California Appellate Tracker

Following the en banc decision in In re Hyundai & Kia Fuel Econ. Litig. (Espinoza v. Ahearn) (9th Cir. 2019) 926 F.3d 539, this decision holds that the district court did not abuse its discretion in avoiding a detailed analysis of varying applicable state laws in certifying a setlttement-only class in this case.  That was particularly true as one of… Read More

Santa Clara University is not a state actor and so cannot be sued for violation of 42 USC 1983 in firing one of its professors.  It did not become a state actor merely because it isrequired by generally applicable civil rights laws to ameliorate sex or other forms of discrimination. Nor does its receipt of federal and state funds conditioned… Read More

An employee cannot be compelled to arbitrate a PAGA claim even though he signed an arbitration agreement with his employer.  The PAGA claim is a suit by the state which did not agree to arbitrate its claim.  Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612 does not call this rule into question. Read More

California does not allow recovery of damages for the shortened life expectancy caused by plaintiff's contracting a disease from the defendant's product.  And, in awarding damages for pain and suffering, the jury may only award such damages during the period the plaintiff is actually expected to live due the contracted disease. Read More

This decision affirms a jury verdict against Monsanto for products liability for failure to warn of the risk that Roundup's genotoxicity may cause non-Hodgkins lymphoma.  A manufacturer must warn of risks that are merely possible, not probable.  Here, even if the studies linking Roundup to lymphoma represented the minority view on the subject, Monsanto had a duty to warn of… Read More

This decision affirms a jury verdict against Monsanto for design defect liability due to Roundup's genotoxicity which can cause non-Hodgkins lymphoma.  The trial court properly submitted the case to the jury under the consumer expectations test of design defect.  Much expert testimony was needed to prove that Roundup caused lymphoma.  But no expert testimony was admitted on what a consumer… Read More

As part of a settlement of a prior wage and hour lawsuit, employee signed an arbitration agreement with employer.  Four years later, plaintiff brought this PAGA claim against employer.  This decision affirms an order denying the employer's motion to compel arbitration.  The State of California is the real party in interest in a PAGA action.  It did not sign the… Read More

Under Ins. Code, § 11580.2(f), disputes between insureds and insurers over the amount due under the uninsured or underinsured motorist coverage in an auto policy must be submitted to arbitration, which, however, is limited to the questions of whether the insured is entitled to recover damages from the uninsured or underinsured motorist and the amount of the insured's damages.  CCP… Read More

Travelers insured several subcontractors who worked on two subdivisions developed by Pulte.  As required by their subcontracts, Pulte was made an additional insured under their Travelers policy.  When Pulte was sued for construction defects in the two subdivisions, Travelers provided a defense.  Later, it intervened to sue other subcontractors to recover its defense costs on an equitable subordination theory.  This… Read More

An employer's arbitration agreement said that the employer and employee agreed to arbitrate all claims arising from the employment relationship, including class action claims and in the next sentence stated that the employee waived the right to participate in any class action lawsuit.  This decision holds that the agreement unambiguously required the parties to submit class action claims to arbitration. … Read More

A trustee is not deemed to have abandoned property of the estate under 11 USC 554(c) on closure of a bankruptcy case unless that property has been scheduled.  Here, the bankrupt described his then-pending lawsuit against his home loan servicer in his statement of financial affairs and discussed the case with his bankruptcy trustee but did not list the lawsuit… Read More

A bankruptcy court may retroactively annul the automatic stay so as to validate actions taken before the order annulling the stay. This remains true even after Roman Catholic Archdiocese of San Juan, Puerto Rico v. Acevedo Feliciano (2020) 140 S. Ct. 696, which held that a federal district court could not retroactively remand a case to state court to validate… Read More

This decision upholds an employer's arbitration clause in the employment agreement of a relatively high-level employee against the employee's argument it was unconscionable.  It finds no evidence of procedural unconscionability, carefully distinguishing OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111 on its facts.  Here, the employer did not rush the employee but encouaged him to seek legal advice.  Also, the… Read More

Following Clifford v. Quest Software Inc. (2019) 38 Cal.App.5th 745, this decision holds that an employer's arbitration clause could not avoided as unconscionable or contrary to public policy under McGill v. Citibank, N.A. (2017) 2 Cal.5th 945 because the employee's wage and hour complaint did not seek a public injunction, but only relief for a small group of employees, including… Read More

A hiker on a trail in a public park's optional-leash area for dogs did not assume the risk that she would be injured by another hiker's unleashed dog.  The park's rules for the area required unleashed dogs to be under their owners' control at all times and created a presumption that the dog was not under the owner's control if… Read More

A non-attorney did not engage in the unauthorized practice of law by filling out and filing an application and renewal of judgment form to renew a judgment of which he and several other individuals were judgment creditors.  The task was clerical in nature, not legal.  Choosing the right form is simple.  There's only one Judicial Council form for the task. … Read More

This decision holds that the California Arbitration Act (and CCP 1282.6) do not authorrize an arbitrator to issue a subpoena for documents from a third party for discovery purposes, as opposed to for production at the arbitration hearing.  At least, that is true if, as in this case, the arbitration agreement did not invoke the expanded discovery procedures allowed under… Read More

When an arbitrator issues an order directing a third person, not a party to the arbitration, to provide discovery at the request of one of the arbitrating parties, the third person must first object before the arbitrator.  If unsuccessful there, the third person may petition the superior court to vacate the arbitrator's decision on the discovery matter.  In that court,… Read More

In 5 U.S.C. § 5520a(b), the federal government waived its sovereign immunity and subjected a federal employee’s pay to “legal process in the same manner and to the same extent as if the agency were a private person.”  Here, defendant secured a judgment against plaintiff in California and garnished his federal wages by an order issued by the California court. … Read More

In this wrongful death action, the trial court properly granted Kaiser summary judgment based on the going and coming rule.  Kaiser's volunteer had finished providing dog therapy to one of Kaiser's patients and was returning home when the volunteer struch and killed plaintiffs' decedant.  The required-vehicle exception to the going and coming rule did not apply because there was no… Read More