California Appellate Tracker

The trial court correctly granted defendant's anti-SLAPP motion to strike plaintiff's Rosenthal Fair Debt Collection Practices Act suit because plaintiff could not show a likelihood of prevailing on the claim.  Civ. Code 1788.17 incorporates provisions of the federal Fair Debt Collection Practices Act, including 15 USC 1692e which forbids false statements in attempts to collect debts and misrepresentation of the… Read More

The trial court correctly granted defendant's anti-SLAPP motion to strike plaintiff's Rosenthal Fair Debt Collection Practices Act suit because plaintiff could not show a likelihood of prevailing on the claim.  Civ. Code 1788.17 incorporates provisions of the federal Fair Debt Collection Practices Act, including 15 USC 1692e which forbids false statements in attempts to collect debts and misrepresentation of the… Read More

Defendant in this lemon law case made a proper 998 offer of $35,001 plus either (a) $10,000 for pre-offer fees and costs, or (b) the sum the court awards for preoffer fees and costs (at the plaintiff's election) in exchange for dismissal of the case and return of possession of and title to the car.  Even though the lemon law… Read More

Plaintiff bought a set of tires from WalMart.com, agreeing to its online terms which included an arbitration agreement.  He sent the tires to a local WalMart to be installed on his car.  While in the store, plaintiff bought WalMart's "lifetime" service contract for tire rotation and balancing.  That service contract did not include an arbitration clause.  This decision affirms the… Read More

In a case governed by federal law, the arbitrator not the court decides whether the defendant has waived arbitration at least by acts other than participation in litigation.  But under California law, the court decides issues of waiver.  (CCP 1281.2(a).)  In this case, despite a choice of FAA law in the arbitration clause, California law governed this issue because plaintiffs'… Read More

Heirs who filed a medical malpractice wrongful death suit lack standing to challenge the constitutionality of MICRA's limits on noneconomic damages (Civ. Code 3333.2) and attorney fees (B&P Code 6147).  Plaintiffs' attorney had not withdrawn or moved to withraw due to the statutory limits on attorney fees.  Moreover, there is no constitutional right to an attorney in civil litigation.  Plaintiffs… Read More

In a suit between step-siblings of a 96-year old multi-millionaire, this decision holds that the trial court properly denied an Anti-SLAPP motion to strike the plaintiffs' claim for an elder abuse restraining order.  The claim did not arise from the defendants' protected litigation activities but from their non-protected acts of isolating the 96-year-old and causing him anxiety by importuning him… Read More

Following Marina Pacific Hotel & Suites, LLC v. Fireman's Fund Ins. Co. (2022) 81 Cal.App.5th 96, this decision holds that a complaint alleging that COVID-19 physically changes the business premises by virus-infected droplets adhering to surfaces and transforming them into disease-spreading modalities states an actionable claim for coverage under standard CGL business interruption coverage language. Read More

While in the hospital, plaintiff was assaulted by a psychiatric patient at the same hospital.  Plaintiff sued the hospital claiming it failed to take reasonable measures to protect plaintiff from the assault which it should have anticipated from information available to the hospital's psychiatrist.  This decision holds that the trial court erroneously concluded that plaintiff was not entitled to discovery… Read More

Patient's lawyer's first letter to hospital was not a notice of intent to sue for medical malpractice under CCP 364; only a later letter provided that notice and extended the limitations period by 90 days.  The first letter was devoted mostly to a request that the hospital preserve its records regarding the incident in which plaintiff was injured by an… Read More

The city sued Cordoba for submitting fraudulent invoices under a contract for it to provide consulting services in connection with a proposed solar energy farm.  Cordoba cross-complained, alleging that the city breached the contract by disputing the invoices after the 30-day limit provided for in the contract and breached the covenant of good faith by investigating the fraud.  The cross-complaint… Read More

The employer properly computed overtime pay in accordance for pay periods in which it paid plaintiff an hourly wage and a percentage bonus on sales.  The employer used the method prescribed for FSLA overtime (29 CFR 778.210), applying instead the DLSE's Enforcement Manual method (section 49.2.4) would result in an improper overtime on overtime since the bonus already was computed… Read More

Plaintiff was arrested.  When he was booked, the police confiscated the cash he was carrying.  When plaintiff was released, the police gave him a prepaid debit card with a credit balance in the amount of cash they had confiscated at his booking.  Plaintiff used the debit card shortly after his release to withdraw the full credit sum in cash.  This… Read More

A summary judgment motion must be filed at least 75 days (plus added days for other than personal service) before the hearing date which must be at least 30 days before the scheduled trial date.  However, if a summary judgment motion is properly filed and served 105 days (plus added days for non-personal service) before trial, the trial court must… Read More

This decision holds that an attorney's jury selection notes are not subject to absolute attorney work product protection in connection with a challenge to the jury panel or the judgment based on racial or other discriminatory use of peremptory challenges or claimed the Batson/Wheeler error.  An attorney’s jury selection notes are unlikely to reveal impressions, conclusions, or opinions about the… Read More

The district court did not abuse its discretion in certifying two California and one national classes in a suit by detained immigrants against the private company that ran the detention centers.  The defendant's written corporate policies required inmates to work, cleaning bathrooms and other public areas under threat of discipline, and the defendant had a policy of misclassifying inmates as… Read More

Plaintiff did not agree to a franchisor's arbitration clause, so the trial court correctly denied the franchisor's motion to compel arbitration.  The arbitration clause was contained in the franchisor's "terms and conditions of service" which were available to the plaintiff only by checking an inconspicuous link on a tablet device handed to plaintiff as she appeared for her monthly massage… Read More

This decision affirms orders denying motions to vacate default and vacate the default judgment.  The default was based on substitute service of the complaint on a co-resident of a gated community.  There was sufficient evidence in the process server's proofs of service to support the trial court's conclusions that diligent efforts were made to serve the defendants personally before resort… Read More

The supplementary payments provision of this contractor's CGL policy provided that if the insured contractor faced liability for personal injury or property damage pursuant to an indemnity provision in one of the insured's contracts, the insurer would pay for the insured's defense but count any recovery by the indemnitee as damages against the $1 million limit on coverage.  The supplementary… Read More

The federal Children's Online Privacy Protection Act (COPRA; 15 USC 6501-6506) and the FTC's implementing regulations (16 CFR 312.2) forbid collection of children's "persistent identifiers" without parental permission.  Here, plaintiffs alleged solely state law claims against Google for tracking their children's internet usage of YouTube using persistent identifiers without their parents' permission.  COPRA's express preemption provision (15 USC 6502(d)) preempts… Read More