Plaintiff's claim against the city was barred because he did not adequately comply with the Government Claims statute. He filed a timely government claim, but it asserted plaintiff was injured due to tripping on an uplifted surface of pavement on a public sidewalk. But in his deposition, plaintiff said he actually fell into hole--a tree well without a tree in… Read More
Claiming plaintiffs assaulted him, defendant filed a police report which led to plaintiffs' arrest. However, the DA declined to file charges against plaintiffs and they were released without a criminal prosecution ever being commenced against them. Following Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, this decision holds that mere arrest without the filing of criminal charges is insufficient to… Read More
Primary assumption of the risk bars a golfer's claim of injury suffered from tripping over a tree root as he traversed the course while playing golf. One of the inherent risks of playing golf on an outdoor course is the uneven nature of the course's terrain. That risk could not be reduced without drastically altering the nature of the game. Read More
This decision affirms a summary judgment for the insurer against a business interruption insurance claim by a casino due to COVID-19. The decision holds that while it may be enough to overcome a demurrer for the complaint to allege simply that COVID-19 altered the surfaces of the plaintiff's business property, at the summary judgment stage much more is required to… Read More
A bicyclist was killed when he collided with a truck making a right turn in a section of a city street that lacked a marked bicycle lane, unlike most of the rest of the street which had a bike lane marking. The city established the three elements of its design immunity defense under Gov. Code 830.6. The city had approved… Read More
On federal law claims, the prevailing party may recover its attorney fees only if federal law so provides. Here, plaintiff prevailed on claims under the federal Indian Gaming Regulatory Act. Neither that act nor any other federal law permits an attorney fee award on such a claim. Plaintiff could not recover fees allowed under state law, such as CCP 1021.5. … Read More
Plaintiff mother sued for negligent infliction of emotional distress. She was on the telephone with her daughter while the daughter drove a car at an intersection where her vision of on-coming traffic was obscured by defendants' negligent maintenance of vegetation on adjoining property. That mother heard the crash on the phone was insufficient in itself to allow her to sue. … Read More
Reversing the trial court, this decision holds that plaintiff is entitled to an attorney fee award under CCP 1021.5 based on her earlier appellate victory on her claim for disability retirement benefits from CalPers. Merely enforcing existing law or securing a published opinion doing so is not necessarily enough to show that the action conferred a substantial benefit on the… Read More
The trial court correctly surcharged defendant who was trustee of the decedent Pool's trust and held his power of attorney for funds that defendant deposited in a bank account held jointly with Pool rather than in a trust account for the benefit of the trust beneficiaries. By depositing the funds in the joint account, defendant essentially made himself the death… Read More
The district court erred in not awarding Apple its attorney fees under the indemnity provision of its app developer agreement. The indemnity clause expressly required indemnity of loss and expense due to the developer's breach of an obligation or warranty, showing that the clause was intended to cover litigation between the contracting parties as well as third party claims. Read More
The district court did not err in holding that Apple violated the UCL's "unfair" prong by prohibiting app developers from advertising to consumer iPhone users that they could pay through other means than Apple's in-app payment system and thereby save money. Epic's mere failure to prove its antitrust claim doesn't bar it from establishing the practice is unfair under Cal-Tech's… Read More
The district court erred in not finding that Apple's requirement that app developers sell through the Apple App Store was a separate service from its requirement that app developers use Apple's in-app payment system exclusively. However, tie-ins that involve software that serves as a platform for other applications are not per se illegal. Apple's tie in survived the rule of… Read More
Although the district court erred in holding that a contract of adhesion couldn't violate Sherman Act section 1 (which by its terms applies to every contract in restraint of trade), it properly applied the rule of reason test in holding that Apple's restrictions on app developers' sales (requiring sale through the Apple Store, payment of 30% of gross revenues to… Read More
An aftermarket for a single brand can be a viable product market but only when 1) the challenged aftermarket restrictions are “not generally known” when consumers make their foremarket purchase; (2) “significant” information costs prevent accurate life-cycle pricing; (3) “significant” monetary or non-monetary switching costs exist; and (4) general market-definition principles regarding cross-elasticity of demand do not undermine the proposed… Read More
Lamps Plus, Inc. v. Varela (2019) 139 S.Ct. 1407 only held that ambiguity could not be construed against drafter for purposes of determining whether the parties had agreed to classwide arbitration. It did not hold that the construction against drafter principle is inapplicable to other types of ambiguities in the arbitration agreement. In any event, there was no ambiguity in… Read More
Former paramour sued current flame for intentional interference with paramour's settlement agreement with her ex. Flame was a lawyer. She satisfied her burden on the first step of the Anti-SLAPP analysis by showing that the interference claim was based on flame's counseling ex in anticipation of litigation with paramour. This was protected activity whether the ex was already flame's client… Read More
When an Anti-SLAPP defendant lodges a factual challenge, district courts may properly consider extrinsic evidence in evaluating whether a defendant has met her prima facie burden under either step of the Anti-SLAPP analysis. If a defendant moves to strike “on purely legal arguments,” courts must analyze the motion under Rules 8 and 12, but where a defendant asserts “a factual… Read More
The federal 30-day limit on filing a notice of appeal runs from entry of a separate document judgment as required by FRCP 58. Here, the district court entered an order granting an Anti-SLAPP motion to strike but then delayed three weeks before entering a separate document judgment. The appeal time did not start to run until the judgment was entered. Read More
The trial court did not err in refusing defendant's proposed jury instruction regarding the plaintiff contractor's responsible managing employee. Under B&P Code 7068, an RME is responsible for exercising that direct supervision and control of his or her employer’s or principal’s construction operations as is necessary to secure full compliance with the contractor's licensing requirements and contractor's licensing board's regulations. … Read More
In this suit, a general contractor and its subs sued the LA school district for delay damages caused by construction stalled while cracks in the concrete foundation were repaired. The contractors claimed that the cracks were caused by a design flaw--certain additional features should have been included in the foundation plan to avoid cracks. The district claimed that the cracks… Read More
