California Appellate Tracker

Doubling down on LaSalle v. Vogel (2019) 36 Cal.App.5th 127, this decision holds that plaintiff's counsel owes an ethical and legal obligation to notify the defendant's counsel (if known) of the defendant's failure to timely respond to the complaint and plaintiff's intention to seek a default.  Here, plaintiff not only didn't notify defendant's counsel, but also arranged to serve the… Read More

A setoff under CCP 431.70 must be asserted as an affirmative defense in the answer to a complaint.  A party may not assert a setoff under that section in a post-judgment motion.  A judgment debtor may not use a non-statutory post-judgment motion as a means of obtaining an offset against the judgment based on disputed claims. Read More

This decision affirms an order enforcing a settlement agreement that resolved 20 medical malpractice actions--even though the agreement for liquidated damages of $50,000 per month up to a cap of $1.5 million if the defendant failed to timely pay the installments due under the $575,000 settlement amount.  The opinion emphasizes that under Civ. Code 1781(b), which applies to contracts other… Read More

Reversing an Anti-SLAPP order striking plaintiff's complaint, this decision holds that Civ. Code 1788.17 incorprates into the Rosenthal Fair Debt Collection Practices Act, the strict liability standard of 15 USC 1692(e) for false statements made in collecting a debt or regarding the legal status of the debt.  Thus, the debt collector may be held liable under the Rosenthal Act for… Read More

Vehicle Code 14608 prohibits a car rental agency from renting a car unless the renter presents a facially valid California driver's license or a facially valid driver's license from the non-California jurisdiction in which the renter resides.  The statute also requires the rental agency to check either the signatures on the license and the rental agreement or the picture on… Read More

The owner of the Bonaventure Hotel in Los Angeles could not state a claim for inverse condemnation or nuisance against defendant for the disruption caused by defendant's digging a trench down Fourth Street to build a subway tunnel.  In prior litigation, the court had determined that due to unstable soil conditions, an underground tunneling operation was infeasible.  An inverse condemnation… Read More

Plaintiff came to defendant's emergency room and was given an MRI without first checking to see if he had metal implants.  He did and was burned as a result of the procedure.  This decision affirms JNOV on plaintiff's elder abuse claim.  Plaintiff could not show a case of "neglect" since defendant did not have care or custody of plaintiff.  The… Read More

The two defendants purchased municipal bonds for a third party, Riccardi.  The defendants bought the bonds in their own names, but with Riccardi's money and immediately transferred the bonds to him.  They shared profits on Riccardi's resale of the bonds.  By this means, Riccardi was able to buy more of popular municipal bonds than he otherwise would have been able… Read More

The communicable disease extension of the comprehensive property insurance policy that Fireman's issued to Amy's provided coverage for the costs of remediating, cleaning, disinfecting, etc. the premises after a communicable disease event, defined to mean  “an event in which a public health authority has ordered that a location be evacuated, decontaminated, or disinfected due to the outbreak of a communicable… Read More

A state law requiring a gun owner to report a missing gun within 5 days did not preempt a local ordinance requiring the report to be made within 48 hours.  The ordinance does not duplicate state law since it requires earlier reporting.  Also, the ordinance doesn't contradict state law which sets an outside deadline on reporting but does not bar… Read More

Under Lab. Code 1138, as under 29 USC 106, a union cannot be held liable for conduct on a picket line except on "clear proof" of the union's "actual participation in, or actual authorization of those acts."  On an Anti-SLAPP motion to strike, the court must take that higher burden of proof into consideration in weighing, on the second step… Read More

Following Sonner v. Premier Nutrition Corp. (9th Cir. 2020) 971 F.3d 834, this decision holds that even in a diverity case, a federal court may exercise equitable jurisdiction only if the plaintiff has no adequate legal remedy.  Here, plaintiff's remedies under the UCL were all equitable, and the federal court lacked equitable jurisdiction over them because the CLRA offered the… Read More

Distinguishing Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, this decision holds that the ambulance EMTs transporting plaintiff from one psychiatric hospital to another owed her a duty of care to prevent her from harming herself.  Hernandez involved a patient who voluntarily asked to be transported to a hospital but then freaked out after she arrived there.  In this case,… Read More

The settlement released claims of all class members who had bought iPhones on which Apple software throttled performance to avoid overtaxing the battery, but the settlement fund was payable only to those class members who submitted an attestation that they had experienced the slowing of the iPhone's functions as a result of the throttling.  This decision holds that the settlement… Read More

Incentive awards to individual plaintiffs in a class action are permissible when reasonable in amount and not an improper preferential allocation of substantial settlement funds to individual plaintiffs to the class' detriment. Read More

Though it did most other things right, the district court erred in expressly employing the wrong standard to decide whether the class action settlement in this case was fair, just, and equitable.  In a pre-certification settlement, like this one, the district court may not presume the settlement is reasonable but must instead exercise heightened scrutiny.  Application of the wrong standard… Read More

The district court correctly dismissed this suit on claim preclusion grounds.  A different environmental advocacy group had earlier brought suit in Oregon challenging the same Fish & Wildlife plan for bull trout.  The Oregon district court dismissed the complaint with leave to amend.  The plaintiff elected not to amend, instead appealing unsuccessfully.  Then the current plaintiff sued to challenge the… Read More

Medicare regulations allow MediCal to place a lien on and recover medical expenses it paid for a plaintiff due to injuries suffered by reason of a third party tortfeasor's wrongs.  However, the MediCal recovery may be made only from the portion of any recovery by the plaintiff for past medical expenses, not from other portions of the award or settlement. … Read More

The hirer of an independent contractor may, despite the Privette doctrine, be liable for injuries suffered by the contractor's employees if the hirer furnishes faulty equipment and asks or requires the contractor or its employees to use that equipment.  But not so if the hirer merely allows the contractor or its employees to use the faulty equipment.  In the latter… Read More

An arbitrator did not exceed her powers and the trial court correctly refused to vacate the arbitration award under CCP 1286.2(a)(4) for exceeding powers.  The award limited the indemnity to which the parties' contract otherwise entitled defendant on equitable grounds. Nothing in the agreement prohibited the arbitrator from doing so.  Absent express provision to the contrary, the arbitrator may reasonably… Read More