California Appellate Tracker

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

An arbitration clause that stated both parties waived the right to bring a class action, act as a private attorney general or join claims of other persons in arbitration or in court did not offend McGill.  At least given the 9th Circuit's view that the FAA preempts Broughton and Cruz, the arbitrator could award public injunctive relief since McGill makes… Read More

Following n Hill v. Superior Court (2016) 244 Cal.App.4th 1281 and Kerley v. Weber (2018) 27 Cal.App.5th 1187, and disagreeing with Levin v. Winston-Levin (2019) 39 Cal.App.5th 1025, this decision holds that double damages may be awarded under Probate Code 859 without a finding of bad faith if the defendant has taken or concealed property of a dependent adult, a… Read More

Plaintiff contracted mesothelioma, allegedly from asbestos-concrete pipe manufactured by defendant, a successor to Johns Manville's asbestos-concrete business.  A $15 million punitive damage award is reversed for lack of evidence that an officer, director or managing agent of defendant acted with malice, oppression or fraud or authorized or ratified any conduct.  Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115 doesn't… Read More

Brown, a teacher, complained that the electro-magnetic waves emanating from the new wi-fi system installed in her school caused her chronic pain, headaches, nausea, itching, burning sensations on her skin, ear issues, shortness of breath, inflammation, heart palpitations, respiratory complications, foggy headedness, and fatigue.  She reported her symptoms to the school, which initially gave her the option of having it… Read More

The Biomaterials Access Assurance Act (“BAAA”), 21 U.S.C. § 1602(1)(A) immunized defendant, the manufacturer of a portion of a hip replacement prosthesis from liability that arose when a portion of the prosthesis supplied by defendant broke after implantation, requiring a new surgery and replacement.  The act provides immunity for those supplying parts of a human implant. Read More

A PAGA suit under Lab. Code 2988 may be brought against the employer in any county in which an aggrieved employee worked and a Labor Code violation was allegedly committed.  The private plaintiff need not bring the action in the county in which he worked or where the violations against him occurred. Read More

Deputy sheriffs arrested Collins, thinking he was drunk and interrupted the paramedics' review of his medical condition.  When Collins was finally seen by a doctor, he was misdiagnosed.  As a result of the poor medical treatment, Collins suffered extensive injuries.  This decision holds that (1) despite having probable cause to arrest Collins, the deputies can be liable in negligence for… Read More

A release that ratepayers were required to sign in order to obtain a partial rebate of illegal water charges was enforceable.  The city did not fraudulently conceal facts from ratepayers.  Its FAQs said the partial refund was due to the statute of limitations barring claims for any greater refund and revealed that the overcharges had been assessed for a longer… Read More

Civil Code section 1668 is meant to prohibit contracts releasing liability for future torts  not to prohibit settlements of disputes relating to past conduct. Accord: Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1587, fn. 12. Read More

Under CCP 1281.91(b), a party has an absolute right to disqualify a neutral arbitrator (once) without cause if done within 15 days of the arbitrator's providing the parties the disclosures required by CCP 1281.9.  This decision holds that the right to peremptorily disqualify a neutral arbitrator under section 1281.91 is not waivable in advance so that defendant could disqualify the… Read More

The Ninth Circuit applies the abuse of discretion standard of review to review a summary judgment in a trademark infringement case if the summary judgment is granted on equitable grounds such as unclean hands, laches or acquiescence. Read More

A student is entitled to notice and an opportunity to be heard before a written disciplinary reprimand is placed in his student file.  However, the student is not entitled to a trial type hearing or to confront and cross-examine witnesses against him when such a low level of discipline is imposed.  A trial-like hearing would impose too great a burden… Read More

The Motor Vehicle Franchise Contract Arbitration Fairness Act (15 USC 1226) creates a narrow exception to the Federal Arbitration Act, banning arbitration (without both parties' post-dispute consent) of claims arising from a motor vehicle franchise contract, which it defines to mean a contract under which the franchisee both sells and services motor vehicles.  Vehicle Code 11713.,3(g) contains the same terms… Read More

The trial court abused its discretion in denying private attorney general fees under CCP 1021.5 to plaintiff who had prevailed on appeal, in a published decision, in reversing the defendant college's decision to expel him for having supposedly committed a sexual assault on another student.  The published appellate decision held that the college had failed to conduct the disciplinary proceedings… Read More

Under CCP 685.040, attorney fees incurred in enforcing a judgment may be recovered if the judgment includes an award of attorney fees pursuant to contract.  This decision holds that a judgment that awards attorney fees, suffices to allow an award of attorney fees incurred in enforcing the judgment even though neither the judgment nor any post-judgment order set an amount… Read More

This decision affirms a judgment against the plaintiff holder of the first deed of trust on a Nevada dwelling that was foreclosed upon by the homeowners association for nonpayment of association dues.  The decision holds that the CC&R clause that expressly subordinated the association's lien for unpaid dues to the first deed of trust did not render the foreclosure sale… Read More

Defendant paid its nurse employees a regular hourly wage plus a fixed $35 per diem for employees working more than 50 miles from home.  This decision holds that the per diem sum is regular wages, not reimbursement for travel and other expenses and so must be included in the employees' regular pay when computing the 150% of regular pay to… Read More

Following Mejia v. DACM, Inc. (2020) 54 Cal.App.5th 691, this decision affirms an order denying a motion to compel arbitration.  As in Mejia, this decision distinguishes Clifford v. Quest Software Inc. (2019) 38 Cal.App.5th 745, saying it involved only the defendant's employees, not the broader public which this suit sought to benefit by an injunction against defendant's allegedly unfair practices… Read More

The trial court properly awarded Attorney General Becerra attorney fees under CCP 1021.5 for successfully defending this lawsuit which produced an earlier published opinion holding that Gov. Code 12503's requirement that the candidate for Attorney General must have been admitted to practice for five years before the election was satisfied by inactive as well as active membership in the State… Read More