California Appellate Tracker

An arbitration award may be set aside if “procured by corruption, fraud or other undue means."  (CCP 1286.2(a)(1).)  This decision holds that the opponent's citing a statute that wasn't effective until after the events giving rise to the arbitrated claims is not an undue means because the losing party had ample opportunity at and after the arbitration hearing to bring… Read More

An arbitrator’s power to “correct” an award under CCP 1284 and 1286.6 is narrowly “limited to evident miscalculations of figures or descriptions of persons, things or property [citation] and nonsubstantive matters of form that do not affect the merits of the controversy. But an arbitrator also can exercise a nonstatutory power to amend the award if “an issue is omitted… Read More

CCP 1281.97(a)(1) provides that the party that drafted a consumer or employee arbitration agreement must pay its share of the arbitration fees within 30 days of the payment due date.  Failure to do so is a material breach of the arbitration agreement, allowing the opposing party to elect out of arbitration.  This decision holds that the 30-day deadline is firm,… Read More

“In divining a term’s ‘ordinary meaning,’ courts regularly turn to general and legal dictionaries.” (De Vries v. Regents of University of California (2016) 6 Cal.App.5th 574, 591.) But, courts “must exercise ‘great caution’ when relying on a dictionary definition of a common term to determine statutory meaning because a dictionary ‘ “is a museum of words, an historical catalog rather… Read More

The trial court correctly granted the defendant water pipe (hookah) manufacturer judgment on the pleadings against plaintiff's claim that it violated Prop. 65 by failing to warn that if used to smoke marijuana, the hookah would expose the smoker to marijuana smoke that contains carcinogens.  The opinion follows regulations implementing Prop. 65 in holding that the proposition covers only products… Read More

This decision reverses a judgment for the employee in a suit for unpaid overtime wages because of a botched special verdict question regarding the employer's affirmative defense that the employee was an exempt executive under Wage Order No. 5.  The question asked only if the employee spent more than 50% of her time on exempt duties.  The question overemphasized the… Read More

Under 11 USC 365, a bankrupt may assume a lease that "has been" in default only if it (a) cures the default, (b) compensates the landlord for any monetary loss caused by the default, and (c) provides adequate assurance of future performance of the lease.  This decision holds that the bankrupt must satisfy the three conditions with respect to the… Read More

Under CCP 473(d), a court may correct a clerical error in a judgment at any time.  This decision holds that the trial court properly invoked that authority to correct the renewal of a judgment.  The original judgment had been against Audrey Douglas in her capacity as administrator of Billy Joe Douglas' estate.  The judgment creditor's application for renewal of the… Read More

On remand after Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995 held that 8 of Bonni's 10 retaliation claims arose from protected activity under CCP 425.16(e), this decision holds that the absolute litigation privilege precludes Bonni from proving a probability of success on those 8 claims.  Defendant's reports to the Medical Board are statutorily required and hence subject… Read More

This decision holds that the insured's original complaint failed to allege a covered business interruption loss due to COVID-19 stay-at-home orders.  However, it also holds that it was error to deny the insured leave to amend since the demurrer had been sustained to the insured's original complaint, the insured requested leave to amend and described in some detail what additional… Read More

Following Arroyo v. Rosas (9th Cir. 2021) 19 F.4th 1202, this decision affirms the district court's order declining supplemental jurisdiction over Unruh Act claims in this disability discrimination case.  California's procedural restrictions on disability discrimination suits under Civ. Code 52(a) and 55.56 are an exceptional circumstance warranting the refusal to exercise supplemental jurisdiction (which would allow plaintiffs the chance to… Read More

Good language requiring appellant to address in the opening brief arguments the respondent made in the trial court, even if not relied on by that court in entering the appealed order since the appellate court reviews the correctness of the appealed order not the reasons the trial court states for entering it. Read More

Under CCP 1987.2, a party that moves to quash a subpoena for that party's personal identifying information may recover attorney fees upon demonstrating (i) he prevailed on the motion to quash, (ii) the underlying action arises from the party's exercise of free speech rights on the Internet, and (iii) the plaintiff in that proceeding did not make a prima facie… Read More

Following SEIU Local 121RN v. Los Robles Regional Medical Center (9th Cir. 2020) 976 F.3d 849, this decision holds that, at least with respect to delegation of arbitrability questions to the arbitrator, arbitration clauses in collective bargaining agreements are to be interpreted just like arbitration clauses in other types of contracts.  A broad arbitration provision in a collective bargaining agreement … Read More

The trial court erred in granting defendant summary judgment based on expiration of the statute of limitations (CCP 340.5) in this medical malpractice case arising from a stillbirth following an operation to turn the fetus to a head-down position for birth.  There was a question of fact as to whether plaintiff subjectively suspected malpractice the day before delivering the stillborn… Read More

Neither claim nor issue preclusion applies when the prior judgment was obtained against a person acting in a different capacity than the capacity in which he brings the second suit, at least so long as the second suit is also brought on a different right.  Here, the court applies that principle to hold that an arbitration award and judgment against… Read More

Plaintiff, a retired state government employee, sued the closed shop union for deducting dues from her wages even though she never joined the union.  The decision affirms dismissal for lack of jurisdiction as to her claims for prospective declaratory and injunctive relief because she was no longer employed and so not threatened with any future deduction of union dues from… Read More

Plaintiff stated viable UCL and CLRA claims against Walmart based on its deceptive advertising of its "white baking chips." A reasonable consumer was likely to think, wrongly, that the product contained chocolate because the product was formed into chips that looked like chocolate chips, they were called "white" which could be understood as short for white chocolate, and were placed… Read More

Plaintiff stated viable UCL and CLRA claims against Target based on its deceptive advertising of its "white baking chips."  The product's price tag said "WHT CHOCO" while the product's label didn't clearly say whether the white baking chips contained or did not contain chocolate.  A reasonable consumer could read the price tag and believe that the chocolate chip-like white baking… Read More

Under Gov. Code 12965(c)(3), an action in which one cause of action is for violation of FEHA (even if joined with other claims) may be brought, among other venues, where the violation occurred or where the plaintiff would have worked but for the alleged violation.  This decision holds that venue in this pregnancy discrimination case was proper in Los Angeles… Read More