California Appellate Tracker

The trial court did not abuse its discretion in holding that plaintiff could not have validly entered into a contract with an arbitration clause when the contract was 21 pages, the review period was 38 seconds and through a cell phone, and plaintiff was 81 years old with virtually no technological ability. Furthermore, plaintiff's income was limited; she was careful… Read More

When an adult child is an insured under the parents' auto insurance policy, the insurer must give the adult child as well as the parents (who are the policyholders) notice of cancellation or nonrenewal.  Absent advance notice properly given, the insurance continues in effect despite the insurer's attempt to cancel it. Read More

When a party has waived the right to a jury trial by one of the acts or omissions listed in CCP 631, it may still seek relief from that waiver under CCP 631(g).  A trial court exercises discretion in ruling on such a motion and need not grant the motion merely because granting the motion will not cause hardship to… Read More

An action to rescind a contract for fraud is an action on the contract for purposes of Civil Code 1717.  Section 1717 is not limited to actions for breach of contract or seeking to enforce the contract.  A party is entitled to attorney fees under section 1717 even when the party prevails on grounds the contract is inapplicable, invalid, unenforceable… Read More

Choice of law clauses in maritime contracts are presumptively enforceable as a matter of federal admiralty law just as forum selection clauses in those contracts are generally enforceable.  Choice of law clauses in maritime contracts are unenforceable only when they contravene a federal statute or conflict with established federal maritime policy or when the parties cannot furnish a reasonable basis… Read More

Plaintiff tried to refinance her Wells Fargo home loan with another lender but that effort was thwarted by a fraudulent third party's lien on the property.  Plaintiff contends that Wells Fargo should have helped her remove the fraudulent lien, but instead it started foreclosure proceedings on her loan.  She filed a Chapter 13 bankruptcy to avoid the foreclosure and listed… Read More

Proposition 244, the California Privacy Rights Act of 2020, clearly mandated that the new privacy agency had to promulgate regulations in 15 areas by July 1, 2022.  It also provided that the agency could begin enforcing the Act on July 1, 2023.  The agency didn't promulgate final regulations until 9 months after the deadline.  This decision holds that the trial… Read More

This decision affirms a JNOV in a case where plaintiff was injured by two dogs kept by a subtenant in a building owned by the defendant landlord.  The decision finds that the trial court was correct in holding that there was no substantial evidence that the landlord actually knew of the dogs' dangerous propensities.  The landlord's receipt of an email… Read More

Unless Congress clearly states otherwise, it is presumed not to have waived sovereign immunity.  This clear statement rule requires either an express statement that Congress is stripping away sovereign immunity or a statute that creates a cause of action and explicitly authorizes suit against a government entity on that cause of action.  The FCRA waives sovereign immunity by the latter… Read More

Contrary to prior Second Circuit rulings, this decision holds that a plaintiff alleging retaliation in violation of the Sarbanes-Oxley Act's provision (18 U. S. C. §1514A(a)) prohibiting retaliation against employees for engaging in protected whistleblowing activity need not plead or prove that the retaliating employer acted with retaliatory intent.  The employee's prima facie case need merely show that his protected… Read More

46 U.S.C. § 30527(a) provides that a owner "of a vessel transporting passengers between ports in the United States" cannot contract for a release of liability for negligently caused injiury or death due to the owner's or its employees' negligence.  This decision holds that the statute does not apply to forbid enforcement of a release obtained by the owner of… Read More

Under 28 USC 1292(a)(3), a federal court of appeals has jurisdiction over appeals from a district court's interlocutory decree determining the rights and liabilities of the parties to the admiralty cases in which appeals from final decrees are allowed.  This decision holds that the provision allows an interlocutory appeal from an order denying summary judgment based on the waiver the… Read More

If the revocable trust instrument specifies a method for modification, the trust may be modified via the Probate Code section 15401 procedures for revocation, including the statutory method, unless the trust instrument provides a method of modification and explicitly makes it exclusive, or otherwise expressly precludes the use of revocation procedures for modification.  (Prob. Code 15402.) Read More

Under 9 USC 9, a notice of motion to confirm an arbitration award may be served on a party resident in the forum district by the means used to serve an ordinary motion.  If the party is not a resident of the forum district, service must be by the marshall of the district in which the party resides, in the… Read More

9 USC 203 vests federal district courts with subject matter jurisdiction over motions seeking to confirm non-domestic arbitral awards.  Non-domestic arbitral awards include all arbitral awards involving at least one foreign party.  Since Gussi was a Mexican corporation, the district court had jurisdiction to hear Voltage's motion to confirm the arbitration award against Gussi. Read More

Federal statutes are presumed to apply only domestically--within the US's territorial jurisdiction. The presumption is applied in a two-step framework.  First, the court asks if Congress has affirmatively and unmistakably instructed that the provision at issue should apply to foreign conduct. Second, if Congress has not done so, the court asks whether the suit seeks to apply the statute domestically… Read More

Under Gov. Code 12965(b), (c)(6), the award of attorney fees and costs to a prevailing defendant in a FEHA case is discretionary but governed by the rule that the defendant may recover fees and costs only when the claim was frivolous.  This decision holds that since the trial court must exercise its discretion, the prevailing defendant cannot claim costs by… Read More

An implied easement may be recognized and enforced even though it precludes most uses by the owner of the servient tenement in the area covered by the easement.  Here, one owner held two adjoining lots, built a house on one lot with a driveway framed by a brick planter area on the house side and a fence on the far… Read More

Under Ins. Code 2071.1, an insured who is asked to submit to an examination under oath by a property insurer has, among others, the right to make a recording of the entire proceeding.  This decision holds that the statute allows the insured to videotape both the insured and the insurer's personnel during the examination. Read More

Under W&I Code 15657.03, a court may issue a restraining order to prevent abuse of an elder. An elder abuse protective order “may issue on the basis of evidence of past abuse, without any particularized showing that the wrongful acts will be continued or repeated.  (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.) There was substantial evidence to support issuance… Read More