California Appellate Tracker

The trial court did not abuse its discretion in declining to apportion plaintiff's attorney fees between the Song-Beverly Act claim (on which fees were awardable by statute) and the fraudulent concealment claim (a non-fee-bearing claim) since the two claims were based on a common set of facts.  In selecting a 2.0 multiplier on fees, the trial court did not improperly… Read More

This decision reverses a judgment for fraudulent concealment of an alleged defect in a car because there was no substantial evidence that before the plaintiff bought the car (thus allegedly relying on the concealment) the defendant knew of the alleged defect and that it was unable or unwilling to fix it.  However, the decision also affirms the judgment for plaintiff… Read More

When an employer’s no-fault absenteeism policy provides that an employee may clear absences that otherwise would count for purposes of disciplinary action by working (or being available to work) during a certain clearance period, the employer does not violate the California Family Rights Act (Gov. Code 12945.2) by extending the absence clearance period by the number of days the employee… Read More

Once the attorney-client privilege has been established, the trial judge or counsel for any party may not comment on the fact that a party or witness has exercised the privilege.  (Evid. Code 913(a).)  Moreover, the trier of fact may not draw any inference from a witness’s invocation of a privilege.  The court must so instruct the jury upon request.  (Ibid.)… Read More

Applying Semtek Internat. Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, this decision holds that a federal district court's dismissal of a 42 USC 1983 claim on the ground it was precluded by the res judicata effect of a state administrative decision denying her claim is not a final judgment entitled to claim preclusive effect under federal common law. … Read More

Federal common law governs the effect of a federal court's judgment on federal law claims (Taylor v. Sturgell (2008) 553 U.S. 880, 891) whereas state law governs the res judicata effect of a federal court's judgment on state law claims when exercising diversity jurisdiction (Semtek Internat. Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, 507).  It is unclear which… Read More

A preliminary injunction properly issued to require Uber and Lyft to stop misclassifying their drivers as independent contractors.  Under the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 and AB5 (Lab. Code 2775), one who provides labor or services for pay is presumed to be an employee unless the hiring entity proves all… Read More

When a government entity sues and seeks a preliminary injunction to halt violation of a statute, it need only show a reasonable probability of success on the merits, and then a rebuttable presumption arises that public harm from the violation outweighs harm to the defendant from the injunction. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63.)  To overcome… Read More

Defendant, a vision insurance provider, terminated plaintiff, an optometrist, for using unapproved lens suppliers for defendant's patients.  Defendant's network doctor agreement provided for a two-step review process of disputes, including those over termination under these circumstances.  The first step was review by a three-member panel, the second step was arbitration.  This decision holds that this two-step process does not violate… Read More

Plaintiff was injured while working on a rescue boat owned by defendant.  Plaintiff did not file a timely government claim within 6 months of his injury, but did file a timely application for permission to present a late claim, within one year of the injury.  Defendant's response to the application stated that it had denied plaintiff's claim, not his application,… Read More

Ocwen, a mortgage loan servicer, periodically reviewed credit reports of borrowers who had received bankruptcy discharges of personal liabiity on debts secured deeds of trust on their homes.  This decision holds that Ocwen did not violate the Fair Credit Reporting Act by doing so.  Ocwen had a permissible pupose in trying to determine whether the borrowers qualified for an alternative… Read More

The FELA (45 U.S.C. § 55) invalidates any contractual provision “the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act [FELA]."  However, a release provided in settlement of a specific liability claim is enforceable. (See Callen v. Pennsylvania R. Co. (1948) 332 U.S. 625, 631.)  Federal courts… Read More

Live Nation held a music festival with 65,000 attendees.  Live Nation knew that illicit drug use by attendees was a significant risk and took some measures to prevent it and to provide hydration, security and medical care.  This decision holds that Live Nation had a special relationship with the festival attendees and owed them a duty of care with respect… Read More

Before enactment of Civ. Code 1009(b) in 1972, an offer to dedicate private land to public use could be implied by law when the public used the land openly and continuously, as if the users believed the public had a right to do so, without objection by the landowner.  This decision affirms a decision denying a claim to quiet title… Read More

Defendant's arbitration clause required arbitration of disputes "to the fullest extent permitted by law."  It also contained a class action waiver.  The "fullest extent" provision did not, on its face, preclude court litigation of public injunction claims, and so did not violate McGill.  But in federal court. plaintiff also had to establish Article III standing to proceed on the public… Read More

Stover signed up for a credit score program with Experian in 2014, cancelling her subscription the same year.  That year's clickwrap agreement, to which Stover assented, included both a broad arbitration clause encompassing all disputes “to the fullest extent permitted by law,” and a change of terms clause, stating that Stover would be bound by changed terms if she used… Read More

This decision holds that while a trial court does not lose jurisdiction to amend or vacate an interlocutory order simply because a Court of Appeal has issued an order to show cause in response to a mandate petition, the trial court should generally not do so since the Court of Appeal's issuance of an OSC rather than an alternative writ… Read More

Under CCP 446(a), a defendant must file a verified answer to a complaint filed by the state, a county or certain other governmental agencies  “unless an admission of the truth of the complaint might subject the party to a criminal prosecution."  This decision holds that a defendant corporation is a "party" entitled to file an unverified answer under the quoted… Read More

This decision reverses an order granting defendants equitable relief from a default and default judgment.  A court’s ability to grant relief under its inherent equitable power is narrower than its ability to grant relief under CCP 473(b)  Equitable relief from a default judgment may be granted only in exceptional circumstances, and the party moving for such relief must make a… Read More

The trial court properly denied the defendant employer's motion to compel arbitration of plaintiff's "standing" to bring the PAGA action he filed against the employer.   Requiring plaintiff to arbitrate whether he was an “aggrieved employee” with standing to bring a representative PAGA action would require splitting that single action into two components: an arbitrable “individual” claim (i.e., whether he was… Read More