California Appellate Tracker

The Right to Repair Act contains three provisions regarding roofs.  Civ. Code 896(g)(3)(A) states that manufactured products, including roofs, shall be installed so as not to interfere with the products’ useful life, if any.  Section 896(g)(3)(C) defines "manufactured products" to mean one assembled, in full, off-site.  Section 896(a)(4) states that roofs shall not permit water to pass around or through… Read More

In reviewing a Workplace Violence Prevention Order, the Court of Appeal applies the substantial evidence rule, but also takes into account the fact that the plaintiff bears the burden of producing clear and convincing evidence of a credible threat of violence.  So it must determine whether the trial court could, based on the evidence, have found it highly probable that… Read More

The trial court erred in denying defendant attorney fees under the Anti-SLAPP statute when defendant prevailed on the motion to strike as to the abuse of process claim, though not as to the malicious prosecution claim.  Fees must be awarded to the moving defendant upon partial success of the motion, though the amount of the fee award is properly proportioned… Read More

The favorable termination element of a malicious prosecution action may be satisfied if one or more of the claims alleged in the underlying action was dismissed on the merits--even if other claims were dismissed for procedural reasons (such as the bar of the statute of limitations).  Here, several of the claims in the underlying action were dismissed as time-barred, but… Read More

The Feres doctrine (Feres v. United States (1950) 340 U.S. 135, 146) which holds that the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to military service does not immunize a general or the Government from liability for the general's alleged sexual assault… Read More

Ins. Code 1063.2(c)(2) is more specific than, and prevails over Ins. Code 1063.1(c)(5), barring a claimant or its subrogated insurer from suing the at-fault driver for damages the driver caused to the claimant's property if the driver's insurer was a member of CIGA and went insolvent after the accident. Read More

The district court erred in granting defendant summary judgment in this False Claims Act case.  A genuine issue of triable fact existed as to whether defendant's use of the "KX" modifier in its Medicare reimbursement claims was material.  The modifier indicated compliance with local coverage determinations.  That certification was false, and it would be material if the trier of fact… Read More

Despite any delegation clause, a court must always determine whether the parties entered into an arbitration agreement as well as rule on any challenge to the delegation clause specifically.  Here, the court found that the Chickasaw Nation had entered into an arbitration agreement with Caremark.  The Chickasaw Nation did not automatically waive its sovereign immunity by agreeing to arbitration, but… Read More

Following Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, this decision enforces the parties' settlement agreement which permitted plaintiff to enter judgment against defendant for $251,000 if defendant failed to pay any of 24 monthly instalments of $1,250 (for a total of $30,000).  The $251,000 judgment was not an unenforceable penalty because defendant admitted plaintiff… Read More

Following EEOC v. Waffle House Inc. (2002) 122 S.Ct. 754, this decision holds that the DFEH cannot be compelled to arbitrate even though the employees, whom it alleges were illegally discriminated against, all signed arbitration agreements. Read More

A plaintiff may apply to the court for leave to proceed by a fictitious name if privacy concerns outweigh the First Amendment interest in public access to judicial proceedings.  Here, the employee on whose behalf DFEH sued for employment discrimination said that revealing his identity and caste would subject him and his family to discrimination and jeopardize their safety in… Read More

Reversing a summary judgment in defendant's favor, this decision holds that defendant cannot claim a fair use defense to plaintiff's suit for infringement of its copyright on photos of an ephemeral lake in the Death Valley desert.  All four fair use factors weighed against defendant.  Defendant used the pictures for a commercial purpose--to profit from its article that included the… Read More

Same deferential standard of review applies whether evidence presented to trial court is live testimony or written affidavits and exhibits. Read More

Following Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119 and distinguishing Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, this decision affirms a judgment confirming an arbitration award in defendant's favor.  Even though one of defendant's lawyers was unlicensed in California when he performed part of the work under… Read More

Defendant did not owe a duty of care to plaintiff to protect him from falling from a steeply slanted roof covered with broken, slippery clay roof tiles.  The roof's danger was open and obvious.  It was not foreseeable that plaintiff, who was neither required nor invited to climb on the roof, would confront that obvious danger.  He did so while… Read More

The trial court did not abuse its discretion in denying private attorney general fees to Malibu homeowners who successfully challenged a proposed special assessment to protect a beach and nearby homes from erosion.  The trial court correctly estimated the homeowners' potential benefit from the suit as the amount of assessments they sought to avoid over the 20-year period of the… Read More

Owner of a 1% interest in an LLC sued to dissolve the LLC.  Holders of less than 50% of the LLC intervened and moved for a mandatory buyout of the plaintiff's interest under Corp. Code 17707.03. By then owners of a majority of shares (including plaintiff) voted to dissolve the LLC under Corp. Code 17707.01.  This decision holds that the… Read More

Indebtedness arising from the attorney’s obligation to reimburse the State Bar for the payments made to victims of his misconduct is dischargeable in bankruptcy.  Such an indebtedness is not a penalty, fine or forfeiture payable to a governmental agency, but rather is payable to and for the benefit of the State Bar and is compensation for the Fund’s actual pecuniary… Read More

Under 9 USC 201 et seq. governing foreign arbitrations, federal courts have subject matter jurisdiction to enforce arbitrator-issued subpoenas served on US residents.  The subpoena enforcement action may be filed in any district court where venue is proper under 28 USC 1391, the general venue statute, or 9 USC 204, which allows--but does not require--suit in the district in which… Read More

Following Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, this decision holds that the Unruh Act does not prohibit disparate impact discrimination.  So, having a website that is not specially adapted to be readable by the vision-impaired is not an independent violation of the Unruh Act, even if the business is aware that its website can't be read… Read More