Under St. Agnes Medical Center v. Pacificare of California (2003) 31 Cal.4th 1187, a court cannot hold that the defendant waived the contractual right to arbitrate solely by delayed assertion of that right, absence a showing of prejudice by the opposing party. Here, defendant waited 13 months after plaintiff filed suit to move to compel arbitration and took plaintiff's deposition… Read More
California Health & Safety Code 25982 bans the sale in California of foie gras produced by force feeding geese. The law is not preempted by the federal Poultry Products Inspection Act. Even assuming that the USDA has exercised its authority under PPIA to require that foie gras be produced by fore feeding geese, California's statute does not conflict with federal… Read More
While an easily correctible defect is not a disability protected under the Americans with Disabilities Act, a disability need not be permanent or long-term to be protected. Here, the employee adequately alleged an ADA claim against her former employer by pleading facts plausibly establishing that she had a physical impairment both during an immediate post-surgical period after a bone biopsy… Read More
Amato violated Riverside County's local rule about filing jointly prepared pretrial statement witness and exhibit lists, and jury instructions the first day of a jury trial or before. As a result, the trial court held that Amato had waived his right to a jury trial, and after hearing his evidence, granted a motion for judgment under CCP 631.8. This decision… Read More
One union representing some of Antioch's employees brought an administrative grievance making the same claim as the retired employee plaintiff brought in this later suit--that the City was stinting them on contributions for their benefit to CalPers, This decision holds that the due process limits on collateral estoppel keep it from operating to bar the current suit based on the… Read More
Plaintiff served a notice of levy on Zions' agent for service of process, Corporation Service Company (CSC), attempting to levy on funds the judgment debtor held in two bank accounts at Zions. CSC rejected the levy because someone had underscored, by hand, the name of a corporate defendant in the caption of the notice of levy. CSC thought that was… Read More
To maintain a derivative action on behalf of a limited liability company under Corp. Code 17709.02, just as required for a shareholder to bring a derivative action on a corporation's behalf under Corp. Code 800, the plaintiff must maintain continuous membership in the limited liability company from the time of the alleged wrongful acts through completion of the derivative action. … Read More
An exclusive implied easement which, for all practical purposes, amounts to fee title cannot be justified or granted unless: 1) the encroachment is “de minimis” or 2) the easement is necessary to protect the health or safety of the public or for essential utility purposes. Here, a wall erected on what the prior owner of both adjoining lots thought was… Read More
Particularly as amended in 2019, Civ. Code 2923.7 requires a loan servicer to appoint a SPOC for each borrower who seeks a foreclosure alternative. The borrower need not specifically request a SPOC in order to trigger the statute. Interpreting Civ. Code 2924.12, the decision holds that for post-foreclosure damages purposes, the court must analyze harm in three steps. First, did… Read More
Flags often are raised as a form of government speech on government-owned property. The government has the right to control its own speech including what flags it flies. However, in this case, Boston allowed private groups to fly their flags from government-owned poles about 20 times a year. Those flag-flying days were not government speech. So on those days, the… Read More
Duress by a third person who is not a party to the contract is not a ground on which a party may avoid a contract, at least so long as the other contracting party is not aware of the duress and relies on the contract in good faith. Thus, here, plaintiff could not avoid her settlement agreement with defendant on… Read More
A school owes its students a duty of care to protect them from foreseeable harm; that is, risks that the school knows or reasonably should know to exist. Here, the school had no prior indication that one of its teachers was having an affair with an underage student. The risk of inappropriate sexual behavior by teachers is not so great… Read More
The common law rule of exclusive concurrent jurisdiction applies to PAGA suits. Nothing in the PAGA statutes clearly or unequivocally evince an intent to abrogate that well-established rule in PAGA suits. Absence of an express first-filed suit requirement in the statute is insufficient to show such an intent. Invoking the exclusive concurrent jurisdiction rule, the trial court properly stayed this… Read More
Defendant moved for summary judgment, then made a Rule 68 offer of judgment in the amount of $50,000. Less than 14 days later, the court granted the summary judgment motion but didn't immediately enter judgment for defendant. Plaintiff accepted the Rule 68 offer. Held, the acceptance was effective. Under Rule 68, an offer of judgment remains open for 14 days. … Read More
A wrongful death claim under federal maritime law accrues on or after the date of death, not earlier when the victim (soon-to-be deceased) learns of his illness or injury. The statute accrues on date of discovery of the illness, however, on claims under survival statutes that abrogate the common law rule that tort claims died with the plaintiff. Where the… Read More
Plaintiff employee's initial complaint sought individual and class relief for Labor Code violations as well as PAGA claims for statutory penalties for the same violations. After defendant employer moved to compel arbitration, plaintiff amended the complaint to delete the individual and class claims, leaving only the PAGA claims. This decision holds that the amendment was effective to avoid arbitration. Under… Read More
Four federal statutes bar discrimination on the basis of race, gender, disability or other protected characteristics by recipients of federal financial assistance; namely Title VI and IX of the 1964 Civil Rights Act, the Rehabilitation Act and the Affordable Care Act. None of these acts expressly grant private rights of action to victims of discrimination that violates those Acts' provisions. … Read More
PAGA suits are not arbitrable. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 was not overruled by Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612 or Kindred Nursing Centers Ltd. Partnership v. Clark (2017) 137 S.Ct. 1421, neither of which involved the issue that Iskanian addressed. Read More
Defendant, a Delaware corporation with headquarters in California, had a federal forum provision in its articles of incorporation which provided that any claims against it under the federal Securities Act of 1933 had to be brought in federal, not state, court. This decision affirms an order dismissing without prejudice a Securities Act suit that one of the corporation's shareholders brought… Read More
As a Juul employee, Grove obtained stock options which he exercised to buy shares of Juul stock. Grove sued Juul in California asserting a claim for the right to inspect Juul's books and records and also class and derivative claims against Juul's officers and directors. The California court first stayed the inspection claim based on the forum selection clause in… Read More
