California Appellate Tracker

Plaintiff did not agree to a franchisor's arbitration clause, so the trial court correctly denied the franchisor's motion to compel arbitration.  The arbitration clause was contained in the franchisor's "terms and conditions of service" which were available to the plaintiff only by checking an inconspicuous link on a tablet device handed to plaintiff as she appeared for her monthly massage… Read More

This decision affirms orders denying motions to vacate default and vacate the default judgment.  The default was based on substitute service of the complaint on a co-resident of a gated community.  There was sufficient evidence in the process server's proofs of service to support the trial court's conclusions that diligent efforts were made to serve the defendants personally before resort… Read More

The supplementary payments provision of this contractor's CGL policy provided that if the insured contractor faced liability for personal injury or property damage pursuant to an indemnity provision in one of the insured's contracts, the insurer would pay for the insured's defense but count any recovery by the indemnitee as damages against the $1 million limit on coverage.  The supplementary… Read More

The federal Children's Online Privacy Protection Act (COPRA; 15 USC 6501-6506) and the FTC's implementing regulations (16 CFR 312.2) forbid collection of children's "persistent identifiers" without parental permission.  Here, plaintiffs alleged solely state law claims against Google for tracking their children's internet usage of YouTube using persistent identifiers without their parents' permission.  COPRA's express preemption provision (15 USC 6502(d)) preempts… Read More

The trial court correctly denied defendant's Anti-SLAPP motion to strike this malicious prosecution action, finding plaintiff had established the probable validity of the malicious prosecution claim as to two causes of action in the underlying action, for violation of a municipal ordinance governing approval of demolition projects and for violation of CEQA.  The municipal ordinance claim was baseless since the… Read More

This decision holds that the trial court erred in granting one defendant summary judgment based on a statute of limitations defense.  The argument and evidence on summary judgment addressed when plaintiff discovered the contracts signed by an independent contractor were void under This decision holds that the trial court erred in granting one defendant summary judgment based on a statute… Read More

This decision holds that the trial court erred in granting one defendants summary judgment based on plaintiff's failure to timely file a government claim.  Plaintiff alleged facts giving supporting its arguments that the defendant had expressly and impliedly waived the government claims defense.  The fact that plaintiff filed a late government claim did not defeat the implied waiver argument since… Read More

Crane died in San Diego.  Jernigan claimed she was his heir by reason of her having been raised by relations, the Boodgoods, who raised Jernigan in Indiana and held her out as their daughter after she was abandoned by her natural parents.  Under Prob. Code 6453 and the Uniform Parentage Act (Prob. Code, 7611), Jernigan is presumed to be the… Read More

Under Lab. Code 204(d), wages must be paid to workers paid on a weekly basis within 7 calendar days after the end of the payroll period.  This decision holds that CCP 12a applies so as to extend the 7-day deadline for payment to the next business day if the deadline falls on a Saturday, Sunday or holiday. Read More

Under a unique virus coverage endorsement that did not require physical loss of or damage to real property, this CGL policy's business interruption policy might provide coverage for COVID-19 caused business interruption losses. Read More

An employee who engages in sales activities for the employer in a fixed location at which the employer exercises control and supervision over the employee, by requiring the employee to clock in and out and other measures is not subject to the outside salesman exemption to Labor Code wage and hour provisions.  The exemption was intended to shield employers from… Read More

This decision affirms a $12 million compensatory damage judgment agaisnt J&J and Colgate for products liability and other torts arising from plaintiff's mesothelioma allegedly caused by asbestos or asbestos-like fibers in defendants' talc products.  The trial court did not err in giving a jury instruction on causation patterned after Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953.  Other challenged jury… Read More

This decision affirms a $12 million compensatory damage judgment agaisnt J&J and Colgate for products liability and other torts arising from plaintiff's mesothelioma allegedly caused by asbestos or asbestos-like fibers in defendants' talc products.  The trial court did not err in overruling objections to plaintiff's expert witnesses' opinions.  There was some evidence that the World Health Organization's International Agency for… Read More

Under CCP 2023.030(f), a party cannot be sanctioned for destruction of ESI if the evidence was lost before the party that possessed or controlled it became  objectively aware the evidence was relevant to reasonably foreseeable future litigation, meaning the future litigation was probable or likely to arise from an event, and not merely when litigation was a remote possibility.  Here,… Read More

Family Code 271 allows a judge on motion of a party to a marital dissolution proceeding to sanction the opposing party for conduct that frustrates the policy of the law to promote settlement of litigation.  Here, the judge abused his discretion in awarding sanctions against wife's attorney under that section, as the statute allows sanctions only against a party, not… Read More

CCP 203(a)(5) used to provide that any person convicted of a felony could not serve as a juror.  Now it provides that persons convicted of a felony cannot serve as a juror while in prison or on parole or while required to register as a sex offender.  This decision holds that the sex offender exclusion satisfies the rational basis test… Read More

The trial court abused its discretion in granting defendant school's Anti-SLAPP motion to strike the plaintiff teacher's defamation complaint insofar as it was based on the termination letter the school sent the teacher and on the termination decision itself.  While the termination decision and letter related to an issue of public importance--protecting current and former students from teachers' sexual advances--neither… Read More

The trial court did not abuse its discretion in awarding plaintiff its attorney fees in opposing defendant's Anti-SLAPP motion to strike.  Plaintiff's claim arose from false representations the defendant developer made to the Rocklin City Council about his ability to develop a financially viable family theme park in the Rocklin Quarry.  Though the representations were made in an official proceeding,… Read More

Following Borden v. eFinancial, LLC (9th Cir. 2022) 53 F.4th 1230, this decision holds that to be an automatic telephone dialing system within the TCPA's meaning, the system must randomly or sequentially generate and dial telephone numbers.  It is not enough that the system randomly or sequentially chooses telephone numberes that the defendant has obtained and stored in a different… Read More

Section 12(a)(2) of the Securities Act (15 USC 77l(a)(2)) imposes liability on any person who offers or sells a security by means of untrue statements or concealments.  In Pinter v. Dahl, 486 U.S. 622, 643, 647-48 (1988), the Supreme Court held that a person may be liable as a “seller” under the predecessor version of § 12(a) if the person… Read More