California Appellate Tracker

In reaction to San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, the Legisalture amended CCP 128.5 to require in subdivision (f) that the court first find a motion, complaint or other filing to be frvolous under subdivision (a) and then not award sanctions until after a 21-day safe harbor as under CCP 128.7.  This… Read More

This decision affirms a $22,000 sanction imposed on plaintiff's counsel under CCP 128.7 for bringing a frivolous motion to lift the stay pending arbitration.  The AAA had misapplied the defendant's arbitration fee and then closed the arbitration.  When notified of its error, the AAA acknowledged that it had received the fee payment and said it would reopen the arbitration if… Read More

The trial court did not abuse its discretion under CCP 389 in concluding that residents of a mobile home park were necessary parties to the park owner's mandamus proceeding against the Santa Cruz County's rent control board.  Before that board, the residents had opposed the park owner's application for a rent increase, even presenting expert testimony regarding the owner's claimed… Read More

Landowners could not invoke Civil Code 836 recreational use immunity to bar a personal injury action by a minor female who was injured riding her motorcycle on the landowners' motocross track because the landowners' 18-year old son who lived with them had invited the plaintiff onto the property to use the motocross track.  When a child of the landowner is… Read More

The Song-Beverly Warranty Act requires new car manufacturers to provide restitution of the purchase price to the buyer of a defective car.  (Civ. Code 1793.2(d)(2)(B).)  This decision holds that if the buyer sells the defective car or trades it in on another car from a third party car dealer, the amount that the manufacturer must pay the buyer is reduced… Read More

This decision holds that CCP 351, which tolls the statute of limitations while the defendant is absent from the state, is unconstiturional as violative of the dorman Commerce Clause insofar as it tolls the statute of limitations on claims against a defendant who was a California resident when the claim accrued, but later moved permanently out of state.  Here, plaintiff… Read More

This decision reverses the trial court's denial of defendant's motion to set aside a default judgment and the underlying default under CCP 473.5 and for extrinsic mistake or fraud.  Plaintiff lent to defendant's CEO, who without authority pledged defendant's assets as collateral for the loan, which he invested in a Ghanaian scam.  Plaintiff filed suit against the CEO and defendant,… Read More

Lawyer's appeal from a contempt citation is dismissed as contempt orders are not appealable; they may only be challenged by a writ petition.  Lawyer's appeal from a sanctions order over $5,000 is appealable, but the sanctions order is affirmed.  A lawyer owes a court a duty of candor.  Here, the lawyer filed a motion to enforce a settlement.  He received… Read More

The federal Wiretap Act provides a civil cause of action to any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of 18 U.S.C. §§ 2510–2523. (18 U.S.C. § 2520(a).)  Under § 2520(e), the action must be brought no later than two years after the date upon which the claimant first has a reasonable… Read More

When the parties agree to a general reference under CCP 638, unless their agreement provides otherwise, the trial court must enter judgment in accordance with the referee's decision once it is filed with the court.  However, following entry of judgment, the court may review the referee's legal conclusions on a party's motion for new trial or to vacate the judgment. … Read More

The district court correctly abstained on Younger v. Harris grounds and dismissed this suit which sought to enjoin the Hawaii Attorney General from proceeding with a state court suit under Hawaii's UDAP statute for deceptively marketing Plavix by concealing the fact that Asians and Pacific Islanders have a genetic modification that impairs the drug's function.  The state court suit was… Read More

State Farm's 998 offer was valid and enforceable to shift costs in this case.  The signature block contained a space for signature by the attorney for the HOA, which was sufficient to identify the party in the signature line for acceptance.  Also, the 998 offer's requirement of signature on a settlement agreement releasing all claims " arising from, relating or… Read More

Under Labor Code 92(f), a forum selection clause in an employment contract is invalid and unenforceable if the contract was "“entered into, modified, or extended on or after January 1, 2017."  This decision holds that any modification of the employment contract after January 1, 2017 triggers the application of section 925, even if the modification did not affect the forum… Read More

Wastewater collection workers employed by the city to clean its sewers were not transportation workers governed by IWC Wage Order No. 7 even though their work required them to drive commercial vehicles to  clean and pump out sewers and transport refuse to collection locations.  So sanitation workers are not entitled to the meal and rest breaks mandated by Wage Order… Read More

Three principles govern the award of monetary sanctions for discovery abuse.  First, the court must award monetary sanctions against the loser of a discovery motion unless it finds that either the loser acted with substantial justification or imposition of sanctions would be unjust under the circumstances.  Second, the monetary sanctions may only be imposed based on attorney fees and costs… Read More

Under Cal. Rules of Court 3.1700, 3.1702, the time to file a memorandum of costs and a motion for attorney fees runs from service of notice of entry of judgment.  That the prevailing party had actual knowledge of entry of judgment earlier is irrelevant.  It is service of notice of entry, not actual knowledge that starts the time running.  Likewise,… Read More

Defendant entered into a 10-year lease with an automatic 10-year renewal before the prior owner of the building sold it to MES.  Even though defendant's lease was not recorded, MES took subject to the lease since it had actual knowledge of the lease before it bought the building.  (Civ. Code 1217.)  Since the lease was a conveyance expressly made effective… Read More

The litigation privilege (Civ. Code 47(b)) protects contractors that record mechanics liens from slander of title actions.  That is true even if the mechanics lien ultimately is shown to have been improperly recorded--as plaintiff here claimed it was because it was the fourth lien recorded after plaintiff had already posted a release bond.  Also, plaintiff failed to prove that defendant… Read More

The trial court abused its discretion in refusing to consider defendant's reply declarations on its Anti-SLAPP motion.  The reply declarations addressed an issue that had been raised in the original moving papers--good faith in recording tje mechanics liens in issue, but addressed a particular unanticipated argument that the plaintiff raised in opposition to the motion--that litigation could not have been… Read More

Recording a mechanics lien is protected activity under CCP 425.16(e) (the Anti-SLAPP statute) even if the lien was improperly filed.  The lawfulness of the lien is taken into consideration only during the second step of Anti-SLAPP analysis--that is in considering whether the plaintiff has shown probability of success on the merits.  So the fact that this litigation arose from defendant's… Read More