California Appellate Tracker

Four requirements must be met to trigger the federal two-dismissal rule (FRCivP 41(a)(1)(B)): (1) the plaintiff voluntarily dismissed an action in either state or federal court, (2) thereafter the plaintiff voluntarily dismissed an action pending in federal court, (3) the two dismissals concerned the same claim, and (4) the plaintiff seeks to raise the twice-dismissed claim again in federal court. … Read More

Employee's pre-suit letter to the employer's HR department was protected by the litigation privilege even though the letter did not expressly threaten suit.  By the time, plaintiff had complained many times to management without redress and had hired a lawyer.  She also submitted a declaration attesting that she was seriously contemplating suit at the time she sent the letter. Read More

(Plaintiff's letter written to defendant's HR department shortly before plaintiff sued for wrongful termination was protected activity under CCP 415.16(e).  Plaintiff's boss failed to show that the letter fell within the narrow Flatley v. Mauro (2006) 39 Cal.4th 299 exception for patently illegal conduct.  Here, plaintiff disputed the boss' assertion that plaintiff had threatened to defame him to his superiors… Read More

Consumer Protection, Warranty, Song-Beverly Act, Repair or Refund Remedy, Used Car, Unexpired Warranty, 1, 10 The Song-Beverly Act's replace-or-refund remedy applies only to unrepaired defects in new cars, which the Act defines to include dealer owned and demonstrator cars or other motor vehicles sold with a manufacturer’s new car warranty.  (Civ. Code 1793.22(e)(2).)  This decision holds that a car which… Read More

Employment, Wage & Hour, Public Employers Not Covered By Labor Code, 1, 8 Public employers such as the hospital authority defendant in this case are exempt from Labor Code provisions governing meal and rest breaks (§§ 226.7, 512) and related statutes governing the full and timely payment of wages (see § 220, subd. (b)) as well as from PAGA penalties… Read More

Summary judgment was properly granted to defendant in this slip and fall case.  Under Gov. Code 830 and 835, a governmental entity is liable for injuries caused by a dangerous condition of property only if the condition was caused by the entity's negligence or the entity had actual or constructive knowledge of the condition.  Here, plaintiff slipped on an ice… Read More

A prescriptive easement requires proof that the use of the easement was hostile and adverse to the owner of the property crossed by the easement, while express easement and easement by implication require proof of that property owner's express or implied consent to the easement.  Here, the trial court's statement of decision found that plaintiff had proved an easement by… Read More

In this asbestosis case, the trial court erred in granting a directed verdict against defendant's sophisticated user defense.  Plaintiff was the owner and operator of a small auto repair shop.  He was required to be knowledgeable about and remediate health risks to the workers he employed.  He admitted he was aware of OSHA requirements regarding asbestos in car brakes.  There… Read More

The trial court erred in handling the allocation of fault issue in this asbestosis case.  It should have included on the special verdict form all parties potentially liable for causing plaintiff's exposure to asbestos, including asbestos-containing joint tape manufacturers as well as auto brake manufacturers.  Plaintiff was an auto repairman but admitted that he had been present during a home… Read More

This decision holds that federal law banning cultivation of cannabis preempts California law legalizing its cultivation.  Hence, the county erred in granting a conditional use permit allowing a private party to use property to grow cannabis.  The neighbor who objected to use of the easement over his property to transport the cannabis wins. Read More

Agreeing with Limon v. Circle K Stores, Inc. (2022) 84 Cal.App.5th 671, this decision holds that to have standing to sue in California state court, a plaintiff must have a beneficial interest in the claim and that the beneficial interest test duplicates the federal Article III injury in fact requirement.  Informational injury--in this case not providing a statutorily mandated disclosure--does… Read More

Deciding an issue left open in Barefoot v. Jennings (2020) 8 Cal.5th 822, this decision holds that heirs who would take by intestate succession have standing to sue in probate court to invalidate a trust disposing of the decedent's estate to a third party on the ground of undue influence, lack of capacity, and forgery.  Probate Code 17200 states that… Read More

This decision affirms a summary judgment against most of plaintiff's claims which arose from his ouster from an LLC after he circulated a letter to potential investors in the LLC falsely claiming that it was engaging in criminal activity.  Since the LLC needed to raise capital through private offerings, the letter harmed the LLC, providing a rational basis for ousting… Read More

This decision affirms a judgment after a court trial on plaintiff's claim for restitution to avoid what he claimed was an inequitable forfeiture of his interest in an LLC.  It finds that the loss of the plaintiff's interest was justified by the nature of his breach of the LLC agreement and that he had not suffered an inequitable loss since… Read More

After a good general discussion of the shifting burden on proving the opposing party agreed to the arbitration agreement, this decision affirms the trial court's order denying defendant's motion to compel arbitration.  Defendant tried to establish that the 90-year-old plaintiff had agreed to a home repair and accompanying loan agreement by showing his electronic signature on the repair contract and… Read More

In federal courts, even on claims governed by state law, costs are governed by 28 USC 1920.  Since it states expressly that costs may be awarded in the district court's discretion, section 1920 preempts state laws that award costs to the prevailing party as a matter of right.  Here, the district court erred in applying such a Nevada law to… Read More

To qualify for the public interest exemption to the Anti-SLAPP statute (CCP 425.17(b)), the “action, as opposed to a cause of action, must be brought solely in the public interest.”  If any portion of the lawsuit contravenes section 425.17, subdivision (b), then the public interest exemption does not apply at all. Here, a suit against a water board and its… Read More

Jurisdiction, Standing, Factual Challenge, Standing Intertwined with Merits, 2, 10 Plaintiff claimed that defendant's Banana Boat sunscreen products contained small amounts of benzene which were harmful.  Defendant moved to dismiss for lack of Article III standing, claiming plaintiff had suffered no injury in fact because the minute amounts of benzene in its products were harmless.  Defendant supported its argument with… Read More

WL 4352615  (A debtor who has filed a Chapter 13 proceeding has an absolute right to voluntarily dismiss the bankruptcy case so long as it has not been converted into a case under a different chapter.  (11 USC 1307(b).)  This is true even if the debtor filed the Chapter 13 in bad faith or was not qualified to file a… Read More

Applying the Rowland  v. Christian (1968) 69 Cal.2d 108 factors, this decision holds that while it was foreseeable that motorists on the SR 99 four-lane highway might be injured by colliding with a tree on Union Pacific's adjoining property that was 20 ft. from the right-hand lane, the public policy related Rowland factors outweighed foreseeability of harm.  Requiring owners of… Read More