California Appellate Tracker

The trial court properly enforced an employer's arbitration clause.  The clause was only minimally procedurally unconscionable, being presented on a take-it-or-leave-it basis by the employer which wielded greater economic power.  However, the clause was on a separate page.  It was short and clearly titled.  The page also warned the employee to read the clause closely. The clause was not substantively… Read More

Under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), employers must provide employees who take military leave with the same non-seniority rights and benefits as their colleagues who take comparable non-military leaves. See 38 U.S.C. § 4316(b)(1); 20 C.F.R. § 1002.150(a).  Whether short term military leave is comparable to nonmilitary leave is a jury question dependent upon three factors:… Read More

Agreeing with Figueroa v. FCA US LLC (2022) 84 Cal.App.5th 708 (though by different reasoning), not with Niedermeier v. FCA US LLC (2020) 56 Cal.App.5th 1052, this decision holds that the manufacturer is not entitled to set off against damages otherwise due the car buyer under the Song-Beverly Act, the amount the car buyer received on trading the defective car… Read More

The court, not the arbitrator, decides whether the parties entered into an agreement to arbitrate even if the supposed arbitration agreement contains a broad delegation clause.  Here, the trial court correctly determined that plaintiff had not agreed to arbitrate.  Defendant produced no agreement signed by plaintiff.  The credit card application he signed did not reference any agreement, let alone an… Read More

Estate of Cornelious (1984) 35 Cal.3d 461 remains good law.  Under Probate Code 7540(a), a child is conclusively presumed to be issue of the man married to the child's mother, so long as the two were cohabiting at the time of conception and of birth.  Such a child is not allowed, at least for inheritance purposes, to prove that he… Read More

The 2022 amendment to the FAA exempting from its enforcement of arbitration agreements pre-dispute agreements to arbitrate sexual assault or harassment claims does not apply retroactively to suites filed before the amendment's effective date.  Nevertheless, arbitration should not have been compelled here because the agreement is unconscionable.  Procedurally, the employer did not disclose at the time of agreement which arbitration… Read More

Plaintiff was hired by Intelex but also worked simultaneously for five other firms that were jointly owned and operated with Intelex.  Intelelex's employment agreement contained an arbitration clause, but didn't mention the other employing companies or make them third party beneficiaries of the arbitration clause.  The other employers' motion to compel arbitration of plaintiff's wrongful termination claims was properly denied. … Read More

Under Gov. Code 91003(a), part of the Political Reform Act of 1974, the trial court may award attorney fees to a plaintiff or defendant who prevails.  This decision holds that though the statute does not expressly so provide, to promote the Act's purpose of encouraging private litigation to enforce the act, the civil rights statutes' standard allowing the trial court… Read More

Gov. Code 844.6 grants state agencies immunity from liability for injury caused by a prisoner.  This decision holds that the statute applies to bar plaintiffs' FEHA claims that the Department failed to properly shield them from sexual harassment by prison inmates whom they, as Department employees, were assigned to treat.  The prisoners proximately caused plaintiffs' harm even if the Department's… Read More

Ordinarily, the beneficiary of a revocable trust lacks standing to sue concerning the trust so long as the trustor is alive and can still revoke the trust.  However, the beneficiary may still have standing if the trustor is incompetent.  To establish standing, the beneficiary need only allege that the trustor is incompetent. Read More

This decision affirms an order denying an Anti-SLAPP motion brought against a trust beneficiary's surcharge action against the trustee for wasting the trust's funds in pursuing meritless litigation.  The decision determines that the gist of the action and the harm alleged is the waste of trust funds--unprotected conduct--not the filing and funding of the meritless litigation which would be protected… Read More

A party seeking to correct or vacate an arbitration award must petition to correct or vacate or raise the issue in answer to the opposing party's petition to confirm the award during the shorter of (a) 100 days from issuance of the arbitration award or (b) 10 days after the petition to confirm is served.  The 10 day limit may… Read More

Statute of limitations on claim that defendant tortiously injured plaintiff's land by dumping uncertified fill on the property ran from the discovery of the claim by prior owners of the property.  The limitations period does not re-start with a transfer of the property to a new owner after the first owner has discovered the injury. Read More

The trial court correctly dismissed this developer's inverse condemnation claim for failure to exhaust administrative remedies.  A city employee orally modified a grading plan for plaintiff's townhouse project while the project was under construction.  Plaintiff proceeded under the modified plan and grading permit without appealing the modification to the city's permit appeals board.  The decision rejects the plaintiff's argument that… Read More

This decision affirms an order quashing service of summons on defendant FCCC for lack of personal jurisdiction.  FCCC is not subject to general jurisdiction in California as it is incorporated in Delaware and principally located in South Carolina.  It built the chassis for a bus that Champion Bus manufactured in Michigan.  The bus was involved in an accident in California. … Read More

Defendant's 998 offer was valid and shifted costs when plaintiff later settled for the same amount as the 998 offer.  The offer was to pay Chen $160,000; he would be required to return the car with clean title; and he would be allowed to seek an award of attorney fees and costs by noticed motion, the amount to be determined… Read More

The district court erred in entering judgment in favor of the defendant property owner in this ADA suit over  the parking lot's lack of a space for parking a van with an access path for a person confined to a wheelchair.  The fact that plaintiff was a serial litigant in ADA cases was not a reason to deny him Article… Read More

Though designated a person most qualified in response to a deposition subpoena on a corporation, the corporate representative is an ordinary lay witness whose testimony is admissible at trial only if based on her personal knowledge.  Here, a PMQ offered a declaration in support of defendant's summary judgment motion full of statements about defendant's practices decades before the witness was… Read More

To state a claim under section 14(e) of the Securities Exchange Act (15 USC 78n(e)), the plaintiff must allege facts showing (1) subjective falsity--that the defendants did not actually believe the revenue projections they sent shareholders, (2) objective falsity-- the revenue projections did not reflect the company's likely future, (3) shareholders' reliance on the projections in approving the tender offer,… Read More

This decision affirms a trial court order vacating an arbitration award in favor of an unlicensed contractor.  An award to an unlicensed contractor is in excess of the arbitrator's powers and contrary to public policy, providing grounds for vacatur of the award.  The trial court reviews the licensure issue de novo.  The contractor bears the burden of proof on the… Read More