfair Competition, Unfair Practice, Disclosure of Emergency Room Charges, 1, 12 It is not unlawful or unfair for a hospital to charge for evaluation and management services (EMS) for emergency room patients in accordance with the hospital's fee schedule as disclosed on a charge-master website reference to which is clearly disclosed in the emergency room as required by California's Payers'… Read More

Under the Song-Beverly Act, Civ. Code 1793.2(d), a manufacturer must "promptly" offer to repurchase a car (or other consumer good) that it has been unable to repair to merchantable condition or to the expressly warranted condition after a reasonable number of repair attempts.  There is no set time deadline for a "prompt" offer, but 40-50 days following a demand has… Read More

The clerk's service of a signed minute order did not start the 60-day period for appealing from that order because the order was not "endorsed" filed.  The endorsement of an electronically filed document must read "Electronically filed by the Superior Court of California, County of _____, on [date].  Cal. Rules of Ct., 2.259(d)(1).  The minute order did not bear such… Read More

A PAGA claim inherently involves at least one claim of a statutory violation with respect to the named plaintiff and it may also involve claims of that and other statutory violations with respect to other employees.  Hence, if the named plaintiff has signed an enforceable arbitration clause governed by the FAA, the court must compel arbitration of the named plaintiff's… Read More

Plaintiff was the head mashgiach who ensured the kosher certification of grape products for the defendant, a non-profit corporation which is the largest certifier of kosher food products in America.  This decision holds that for purposes of the implied First Amendment "ministerial exception" to employment statutes, plaintiff was a "minister" and defendant was a religious organization.   Only an observant Orthodox… Read More

Disagreeing with Miranda v. National Emergency Services, Inc. (1995) 35 Cal.App.4th 894, this decision holds that H&S Code 1799.110’s stricter qualifications requirement for expert witnesses apply when the physician being sued was an on-call radiologist who remotely reviewed X-ray and ultrasound images for an emergency department patient on a “stat” basis as requested by the emergency department.  Only by extending… Read More

Daughter lacked authority to sign a nursing home's arbitration clause on her mother's behalf though she held a durable power of attorney from mother.  The power of attorney allowed her to make financial and health decisions for mother but specifically did not grant her authority to defend, settle or submit to arbitration claims by or against mother.  Though the arbitration… Read More

Employment, Wage & Hour, Attorney Fees and Costs, Successful De Novo Appeal After Berman Hearing, 1, 1 Labor Code 98.2(c) authorizes an attorney fee award against a party that unsuccessfully appealed from the Labor Commissioner's ruling in a Berman hearing on a wage claim.  But that statute says nothing about attorney fee awards when the appeal is successful.  Here, the… Read More

Beneficiaries of an estate sued the estate's lawyer for malpractice claiming that the lawyer negligently failed to file or advise the client to file a protective claim for a refund with the IRS which would have allowed the estate to deduct millions of dollars paid in attorney fees in prior litigation from the estate on which inheritance taxes were assessed. … Read More

Appeals, Appealable Orders, Attorney Disqualification, Exclusion as a Witness, 1, 1 A ruling on an in limine motion either excluding or refusing to exclude an attorney's testimony as an expert witness is not an appealable order.  Unlike an order disqualifying a lawyer from representing a party to the action, an order excluding a witness does not act as an injunction… Read More

The trial court abused its discretion in denying plaintiff's motion to extend a Domestic Violence Protection Act injunction against her ex-lover.  In evaluating whether to grant renewal of a DVRO, the question is whether a reasonable person, in the petitioner’s circumstances, would fear repetition of the abuse if the order expired. Petitioner only needs to demonstrate that it is more… Read More

In Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, and Lazar v. Superior Court (1996) 12 Cal.4th 631, the Supreme Court held that an employee may recover in tort for wrongs associated with employment termination only if (1) the tort claims must be based on conduct other than that giving rise… Read More

Under Cal. Rules of Ct., rule 3.1702, a motion for award of attorney fees through judgment must be filed within the time for an appeal from the judgment.  When the case is in the superior court's limited jurisdiction, the appeal deadline is 30 days from service of notice of entry of judgment.  Here, defendant served and filed its attorney fee… Read More

Specific statutory one-way attorney fee provisions overcome Civ. Code 1717's two-way attorney fee provision.  Hence, here the prevailing used car dealer could not recover its attorney fees since plaintiff sued under consumer protection statutes with one-way attorney fee provisions, including the Magnuson-Moss Warranty Act, the Song-Beverly Act, the CLRA (which allows a fee award to the prevailing defendant only if… Read More

Damages, MICRA Limits, Combined Survival and Wrongful Death Action, Two MICRA Caps On Noneconomic Damages, 1, 1 In 2022, the Legislature enacted CCP 377.34 which for the first time allowed recovery for the decedent's pain and suffering in a survival action brought on the decedent's behalf for damages suffered before death.  That claim is entirely separate and distinct from any… Read More