California Appellate Tracker

(Snapchat, Facebook, and Instagram are not electronic communication services (ECS) or remote computing services (RCS) for purposes of the Stored Communications Act (18 USC 2510, 2711) which prohibits ECS or RCS disclosure of stored communications even pursuant to subpoena in a criminal case.  Those websites do not just transmit messages for their subscribers or store their information for backup purposes… Read More

(Arbitration agreements signed by family members of persons admitted to elder care facilities are not binding on the persons so admitted absent evidence showing that those who signed the arbitration agreements had actual or apparent authority to act for the admittees.  The signers' statement that they had such authority is insufficient to create or evidence an agency relationship.  Nor can… Read More

(Agreeing with Moran v. Prime Healthcare Management, Inc. (2023) 94 Cal.App.5th 166 and not Torres v. Adventist Health System/West (2022) 77 Cal.App.5th 500 and Naranjo v. Doctors Medical Center of Modesto, Inc. (2023) 90 Cal.App.5th 1193, this decision holds that a plaintiff cannot state an actionable UCL or CLRA claim based on emergency room management fees charged by hospitals if… Read More

Attorneys Fees, Fee Agreement, Flat Fee Earned Only When Work Is Done, 1, 7 Under Rule of Professional Conduct 1.5, an attorney fee agreement may not provide that money paid toward fees is non-refundable or earned upon receipt unless the fee is a true retainer, properly disclosed as payment solely for the lawyer's availability to perform work for the client. … Read More

(Plaintiff enforced an important public right in its suit to enjoin the school district from implementing a COVID-19 vaccination requirement for students which was preempted by state law adopting a comprehensive statewide school immunization policy with new immunization requirements imposed only by the state Department of Public Health, not individual school districts.  The published appellate decision in the case enforced… Read More

(Fire insurance policies must be written on the statutory form that includes a one-year from inception of loss (semi-contractual) statute of limitations.  (Ins. Code 2071.)  This one-year limitations period applies only to actions on the policy to recover any claim.  This decision holds that this one-year limitations period does not apply to a UCL action seeking only declaratory and injunctive… Read More

Arbitration, Defenses To, Unconscionability, Attorney Fees to Prevailing Defendant, 1, 7 In this FEHA employment discrimination case, the court holds the employer's arbitration clause was substantively unconscionable because (1)  the clause lacked mutuality because it excluded most claims the employer would likely bring but required arbitration of most likely claims by an employee, (2) it required the employee to demand… Read More

(McKown v. Wal-Mart Stores Inc. (2002) 27 Cal.4th 219 did not create a separate exception to Privette v. Superior Court (1993) 5 Cal.4th 689 immunity for cases in which the hirer supplies unsafe equipment for use by a contractor or subcontractor.  Instead McKown is a particular application of the Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 exception for… Read More

Tait v. Commonwealth Land Title Ins. Co. (2024) 103 Cal.App.5th 271 The measure of damages against a title insurer for an owner's actual loss when there is a cloud on title is measured by the diminution in market value caused by the existence of the cloud.  Actual loss is determined by the property's highest and best use (as determined by… Read More

An employee is entitled to FMLA leave if he has “a serious health condition that makes the employee unable to perform the functions of the position.” 29 U.S.C. § 2612(a)(1)(D).  This decision holds that an employer may defend a claim by the employee by introducing evidence--other than a medical expert's opinion--to show that despite the employee's medical expert's contrary opinion,… Read More

A party seeking to vacate an arbitration award must do so by filing a petition to vacate within 100 days after service of the arbitration award or within 10 days after service by the opposing party of its petition to confirm the award.  The party seeking to vacate the award must comply with both time limits, so a response or… Read More

The Federal Food Drug and Cosmetic Act proscribes labeling the front of baby food containers with the product’s nutrient content. However, the federal act does not grant any private right of action for violation of that proscription.  However, California's Sherman Law copies the federal labeling proscriptions and does grant a private right of action for violations.  This decision holds that… Read More

Defendant could not properly remove this suit under 28 USC 1442, the federal officer removal statute.  The suit alleged that defendant's privately developed and operated patient portal website improperly allowed tracking by Google and Meta, thus breaching plaintiffs' privacy rights.  The mere “fact that a federal regulatory agency directs, supervises, and monitors a company’s activities in considerable detail the defendant's… Read More

The district court correctly denied defendant's Anti-SLAPP statute motion to dismiss.  The case fell within the public benefit suit exception under CCP 425.17(b).  Plaintiff sued on behalf of a class alleging that defendant's use of her name and contact information which defendant made accessible for free by prospective customers to promote the D&B Hoovers database (along with all the rest… Read More

Rajaram v. Meta Platforms, Inc. (2024) 105 F.4th 1179 (42 USC 1981 provides that all persons within US jurisdiction are entitled to the same right to  make and enforce contracts as is enjoyed by white citizens.  This decision holds that plaintiff, a US citizen, states a claim for violation of section 1981 by alleging that defendant discriminates against US citizens… Read More

The probate court correctly held that the decedent's emails and electronic answers to a questionnaire did not validly amend her revocable trust before her death.  The decedent did not sign the electronic writings.  And the Uniform Electronics Transactions Act (Civ. Code 1633.2 et seq.) did not apply to treat her electronic writings as "signed."  The UETA applies only to transactions… Read More

Disagreeing with Garcia v. Expert Staffing West (2021) 73 Cal.App.5th 408, this decision holds that a joint employer cannot enforce the arbitration clause in a temporary staffing agency's agreement with the worker that the joint employer hired through the agency--at least when, as in this case, the worker sues only the joint employer and solely for Labor Code violations.  Such… Read More

The FEHA does not protect a female employee against discrimination or harassment for undergoing oocyte (egg) retrieval procedures to donate eggs to others or freeze them for her own future use.  At least if those medical procedures are not needed to overcome infertility or some similar medical condition, they are not pregnancy or pregnancy-related, nor a disability and so are… Read More

Following Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, this decision holds that in the employment context, an arbitration agreement statement that arbitration is to be conducted under AAA or JAMS rules is not sufficient to delegate arbitrability issues to the arbitrator.  The decision also holds that CCP 1281.98, which allows a nondrafting party to avoid arbitration if the drafting… Read More

Following County of Los Angeles v. Superior Court (2012) 209 Cal.App.4th 543, this decision holds that a county does not owe any mandatory duty to prosecute a dog as dangerous or a nuisance or confine it to investigate whether it has rabies--after it has bitten one human.  Hence, the next person bit by the dog cannot recover from the county… Read More