California Appellate Tracker

Austin's ordinance banning signs advertising goods or services not sold on the premises where the sign is located did not infringe sign owners' First Amendment rights.  Even though the ordinance required some examination of the contents of the advertising to determine whether it related to goods or services sold on the premises, the ordinance was facially content-neutral.  Austin's ’s on-/off-premises… Read More

Following Mudpie, Inc. v. Travelers Casualty Ins. Co. (9th Cir. 2021) 15 F.4th 885 and Inns-by-the-Sea v. California Mutual Ins. Co. (2021) 71 Cal.App.5th 688, this decision holds that business interruption insurance providing coverage for interruption due to physical loss or damage to property does not cover losses caused by the COVID pandemic or associated government-ordered shut downs of business… Read More

If a statute prescribes a time limit within which a petition, appeal or other pleading must be filed, it will be treated as jurisdictional only if Congress clearly states that the time limit is jurisdictional.  Jurisdictional time limits cannot be waived or forfeited, must be raised by courts sua sponte, and do not allow for equitable exceptions.  Here, the Court… Read More

Defendant residential care facility's arbitration clause was procedurally unconscionable as (i) it was a contract of adhesion, (ii) it incorporated the AAA rules but no copy of them was provided, and (iii) the facility required a patient undergoing an acute psychotic incident, who could not concentrate for more than 10-20 seconds to sign the clause.  The clause was substantively unconscionable… Read More

Following Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, this decision holds that an arbitration clause calling for the arbitration of "any dispute" arising in connection with a contract does not "clearly and unmistakably" call for the arbitrator rather than a court to decide issues of arbitrability.  A provision calling for arbitration in accordance with AAA rules which themselves grant… Read More

This decision affirms a judgment holding that Ins. Code 533 bars insurance coverage for a judgment against Conagra for the public nuisance caused by Fuller Paint's pre-1950 advertising promoting the use of lead-based paint for interior paint on residential units.  In the liability trial, the trial court found that Fuller had kwown at the time it made the advertisements that… Read More

An apex deposition of the head of a governmental department is allowed only with the agency head is shown to have direct personal factual (as opposed to legal) knowledge of information pertinent to material issues in litigation and the agency head's information is not available through another source.  Here, an apex deposition of the former district attorney was not allowed… Read More

On remand from the US Supreme Court for reconsideration in light of Van Buren v. United States (2021) 141 S.Ct. 1648, the Ninth Circuit reaffirms its holding that the district court did not abuse its discretion in entering a preliminary injunction barring LinkedIn from preventing HiQ from "scraping" data from public LinkedIn posts by threats of suit or technological blocking… Read More

The district court erred in granting defendant summary judgment in this case in which the plaintiff Mexican nationals alleged a claim under 18 USC 1595 which gives a private right of actions for forced labor in violation of 18 USC 1589(a).  The latter section prohibits obtaining labor by (among other things) means of abuse of law or legal process.  There… Read More

After judgment was entered against defendant, was set aside by the district court, and then reinstated on appeal, defendant filed motion for relief from the judgment again based on fraud on the court (Rule 60(d)) and based on newly discovered evidence and fraud (Rule 60(b)(2), (3)).  Plaintiff's judgment was for lost profits on its antitrust claims, but the new evidence… Read More

Distinguishing Microsoft Corp. v. Baker (2017) 137 S.Ct. 1702, Langere v. Verizon Wireless Services, LLC (9th Cir. 2020) 983 F.3d 1115, and Sperring v. LLR, Inc. (9th Cir. 2021) 995 F.3d 680, which involved voluntary dismissals in order to appeal from class certification orders or orders compelling arbitration, as to which Rule 23(f) or 9 USC 16 prescribe different appellate… Read More

Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process. The irreconcilable conflict between advocating for the agency on one hand, and being an impartial decisionmaker on the other, presents a particular combination of circumstances creating… Read More

In this case, plaintiff sued defendant under the CLRA for not disclosing the amount of its potential or likely emergency room evaluation and management services fee.  The court concluded that the complaint adequately alleged that defendant owed a duty to disclose the charge as that information was within its sole knowledge and not readily available to its patients.  The complaint… Read More

A federal court lacks subject matter jurisdiction over a class action under the Magnuson-Moss Warranty Act unless the complaint names 100 class members.  (Floyd v. American Honda Motor Co. (9th Cir, 2020) 966 F.3d 1027.)  Similarly, a federal court lacks subject matter jurisdiction over an MMWA case unless no claim in the amount in controversy on each claim exceeds $25… Read More

The trial court correctly denied this lawyer-defendant's Anti-SLAPP motion, finding that this suit to collect the agreed price for its services was not based on protected speech.  The fraud and concealment claim brought against the lawyer was for misrepresentations and concealments about the client-buyer's financial condition which induced plaintiff to enter into the services contract.  Communications at the pre-contract stage… Read More

Relying heavily on Anglo Irish Bank Corp. v. Superior Court (2008) 165 Cal.App.4th 969, this decision holds that a South Korean parent corporation is subject to specific personal jurisdiction in California based on activities its California subsidiary took in California in what the complaint charged was an antitrust conspiracy to fix spot market prices of fuel in California.  For personal… Read More

Employer's arbitration clause was unenforceable because it was unconscionable.  The clause was a mandatory, non-negotiable requirement of employment.  It was procedurally unconscionable because it was given to plaintiff only in English, which he cannot read, and without a schedule of the arbitration fees he could be charged.  It was substantively unconscionable because it allowed the arbitrator to shift attorney fees… Read More

This decision affirms all but $42 million of a $344 million judgment against Johnson under the UCL and FAL for misleading advertising and concealment of the serious risks entailed in using its pelvic mesh product to cure certain conditions in women.  The trial court applied the proper test in determining whether Johnson's instructions for use and other advertising would mislead… Read More

Statistical evidence is admissible to establish predominance under FRCivP 23(b)(3) if that evidence would be admissible in an individual action on the same claim, the statistical evidence is linked to the plaintiffs' theory of liability and the use of averaging assumptions does not conceal the variations that otherwise would defeat class certification.  Here, plaintiffs' statistical evidence satisfied those three tests. … Read More

Following Charnay v. Cobert (2006) 145 Cal.App.4th 170 and E-Pass Technologies, Inc. v. Moses & Singer, LLP (2010) 189 Cal.App.4th 1140, this decision reverses a summary judgment for the defendant attorneys in this malpractice action based on the allegation that the attorneys failed to warn plaintiff of the disadvantages of bringing the underlying suit in California where the defendant could… Read More