California Appellate Tracker

The district court abused its discretion in excluding testimony from defendant's sole trial witness and in imposing monetary sanctions for defendants' purported failure to properly identify the areas of testimony of the witness--who had been identified in the defendant's initial disclosures.  Even if the initial disclosures showed only that the witness would testify about the underlying lawsuit for which the… Read More

A public entity (school board) violated plaintiff's First Amendment rights by blocking him from posting on the social media (Facebook) it used to communicate with constituents about public issues.  The page was a public forum.  Blocking plaintiff from using the page altogether was an overly broad restriction of his free speech.  Less restrictive measures would serve the entity's interest in… Read More

This decision holds that Civil Code 1717 does not authorize a trial court to award attorney fees before entry of final judgment.  Here, the trial court granted summary adjudication for plaintiff on contract claims, but tort and statutory claims remained unresolved.  The summary adjudication order was not a final judgment.  It was subject to modification under the court's inherent power. … Read More

Fraud in factum, in execution or in the inception differs from promissory fraud, which is a false promise.  Fraud in execution occurs when the defendant causes the plaintiff to execute a contract that has materially different terms from those on which the parties orally agreed.  To allege a claim for fraud in execution, the plaintiff must allege facts showing the… Read More

(Plaintiff could not allege a breach of contract claim based on a letter of intent that differed from the terms of the written agreement that the parties later signed.  The letter of intent clearly indicated it was not binding but rather was a mere proposal.  See SCC Acquisitions v. Central Pacific Bank (2012) 207 Cal.App.4th 859.) Read More

The trial court in San Francisco abused its discretion in denying defendant's motion to transfer this wrongful death case to San Diego where the accident occurred and most witnesses reside.  The fact that the Legislature authorized remote trial testimony through July 2023 is not a favor that the trial court could properly invoke to ignore the fact that most witnesses… Read More

Summary judgment was properly entered for the defendant in this slip and fall accident on a public sidewalk.  The trivial defect doctrine applied to shield the city from liability.  The discontinuity between slabs of sidewalk paving over which plaintiff tripped was at most 3/4ths of an inch.  There were no other factors adding to the dangerousness of that condition.  Plaintiff… Read More

CCP 575.2 authorizes superior courts to impose sanctions for violation of local rules promulgated under CCP 575.1.  This decision holds that a court may impose sanctions under 575.2 for violation of rules governing submission of documents in preparation for trial (such as in limine motions and jury instructions) as well as for violation of pretrial rules.  It also holds that… Read More

Under Probate Code 16061.8 and 21311, as amended in 2010, a no contest clause may be enforced against a beneficiary of a will or trust if the beneficiary files a "direct contest without probable cause."  A direct contest is one that alleges the invalidity of a protected instrument or one or more of its terms, based on one or more… Read More

Under CCP 1281.97-1281.99, the party that drafted a consumer or employee arbitration agreement must pay its share of the arbitration fees within 30 days of the date they are due.  If it fails to do so, the other party is entitled to a mandatory award of attorney fees and costs related to that breach of the arbitration agreement and may… Read More

(Under CCP 128.5 and 128.7, a party moving for sanctions must serve the opposing party with the motions a full 21 days before filing the sanctions motion in court.  A sanctions motion filed on the 21st day after service does not comply.  A full 21 days must be afforded the opposing party to correct its sanctionable conduct, so the earliest… Read More

The mere fact that plaintiff's suit was filed in retaliation for an earlier claim against the plaintiff by the defendant does not make the plaintiff's suit a SLAPP subject to a special motion to strike under CCP 425.16.  Instead, whether it is a SLAPP depends on whether the defendant's earlier claim (or other protected activity) forms a basis for the… Read More

Under CCP 1281.4, a court may stay an action in court pending arbitration “of a controversy which is an issue involved” in the action.  This decision holds that the statute does not apply unless the court has ordered parties in the judicial action to arbitration, the arbitrable issue arises in the pending court action, and the parties in the arbitration… Read More

Under Fed. R. Civ. P. 4(k)(2), a plaintiff may establish personal jurisdiction over a foreign defendant by (a) alleging a federal law claim against the defendant, (b) showing that the defendant is not subject to personal jurisdiction in any state, and (c) showing that exercise of jurisdiction over the defendant is consistent with due process, considering the defendant's contacts with… Read More

A PAGA claim is not the same cause of action as an employee's individual claim for damages for an employer's violation of wage and hour laws.  Also, the parties to the two suits are different.  Though the same employee brings both, the real party in interest in the PAGA suit is the State of California.  Accordingly, an employee may bring… Read More

Agreeing with Switzer v. Wood (2019) 35 Cal.App.5th 116, this decision holds that Penal Code 496(c)  authorizes an award of treble damages and attorney fees whenever the plaintiff proves any type of theft—whether it be fraud, misrepresentation, conversion, or breach of fiduciary duty—by which the defendant obtains money or property. Read More

A defaulted defendant (or in this case, one against whom terminating discovery sanctions had been entered) may, nevertheless, move for a new trial on the ground that the court made an “error in law” in calculating damages.  Even a defaulting defendant may appeal the resulting default judgment on the grounds that the damages award (1) “is so disproportionate to the… Read More

The trial court abused its discretion in disqualifying plaintiff's counsel from all phases of the case shortly before trial on the ground that he would be a witness at trial.  The trial court erroneously failed to apply California Rule of Professional Conduct 3.7(3), which unlike the ABA rule from which it is drawn, allows an attorney to also testify with… Read More

Four individuals protested the Golden Gate racetrack's allegedly improper treatment of race horses by sneaking onto the track, linking their arms by PVC pipes and lying across the track in a manner that prevented the racetrack from holding races.  The racetrack owner sued the four individuals for trespass and intentional interference with prospective economic advantage, naming Direct Action as an… Read More

The trial court erred in granting the defendant attorney summary judgment on statute of limitations grounds since there was a triable issue of fact as to when his representation of the plaintiff was terminated--either slightly more or slightly less than a year before the malpractice action was filed.  There was no formal withdrawal until less than a year before suit. … Read More