California Appellate Tracker

The district court erred in not finding that Apple's requirement that app developers sell through the Apple App Store was a separate service from its requirement that app developers use Apple's in-app payment system exclusively.  However, tie-ins that involve software that serves as a platform for other applications are not per se illegal.  Apple's tie in survived the rule of… Read More

Although the district court erred in holding that a contract of adhesion couldn't violate Sherman Act section 1 (which by its terms applies to every contract in restraint of trade), it properly applied the rule of reason test in holding that Apple's restrictions on app developers' sales (requiring sale through the Apple Store, payment of 30% of gross revenues to… Read More

An aftermarket for a single brand can be a viable product market but only when 1) the challenged aftermarket restrictions are “not generally known” when consumers make their foremarket purchase; (2) “significant” information costs prevent accurate life-cycle pricing; (3) “significant” monetary or non-monetary switching costs exist; and (4) general market-definition principles regarding cross-elasticity of demand do not undermine the proposed… Read More

Lamps Plus, Inc. v. Varela (2019) 139 S.Ct. 1407 only held that ambiguity could not be construed against drafter for purposes of determining whether the parties had agreed to classwide arbitration.  It did not hold that the construction against drafter principle is inapplicable to other types of ambiguities in the arbitration agreement.  In any event, there was no ambiguity in… Read More

Former paramour sued current flame for intentional interference with paramour's settlement agreement with her ex.  Flame was a lawyer.  She satisfied her burden on the first step of the Anti-SLAPP analysis by showing that the interference claim was based on flame's counseling ex in anticipation of litigation with paramour.  This was protected activity whether the ex was already flame's client… Read More

When an Anti-SLAPP defendant lodges a factual challenge, district courts may properly consider extrinsic evidence in evaluating whether a defendant has met her prima facie burden under either step of the Anti-SLAPP analysis.   If a defendant moves to strike “on purely legal arguments,” courts must analyze the motion under Rules 8 and 12, but where a defendant asserts “a factual… Read More

The federal 30-day limit on filing a notice of appeal runs from entry of a separate document judgment as required by FRCP 58.  Here, the district court entered an order granting an Anti-SLAPP motion to strike but then delayed three weeks before entering a separate document judgment.  The appeal time did not start to run until the judgment was entered. Read More

The trial court did not err in refusing defendant's proposed jury instruction regarding the plaintiff contractor's responsible managing employee.  Under B&P Code 7068, an RME is responsible for exercising that direct supervision and control of his or her employer’s or principal’s construction operations as is necessary to secure full compliance with the contractor's licensing requirements and contractor's licensing board's regulations. … Read More

In this suit, a general contractor and its subs sued the LA school district for delay damages caused by construction stalled while cracks in the concrete foundation were repaired.  The contractors claimed that the cracks were caused by a design flaw--certain additional features should have been included in the foundation plan to avoid cracks.  The district claimed that the cracks… Read More

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