California Appellate Tracker

Under California's False Claims Act, there is a public disclosure bar to suit if the information on which the suit is based was publicly disclosed in a criminal, civil, or administrative hearing, in a report, hearing, audit or investigation by the Legislature, or in news media.  (Gov. Code 12652(d)(3)(A).)  This decision holds that interest rates on government bonds automatically reported… Read More

An employer's arbitration agreement contained a carve-out provision stating that claims under PAGA are not arbitrable under this agreement.  This decision holds that the plain language of the carve-out excludes from arbitration all PAGA claims--including those individual PAGA claims that Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 are arbitrable (absent the parties' contrary agreement). Hence, the trial… Read More

After his house was destroyed in a fire, Tipton filed a claim under his homeowner's policy with Nationwide.  In a criminally stupid move, Tipton's claim sought payment for destruction of Van Gogh's original Starry Night painting which he said was in the house when the fire broke out.  Tipton was later charged and pled guilty to insurance fraud and perjury,… Read More

Under McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, the trial court properly denied defendant's motion to compel arbitration because the arbitration clause forbade award of a public injunction in any forum.  Contrary to the defendant's argument, its arbitration agreement did not authorize the arbitrator to award a public injunction.  It provided instead that arbitration is to be “conducted only… Read More

Following Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, this decision holds that an arbitration agreement does not clearly and unambiguously delegate arbitrability questions to the arbitrator if the otherwise clear, broad delegation clause is contradicted by a severance provision that recognizes the possibility that a court may determine the arbitration clause or a part of it to be unenforceable. … Read More

CCP 2023.030(f) provides that "absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system."  This decision holds that this provision does not shield… Read More

A post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment.  By contrast, a post-trial motion is required if the summary judgment motion was denied on sufficiency of the evidence grounds since the evidentiary record may be (and usually is) different at trial. Read More

The county's sale of plaintiff's condo at a tax sale to collect delinquent taxes plaintiff owed.  The sale netted a sum greater than the taxes owed.  The county kept the surplus sale proceeds.  That was a taking of plaintiff's property that violated the Fifth Amendment even though state law allowed the county to keep the surplus.  To determine the scope… Read More

Plaintiff appealed adverse judgment claiming the trial court erred in refusing a jury instruction regarding an adverse inference from the opposing party's concealing evidence during discovery.  This decision holds that the plaintiff forfeited the issue on appeal by misstating the record in her brief--asserting that the trial court had found that the defendant improperly concealed documents, when the trial court… Read More

A special needs trust is one established for a severely disabled person.  The trust is designed to supplement public assistance the beneficiary receives without rendering the beneficiary ineligible for that public assistance.  This decision holds that the trustee has discretion under a special needs trust to pay for goods and services for the beneficiary that are not supplied by public… Read More

An administrative agency’s discretionary order may be upheld only on the same basis articulated in the order by the agency itself.  If a court finds the agency's articulated basis to be legally erroneous, it must reverse and remand to the administrative agency for further proceedings, not affirm the agency's order on other grounds. Read More

California's statute forbidding retaliation against employee whistleblowers protects an employee who discloses to supervisors or public prosecutors or regulators information about what he believes are his employer's violations of law--even if the recipient of the information is already aware of the reported violations.  Section 1102.5 protects "disclosures," a term broad enough to encompass emphasizing already known facts.  The term “disclosure”… Read More

Following Balistreri v. Balistreri (2022) 75 Cal.App.5th 511, this decision holds that if a trust provides a procedure or method for amending the trust, whether phrased as exclusive or optional, any amendment must conform to that procedure or method; otherwise it is invalid.  Prob. Code 15402’s “qualification ‘[u]nless the trust instrument provides otherwise’ indicates that if any modification method is… Read More

Summary judgment was properly entered against plaintiff on her FEHA disability discrimination claim.  She was fired when she refused to take a flu vaccine which her employer required as a condition of employment.  Plaintiff had undergone chemotherapy for colon cancer, but had survived with the cancer in remission.  Lingering side effects of the chemotherapy were not contraindications for taking a… Read More

On remand from Travis v. Brand (2023) 14 Cal.5th 411, the Court of Appeal reverses the order awarding defendants their attorney fees.  Under the Supreme Court's decision in the case, fees are awardable to the defendants in a suit under the Political Reform Act and Gov. Code 91003 only if the suit is objectively without foundation.  This suit did not… Read More

28 USC 1367(d) provides that when a case is brought within the federal courts' original jurisdiction and state law claims are also asserted, invoking the federal court's supplemental jurisdiction, any applicable statute of limitations is tolled for a period of 30 days following dismissal of the state law claims if the federal court declines to exercise jurisdiction over them.  This… Read More

Although not required by CCP 2032.320, a trial court may, in its discretion, require a party that desires to take a mental exam of the opposing party to provide the examined party with an audio tape of the examination as well as the raw test data and questions, subject to a suitable protective order to protect the security of the… Read More

Plaintiff's use of Andy Warhol's silkscreen prints of defendant's photograph of Prince is not exempt from copyright infringement under the fair use doctrine.  While Andy Warhol transformed the photograph somewhat, the proposed use of his silkscreen as a magazine cover directly competed with defendant's initial use of the photograph for the same purpose.  The direct competition brought the use outside… Read More

Reversing Gonzalez v. Google LLC (9th Cir. 2021) 2 F.4th 871, the Supreme Court holds that the Justice Against Sponsors of International Terrorism Act of 2016 (JASTA; 18 USC 2333) which amended the ATA to include secondary civil liability for aiding and abetting, or conspiring to commit, acts of international terrorism requires proof of knowing assistance in criminal activity according… Read More

Applying the federal transaction test to a plea of claim preclusion on a CERCLA claim for contribution by a potentially responsible party, this decision holds that the later suit is not precluded because it is not on the same cause of action.  The prior action was by the then-current owner of Property 1 for contribution to the cost of remediating… Read More