This decision holds that (1) a probate court does not have inherent equitable power to award attorney fees except from a beneficiary's share of a trust or estate involved in the litigation, but (2) Probate Code 15642(d), the court may award attorney fees against a party payable from his personal assets for filing a bad faith petition to remove a… Read More
Under 28 U. S. C. §1782, a district courts may order testimony or the production of evidence “for use in a proceeding in a foreign or international tribunal.” The statute reaches only governmental or intergovernmental adjudicative bodies, not private arbitral panels. Read More
This decision holds that an employer did not have to pay job applicants for the time and expense of taking drug tests as a precondition for employment. The employer's control over the drug tests was not control over the performance of work and so didn't make the applicants employees. Nor was the drug test a condition subsequent to employment. Instead,… Read More
The district court correctly dismissed this 1983 action brought by entities that had interests in California Insurance Company, an entity that the California Insurance Commissioner had sued to place in conservation in a California state court due to various unapproved corporate transactions. Under the prior exclusive jurisdiction doctrine, when a court of competent jurisdiction has obtained possession, custody, or control… Read More
Following Van Patten v. Vertical Fitness Group, LLC (9th Cir. 2017) 847 F.3d 1037, 1044-1045, this decision affirms summary judgment for defendant in this TCPA suit based on a finding that plaintiff gave his express consent to defendant's text messaging his cellphone. A person who knowingly releases his cellphone number consents to be called at that number so long as… Read More
Plaintiff, a Russian citizen residing in Russia, obtained an arbitration award against defendant, a Russian citizen residing in California. Plaintiff domesticated the arbitration award, securing a judgment against defendant in a federal district court in California so that plaintiff could execute on defendant's California assets. Thereafter, defendant engaged in a series of complex domestic and foreign efforts to shelter his… Read More
Plaintiffs failed to allege a viable claim of trespass to chattels against defendants whom they alleged accessed and copied, without authority, computer files containing private legal and medical information about them and other workers compensation plaintiffs. Under Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, a trespass to chattels claim cannot be stated for computer hacking (either sending or copying… Read More
Under Probate Code 145, a spouse waives his or her interest in the other spouse's estate by entering into "a complete property settlement agreement after or in contemplation of a separation, dissolution or annulment of their marriage." This decision holds that to operate as such a waiver, the settlement agreement need not recite that it waives that right nor that… Read More
This decision affirms the CFPB's judgment against CashCall under 12 U.S.C. § 5536(a)(1)(B) which prohibits unfair, deceptive or abusive acts or practices in consumer finance. CashCall made loans to consumers at rates that were usurious under the laws of the states where they resided, attempting to circumvent those laws by a choice of Indian tribal law in its loan agreements. … Read More
This decision affirms dismissal of a 10b-5 securities complaint, holding that the complaint did not adequately allege falsity or loss causation. The alleged omission concerned the results of a stage 1 drug trial for a cancer treatment drug. Nektar reported that the drug increased cancer-fighting T cells by 30 times in the stage one test group of 10 patients. Plaintiffs… Read More
Under Rule of Professional Conduct 1.12, a former judge may not act as counsel in connection with a matter in which the he participated personally and substantially as a judge without the informed written consent of all parties. This decision affirms an order disqualifying a former judge under this rule. It holds that any party to the proceeding in which… Read More
This decision affirms a summary judgment for Walmart on a model's claim for waiting time penalties for Walmart's failure to pay her all earned wages after each one- or two-day photo shoot. Although triable issues of fact remained as to whether plaintiff was an employee to whom Labor Code 203 applied, Walmart had established its defense of a good faith… Read More
Following City of Oakland v. BP, PLC (9th Cir. 2020) 969 F.3d 895, this decision holds that there is no federal subject matter jurisdiction over San Mateo's public nuisance suit against energy companies for promoting use of their fossil fuels thereby causing global warming and rising sea levels that threatened harm to county property. The county's state law claims do… Read More
Testimony by individual legislators (or here, county supervisors) is inadmissible to prove legislative intent since the requisite intent is that of the entire body, not the individual legislator or supervisor. Read More
The Song-Beverly Act's replace-or-refund remedy applies only to unrepaired defects in new cars, which the Act defines to include dealer owned and demonstrator cars or other motor vehicles sold with a manufacturer’s new car warranty. (Civ. Code 1793.22(e)(2).) This decision holds that a car which was previously sold to another consumer is not a "new" car for these purposes even… Read More
The district court abused its discretion in denying class certification on the ground of lack of numerosity in this Title IX case charging unequal sports programs for females in Hawaii state schools. The absolute size of the class--300 currently enrolled students--satisfied numerosity, as the plaintiff's claims challenged the state's overall treatment of female athletes, necessarily affecting all 300 female athletes. … Read More
Following Ritzen Group, Inc. v. Jackson Masonry, LLC (2020) 140 S.Ct. 582, this decision holds that an order denying relief from the automatic stay is immediately appealable so long as it finally resolves the issue of whether the movant is entitled to relief from stay on the basis on which relief was sought, even if the denial is without prejudice… Read More
In the 9th Circuit, courts apply the "primary purpose" test to determine whether an attorney-client communication for the dual purpose of tax or business advice and legal advice is attorney-client privileged. This decision affirms the district court's use of that test rather than the "because of" test used for work product protection (from the totality of the circumstances was the… Read More
Generally, a landlord does not owe a duty of care with respect to open and obvious dangers on the property. There is an exception, however, when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition. Here, the exception applied because the obviously dangerous stairway, with uneven risers and no handrail, led… Read More
In response to a contention interrogatory about whether plaintiff, the borrower, contended that notice of foreclosure had not been properly served, plaintiff answered "unsure." This decision holds that plaintiff is bound by that deliberately ambiguous answer and cannot, in opposition to a summary judgment motion, suddenly claim that she now is certain she never received notice of the foreclosure sale. … Read More
