California Appellate Tracker

Interpreting Oregon law, the Ninth Circuit holds that a business interruption insurance policy that covered only losses due to direct physical loss or damage did not cover income lost due to COVID-19 government closure orders.  To fall within the policy's coverage, the loss must be due to a physical alteration of the property, which plaintiff didn't and couldn't allege. Read More

A statement of compliance with a demand for production of documents does not need to identify which documents relate to specific items of the demand.  Instead, a general statement that the party will produce the requested documents suffices.  (CCP 2031.210.)  However, under CCP 2031.280(a), as recently amended, when the documents are produced, the producing party must  identify to which specific… Read More

A private university must comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, but the university is not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in… Read More

The trial court erred in denying defendant's motion for relief from default based on CCP 473(b)'s attorney error provision.  The motion for relief was filed within six months after entry of judgment and was accompanied by an attorney declaration of fault.  It was in proper form, or at least substantially complied with the form requirements.  A motion for relief must… Read More

Evid. Code 1106 prohibits admission of specific instances of plaintiff's sexual conduct to prove the plaintiff's consent or lack of injury from alleged sexual harassment, assault or battery.  A "plaintiff's sexual conduct" includes involuntary as well as voluntary sexual conduct (such as a subsequent sexual assault by a different perpetrator). While evidence of sexual conduct otherwise excludable under 1106(a) may,… Read More

A health insurance company's verification of benefits (i.e., confirmation that the patient is insured, covered, and eligible for coverage) is not an enforceable oral promise to pay for the patient's treatment by a health care provider.  Here, summary judgment was properly granted against a health care provider's breach of oral and implied contract claims.  It produced no evidence to show… Read More

A 2022 amendment to CCP 340.16(b)(3) revives until 2026 claims for damage resulting from sexual assault that occurred after 2008.  This decision holds that the amendment revives any claim for damages arising from a sexual assault, without regard to the legal theory of the claim, and is not limited to tort claims for sexual assault or battery.  However, it questions… Read More

Except when a statute granting the right to an attorney fee award itself provides a basis for federal question jurisdiction, a district court lacks jurisdiction to award the defendant attorney fees after dismissing the complaint for lack of Article III standing. Read More

While a district court may convert a motion to dismiss into a summary judgment motion in the parties submit evidence in support of the motion, FRCP 12(d), the district court cannot sua sponte convert a summary judgment motion into a motion to dismiss.  Here, defendant didn't move to dismiss for lack of lack of Article III standing but raised the… Read More

Although acknowledging the issue still remains open, it decides the review the trial court's rulings on evidentiary objections on a summary judgment motion under the abuse of discretion standard which it claims is the majority position both before and after Reid v. Google, Inc. (2010) 50 Cal.4th 512 (which highlighted but did not decide the issue). Read More

This en banc decision holds that there is no implied right of action arising directly from 42 USC 1981.  Instead, the substantive rights which section 1981 confers are enforced through an action under 42 USC 1983.  Federation ofAfrican American Contractors v. City of Oakland  (9th Cir. 1996) 96 F.3d 1204, which held to the contrary is overruled. Read More

When a defendant files an Anti-SLAPP motion, he must identify which portions of the complaint he wishes to strike and show that those portions of the complaint allege conduct that is protected under CCP 425.16(e).  If the defendant moves to strike the whole complaint without identifying smaller portions of the complaint, the court may deny the motion if it finds… Read More

The district court did not err in denying defendant's motion to compel arbitration of plaintiff's claim that defendant discriminated against her in denying her a consolidation loan to combine her two existing student loans.  Defendant was judicially estopped from relying on the arbitration clause in the second loan because at an earlier hearing on whether that clause was unconscionable, defendant… Read More

Under Wage Order No. 5, a hospital may obtain an affirmative defense to a claim for overtime pay by securing a 2/3ds affirmative vote of the workers in the unit to an alternative work schedule so long as the employer first makes full disclosure of the effects that the alternative work schedule will have and fulfills various other procedural requirements. … Read More

Under Gov. Code 11507 and 8 Cal. Cod. Regs. 371.2, Cal. OSHA may amend its accusation against an employer for safety violations before or during the administrative hearing so long as the employer is not prejudiced by the amendment.  This decision affirms the Cal. OSHA Appeals Board's decision that the amendment of the accusation to allege a violation of a… Read More

Under Veh. Code 3066, the dealer bears the burden of proof on all elements of its protest against a manufacturer's notice that it intends to establish a new franchise within ten miles of the protesting dealer's location.  This statute is more specific than and prevails over Veh. Code 11713.13 which states that the manufacturer bears the burden of establishing the… Read More

Unlike prior law which it replaced, California’s Motor Carriers of Property Permit Act (Veh. Code, § 34600 et seq.) does not require an insurer of motor carrier to provide coverage during the period between the end of the insurance policy's term and the date the insurer cancels the certificate of insurance on file with the DMV.  Transamerica Ins. Co. v.… Read More

The district court erred in holding that the delegation clause in the arbitration agreement in this case was unconscionable and therefore unenforceable.  The district court so ruled because the arbitration agreement also provided that if, for any reason, the dispute was not arbitrated, the parties waived a jury trial.  Such a pre-dispute waiver of jury trial is unenforceable under California… Read More

Following Rittmann v. Amazon.com, Inc. (9th Cir. 2020) 971 F.3d 904, this decision holds that drivers who drove goods from in-state warehouses to Domino's franchisees in California are workers engaged in interstate commerce within the meaning of the exception to the FAA's scope.  These drivers handled the last stage of transportation of the goods from out-of-state sources to the California… Read More

The parties stipulated to appointing a retired judge as a temporary judge to hear portions of their marital dissolution proceedings.  The order appointing the temporary judge stated that the appointment would end on April 1, 2020 except as to any requests for orders that had been submitted before that date but had not yet been resolved.  Here, wife submitted a… Read More