California Appellate Tracker

The trial court abused its discretion in disqualifying defendant's attorney on the ground the attorney would be defendant's principal witness regarding a decade-old settlement agreement between the parties--one that the attorney had negotiated for defendant.  When the client gives fully informed consent, as was true here, the attorney-witness may be disqualified only if the trial court finds prejudice to the… Read More

Under CCP 2033.410, a request for admissions that is not timely answered may be "deemed admitted" by court order, but the deemed admission is binding only on the party that made the admission.  An agent's deemed admissions (for failure to timely answer requests for admission) do not bind the principal codefendant, even when the basis for the action against the… Read More

Plaintiff was injured while riding an off-road motorcycle in an unpaved and unoccupied area of the desert, where defendant maintained a wildlife preserve which it surrounded by a cable fence to stop illegal dumping and off-road vehicles from disturbing the fragile habitat.  Plaintiff ran into the fence.  Held, defendant is immune from liability under Gov. Code 831.7, which immunizes public… Read More

Gov. Code 12926(d) states that, for purposes of the FEHA, the term “ ‘[e]mployer’ includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .”  This decision holds that the quoted language allows the employer's agent to be held primarily liable for its own violation… Read More

Under Yegiazaryan v. Smagin (2023) 143 S.Ct. 1900, the proper test for whether a plaintiff sufficiently alleges a domestic injury to sustain a RICO claim is whether the circumstances, including the nature of the alleged injury, the racketeering activity that directly caused it, and the injurious aims and effects of that activity, show that the injury arose in the US. … Read More

B&P Code 7168 allows for a fee award to the prevailing party in a suit over construction of a swimming pool but not in a suit involving other types of construction activities.  The trial court here correctly denied plaintiff's fee motion because she did not prevail on claims involving construction of the swimming pool though she did prevail on claims… Read More

The collateral source rule cannot be used to confer UCL standing on a plaintiff who has suffered no economic injury from the alleged unfair competition but whose insurer paid more as a result.  Here, plaintiff alleged that Genentech sole a drug in too big doses that ended up wasting the expensive drug.  Plaintiff conceded he would have paid the same… Read More

To be a prerecorded voice message that the TCPA separately regulates, the message must be audible.  Prerecorded text messages which have no sound component are not voice messages within the statute's meaning even if they are "an instrument or medium of expression"--one of the possible dictionary definitions of "voice." Read More

A motor carrier is required to carry vehicle insurance with a minimum coverage limit of $750.000.  Veh. Code 34631.5.  This decision holds that the statute regulates only the motor carrier and imposes no duty on an insurer that does not certify its insurance meets the statutory standards.  The carrier can obtain insurance from multiple insurers to meet its statutory obligation… Read More

The ecclesiastical abstention doctrine did not bar a former Mormon's fraud claim against the church for falsely telling church members that the tithes they paid the church would not be used to fund the redevelopment of a shopping mall adjoining Temple Square in Salt Lake City.  The fraud claim did not involve any question of the truth or validity of… Read More

The district court erred in issuing a Colorado River stay of this federal suit which sought to set aside defendants' allegedly fraudulent transfers to avoid execution of a New Jersey state court judgment in plaintiff's favor.  After the federal suit was filed a New Jersey reversed the judgment in plaintiff's favor and remanded for further proceedings.  Colorado River abstention or… Read More

In a single document titled only "order," the district court denied defendant's motion to dismiss as well as its motion to compel arbitration.  This decision holds that while the order denying the motion to compel arbitration is appealable (9 USC 16(a)), the order on the motion to dismiss was not appealable and did not become so by being joined in… Read More

An Ins. Dept. regulation requires insurance companies who sell variable life insurance—that is, a life insurance policy that also functions as an investment vehicle—to “adopt” and “use[]” standards in order to assess whether such insurance is “suitab[le]” to recommend and issue to potential investors. (Cal. Code Regs., tit.10, §2534.2(c);1 Ins. Code, § 10506(h).)  This decision holds that when the insured's… Read More

Corp. Code 5142 and 5223 provide that a director of a nonprofit corporation may sue to enjoin a breach of the charitable trust and/or to remove another director  fraudulent or dishonest acts, gross abuse of authority, or breach of duty.  This decision holds that since the two statutes do not use the instituted or maintained" language used in Corp. Code… Read More

State law preempts local legislation that duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.  Here, Monterey's Measure Z which banned oil and gas wastewater injection and impoundment and the drilling of new oil and gas wells throughout the County’s unincorporated areas was preempted by Pub. Resources Code 3106 which delegates to… Read More

Under Labor Code 5908.5, the Workers Compensation Appeals Board must act on a petition for rehearing within 60 days.  The Board's current practice of granting rehearing for study does not comply with the statute.  Though the Board says it carefully reviews petitions before granting-for-study, its grant-for-study orders do not state in detail the reasons for its order granting rehearing for… Read More

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