California Appellate Tracker

When  an employer modifies its employment policy to require employees to arbitrate their disputes and clearly communicates to employees that continued employment will constitute assent to an arbitration agreement, the employees will generally be bound by the agreement if they continue to work for the employer.  However, that is not true if, as in this case, an employee promptly rejects… Read More

Following Belyea v. GreenSky, Inc. (N.D. Cal. 2022) 637 F.Supp.3d 745, 756, this decision holds that the FAA preempts CCP 1281.97 (which requires a finding of material breach and waiver of arbitration if the party compelling arbitration doesn't pay arbitration fees within 30 days) because that section treats arbitration agreements and performance under them less favorably than other types of… Read More

An order withdrawing a case from arbitration for the defendant's failure to pay arbitration fees within 30 days under CCP 1281.97 is the functional equivalent of an order denying a motion to compel arbitration and so is an appealable order. Read More

That a corporation's person most qualified attests to the documents does not mean that they are therefore automatically admissible under the business records exception to the hearsay rule.  To invoke that exception, a witness must testify from personal knowledge as to the mode of preparation of the documents, among other things.  That the person is most qualified to respond to… Read More

In Kesner v. Superior Court (2016) 1 Cal.5th 1132, the Supreme Court held that an employer owes a duty of care to only the members of the employee's household to avoid secondary exposure to asbestos.  This decision holds that the same household limitation does not restrict a manufacturer's strict liability for design defects or failures to warn regarding its asbestos-containing… Read More

Monetary sanctions for discovery abuse may include attorney fees and costs that the prevailing party incurred in the meet-and-confer sessions (or any mediation or other settlement effort) undertaken before the motion to compel was filed but may not include fees or costs incurred during a mediation session held after the motion was fully briefed and awaiting oral argument. Read More

The trial court properly sustained a demurrer to this employee's FEHA claims against the district for failure to comply with the Government Claims Act.  Even if substantial compliance were allowed, the alleged facts showed no substantial compliance.  Plaintiff's complaints were filed with the wrong entities and did not state the facts needed in a proper government claim.  A second claim… Read More

Even when an arbitration agreement contains a broad delegation clause, the court must first determine whether the parties entered into the arbitration agreement.  Plaintiff who challenges the authenticity of his signature on the arbitration agreement needn't prove it is not authentic but must submit sufficient facts to create a disputed issue of fact, thus shifting the burden back to the… Read More

This decision affirms a judgment for the plaintiff in an age discrimination and harassment case, rejecting all of the employer's many arguments.  First, the suit was timely even though the harassment had been on-going for many years.  There was no showing that the harassment had achieved "permanence" so as to prevent continued accrual from renewed harassment.  Permanence comes from employer… Read More

A CCP 170.6 challenge to a judge may generally be made at any time before a trial or hearing.  The master calendar exception does not apply when a party is informed of the reassignment of the case to a different judge by a clerk's email or telephone message because the party cannot immediately respond to the new judicial assignment by… Read More

While clickwrap agreements to terms of use on a website are generally sufficient to form enforceable agreement to the website's terms of use.  However, in this case, the "I accept terms of use" button (which, if clicked on led to separate page with the terms of use) was preceded by text that said only that by clicking the boxes below,… Read More

5 U. S. C. §7703(b)(1) states that a person may appeal to the Court of Appeal from the Merit Systems Protections Board's decision, if the appeal is taken within 60 days if that decision.  This opinion holds that though mandatory, the 60-day time limit is not jurisdictional.  Apart from appeal times from district court to appellate courts, time limits are… Read More

The FAA (9 USC 3) requires a district court to stay pending court proceedings, if a party so requests, when the court compels arbitration.  Stay rather than dismissal retains court jurisdiction to aid the parties, if need be, during the arbitration and prevents interlocutory appeal of the order compelling arbitration, as Congress intended. Read More

Assuming without deciding that the discovery rule applies to extend the otherwise applicable 3-year statute of limitations on copyright infringement claims, this opinion hold that a plaintiff's damages are not limited to those suffered in the three years before suit was filed.  The statute of limitations bars untimely suit.  It does not govern damage recovery.  The Copyright Act's remedial provisions… Read More

To support a discrimination in employment claim under Title VII, the plaintiff employee must show that the employer's action (here, a job transfer) caused some harm with respect to an identifiable term or condition of employment, but that harm need not be "substantial."  Plaintiff alleged adequate harm from transfer from a prestigious unit of the police force to supervising one… Read More

Disagreeing with Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835 and following Ruiz v. Podolsky (2010) 50 Cal.4th 838, this decision holds that a medical provider's arbitration provision that complies with CCP 1295 requires the patient's survivors (who didn't sign the arbitration clause) to arbitrate their wrongful death claim based on negligent acts of a health care… Read More

Macy's 2012 employment agreement contained an arbitration clause that waived the right to bring class or collective actions and otherwise demonstrated the two-party nature of the disputes to be arbitrated.  This decision interprets the clause to require arbitration of the employee's individual PAGA claims, but not his non-individual PAGA claims.  The non-individual PAGA claims can't be dismissed, port-Adolph.  Instead, since… Read More

A district court order compelling arbitration of all of plaintiff's claims, including non-individual PAGA claims, and denying, as moot, plaintiff's request for a stay of proceedings on any non-arbitrable claims was a final decision with respect to arbitration and thus a final order appealable under 9 USC 16(a)(3). Read More

To be protected speech under CCP 425.16(e)(2), a pre-litigation communication must be connected with, or have some logical relation to litigation that is contemplated in good faith and under serious consideration.  Here, most of the emails an estranged former wife sent her ex-husband did not relate to the RICO suit she threatened to file against him.  Three of the emails… Read More

The wife of a candidate for a state assembly seat was not a limited public figure merely by being married to a candidate for public office.  Here, the only evidence of the wife's involvement in her husband's campaign was were marching with her husband, carrying a campaign sign, during the Vietnamese-American community's annual Lunar New Year parade.  That minimal involvement… Read More