California Appellate Tracker

When a partner dissociates himself from a partnership, the partnership is required buy out the interest of the dissociating partner.  Corp. Code 16701(i) provides that the trial court may, in its discretion, award attorney's and expert's fees to the prevailing party and against a party that the court finds acted arbitrarily, vexatiously, or not in good faith.  This decision holds… Read More

A trial court has discretion to consider new evidence in reply papers supporting a summary judgment motion as long as the opposing party has notice and an opportunity to respond.  Evidence which is used to fill gaps in the original evidence created by the opposition is particularly appropriate to consider in a reply. Read More

To preserve its affirmative defenses, a defendant need not file a new answer to an amended complaint that does not change the cause of action to which those defenses pertain.   When an amended complaint does not add new parties, new claims, or significant new factual allegations, the answer to the previously filed complaint suffices. Read More

The trial court held a party's attorney guilty of four counts of indirect contempt for obnoxious behavior (constantly interrupting, calling the opposition lawyer a liar, etc.) that cratered a mandatory settlement conference before a temporary judge.  This decision affirms the contempt order on only one of the four counts.  The last count (preventing the temporary judge from revealing what had… Read More

This decision affirms an order remanding this wage and hour case on the ground that the employer failed to sustain its burden of proving--in response to a factual challenge to its removal notice--that potential damages exceeded $5 million.  A plaintiff may raise a factual challenge by attacking the removing defendant's assumptions, even without providing any contrary assumptions or any evidence… Read More

A school district is not a "business establishment" for purposes of the Unruh Act (Civ. Code 51) and so cannot be sued under that act for discrimination, including discrimination forbidden by the Americans with Disabilities Act, which the Unruh Act incorporates by reference. Read More

This decision reverses a judgment confirming an arbitration award.  The arbitrator exceeded his powers by issuing an award that enforced an employment contract's provision that violated the employee's unwaivable statutory rights.  The employment agreement's confidentiality clause was so broadly written that it prohibited the employee from using any information not generally known to the securities industry for the benefit of… Read More

The district court erred in enhancing an attorney fee award after settlement of a class action.  It should not have enhanced the fee simply because the plaintiff's attorney spent many hours on the case, particularly as much of that time was spent on discovery.  Since the defendant usually cannot retaliate, there is an incentive for class counsel to run up… Read More

This case holds that when a settling defendant in a class action agrees to pay a reasonable attorney's fee to the plaintiff's attorney separately from the amount paid in settlement of class members' claims, City of Burlington v. Dague (1992) 112 S.Ct. 2638 applies, and the court may not enhance the fee award to compensate for contingency risk. Read More

CAFA's provision (28 USC 1712) limiting attorney fees in coupon settlements applies to any class action in federal court, whether filed there originally or removed there from state court, and regardless of whether the class action claims are based on federal or state law.  Parties cannot avoid section 1712 by providing that the settlement agreement is to be construed and… Read More

Disagreeing with Plancich v. United Parcel Service, Inc. (2011) 198 Cal.App.4th 308, this decision holds that Labor Code 218.5 and 1194 prescribe one-way fee and cost awards in employee suits for minimum wage and overtime pay, precluding the application of CCP 1032 and CCP 998, which only changes the normal prevailing party determination under CCP 1032.  An employer may recover… Read More

In this suit for unpaid wages, plaintiff successfully opposed defendant's motion to transfer the case to the court's limited jurisdiction division, but then failed to recover damages exceeding the limited jurisdiction's maximum.  CCP 1033 provides that when this occurs,, the court may deny the plaintiff costs, including attorney fees. Without deciding whether the fee-shifting provisions of various Labor Code sections… Read More

Under Lab. Code 515(a) and Wage Order No. 44 (Cal. Code Regs., tit. 8, § 11040), an employer need not pay overtime pay to an employee who (1) is primarily engaged in exempt duties and (2) earns “a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment."  This decision holds that "salary"… Read More

When a married couple uses community funds to acquire property with joint tenancy title, the property is presumptively held as community property if acquired after January 1, 1975.  (See Fam. Code 760.)  The spouses hold joint tenancy interests in property acquired before 1975 as separate property.  For joint tenancy property acquired between January 1, 1975, and December 31, 1984, the… Read More

The FDCPA's bona fide error defense does not allow debt collectors to avoid liability by contractually obligating creditor-clients to provide accurate information, nor by requesting that creditor-clients provide notice of any errors in an account assigned for collection without waiting to receive a response to the request before instituting collection efforts. Read More

Under Nev. Rev. Stat. 116.3116, a homeowner's association is allowed a superpriority lien for certain HOA dues and maintenance expenses.  This decision holds that the statute does not offend the US Constitution's Takings Clause since no governmental entity takes the value of liens subordinated to the HOA's superpriority lien.  It also holds that the statutory notice of foreclosure sent by… Read More

In Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, the Supreme Court held that in the employment context, Bus. & Prof. Code 16600 is to be strictly enforced, prohibiting enforcement of any noncompetition clause except in circumstances that are exempted by B & P Code 16601, 16602 or 16602.5.  However, this case holds that outside the employment context, and… Read More

Plaintiffs alleged that defendant had agreed to cremate plaintiff's two dogs individually, but sent them random ashes rather than those of their dogs.  Plaintiffs sought to recover for the emotional distress they suffered as a result.  Held:  Plaintiffs didn't state a breach of contract claim as their vet, not they, had contracted with defendant, but on remand plaintiffs should be… Read More

The complaint in this case adequately alleged loss causation based on a stock price drop after the New York Post ran an article about BofI revealing, based on information it obtained through FOIA requests, that the SEC was investigated BofI for money laundering.  The article was close enough to a contradiction of BofI's denial of knowledge of any investigation.  The… Read More

In a poorly lawyered case, this decision affirms an order denying a motion to compel arbitration, holding that the trial court properly held the arbitration clause was unconscionable.  It was procedurally unconscionable because it was a form contract presented to the patient only moments before the laser hair removal operation in a large stack of other paper she didn't have… Read More