Corp. Code 7510(c) provides a summary remedy (1) if a nonprofit mutual benefit corporation fails to hold a regular meeting within time frames specified in 7510(b), or (2) if the corporation fails to hold a written ballot within 60 days of the designated date. This decision holds that the remedy is available if the corporation holds a meeting and a… Read More
Issued by the same court on the same day as Fuentes v. Empire Nissan, Inc. (2023) 2023 DAR ___, this decision also holds that the standard arbitration provision in a Nissan dealership's employment agreement is not unconscionable because it is not substantively unconscionable. Contrary to the plaintiff's argument, the arbitration agreement did not prevent the employee from seeking administrative relief… Read More
Disagreeing with Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, this decision holding that the arbitration provision in Nissan dealerships' standard employment agreement is not unconscionable. Though having a high degree of procedural unconscionability due to small print size and lengthy, obscure language, the clause is not substantively unconscionable. Small print size and obtuse phrasing relate to procedural… Read More
The district court correctly denied Amazon's motion to compel arbitration of a claim by its Flex drivers that Amazon violated state and federal privacy laws by monitoring and wiretapping the drivers’ conversations when they communicated during off hours in closed Facebook groups. To be arbitrable under Amazon's terms of service, the claim had to arise from or involve the Flex… Read More
The Major Questions Doctrine requires “Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Util. Air. Regul. Grp. v. EPA (2014) 573 U.S. 302, 324. The doctrine did not apply to invalidate President Biden's Executive Order requiring federal contractors to have their employees follow COVID-19 safety protocols including vaccination requirements. … Read More
The trial court did not abuse its discretion in excluding plaintiff's expert witness' opinion regarding the accused diabetes drug's causing an increased risk of heart failure in diabetics. The expert relied on only one test, the authors of which noted that its results as to heart failure were anomalous and required comparison with other tests. The expert also did not… Read More
Under Gov. Code 66412.6, a subdivision of fewer than five parcels made before 1972 is conclusively presumed to have been lawfully created. For this purpose, it is not enough to show that a subdivision map was created or recorded. The lots must also have been conveyed. But there is no requirement that they be conveyed individually, lot by lot. A… Read More
To intervene as of right in an action under CCP 387(d)(1)(B), the intervenor must show that its interest is not “adequately represented by one or more of the existing parties.” Ordinarily, that is not a high hurdle, but a compelling showing is required to demonstrate inadequate representation if the intervenor's interest is the same as one or more of the… Read More
Continuing its campaign to rein in the use of "jurisdiction" to describe limitations on court powers, the Supreme Court holds in this case that 11 U.S.C. 363(m) does not deprive the federal courts of jurisdiction but merely sets out a rule merely cloaking certain good-faith purchasers or lessees with a targeted protection of their newly acquired property interest, applicable even… Read More
A party that challenges the constitutionality of FTC or SEC administrative tribunals may sue in federal district court to enjoin administrative proceedings against them, rather than undergoing the administrative hearing and then challenging any adverse decision by appeal in the appropriate Court of Appeals. The harm the plaintiffs claim is being subjected to the allegedly unconstitutional administrative proceeding, and that… Read More
The Federal Food, Drug, and Cosmetic Act preempted plaintiff's claim that defendant's label on "I Can't Believe It's Not Butter! Spray" misleadingly listed 0 calories and 0 grams of fat by using artificially small serving sizes. The FDA sets serving sizes for labeling purposes by type of food product. The Butter! Spray was a "spray" not "butter." And the label… Read More
Husband's divorce attorney violated the federal Wiretapping Statute (18 USC 2511) when he filed transcripts of conversations between wife and her child which husband had surreptitiously taped on a recorder hidden in the child's backpack. Husband couldn't vicariously consent on the child's behalf to recording the conversations since the child was not in husband's custody at the time of the… Read More
The trial court correctly denied the Anti-SLAPP motion brought by Kaufman who was named as the real party in interest in this petition for writ of administrative mandamus to challenge San Francisco's approval of Kaufman's building permit and mitigated negative declaration under CEQA to remodel a home in the city. Though Kaufman's successful appeal to the city from its planning… Read More
Adjunct professors sued USF for failing to give them wage statements that showed hours worked and hourly wage. After judgment was entered in Gola's favor, the Legislature enacted Lab. Code 515.7 which allows nonprofit universities to avoid certain wage statement requirements if the adjunct professors' wages meet certain criteria. This decision holds that section 515.7 does not operate retroactively to… Read More
Under CCP 36(a), a person who is over 70 and who proves that he or she has a substantial interest in the case, and that his or her health is such that preference is needed to avoid prejudicing his or her interest in the litigation, is entitled to have trial of the case set within 120 days after the motion… Read More
Following Merck & Co., Inc. v. Reynolds (2010) 130 S.Ct. 1784, this decision holds that the statute of limitations does not begin to run on a securities claim under 28 USC 1658 until the plaintiff can plead each of its elements with sufficient detail and particularity to survive a motion to dismiss for failure to state a claim. Defendants’ allegedly… Read More
CCP 998 applies when the parties settle after the time for accepting the 998 offer expires and the settlement amount is less than the amount of the 998 offer--at least when the eventual settlement fully resolves all claims in the case and provides for eventual dismissal of the action after any award of attorney fees and costs is entered by… Read More
This decision holds that the complaint alleged a viable claim under CCP 526a to enjoin Orange County's program for collection of DNA samples from persons accused of misdemeanors on the ground that as applied it violated the accused's rights to privacy, counsel and due process. Though Orange County had the accused misdemeanants sign forms waiving those rights, the complaint alleged… Read More
A taxpayer has standing to sue under CCP 526a to challenge a government program on the ground it is unconstitutional either on its face or as applied, at least if the as-applied challenge is broadly based, not confined to an aberrant application to one individual or a small group. The taxpayer may bring the suit without having to identify any… Read More
The probate exception to federal court jurisdiction applies only to cases in which the federal courts would be called on to “(1) probate or annul a will, (2) administer a decedent’s estate, or (3) assume in rem jurisdiction over property that is in the custody of the probate court.” Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1252… Read More
