By failing to raise, in its opening memo on the motion to compel arbitration, the fact that the arbitration agreement contained a delegation clause that provided for the arbitrator to decide arbitrability issues, the defendant waived its right to rely on the delegation clause, and the court properly decided the arbitrability issues. Waiting to raise delegation until the reply memo… Read More
Following Ahlstrom v. DHI Mortgage, Inc. (9th Cir. 2021) 21 F.4th 631, this decision holds that the court must always decide whether the party opposing arbitration entered into the agreement containing the arbitration clause. That issue cannot be delegated to the arbitrator because the delegation clause itself is invalid if the opposing party didn't enter into the agreement containing it. Read More
The FCRA (15 U.S.C. 1681g does not require the CRA to disclose to a consumer on request information that the CRA collects on a consumer but would not place in a consumer credit report given to an actual or potential creditor, nor soft credit inquiries that, likewise are not reported in credit reports, nor information derived from the consumer's file… Read More
As the party invoking federal judicial power, the removing defendant bears the burden of establishing the facts necessary to support Article III standing (with the manner and degree of evidence appropriate to the stage of litigation--which on a motion for remand means taking alleged facts to be true). Here, Experian established plaintiffs' standing. They alleged that Experian had violated 15… Read More
Under 17 USC 411(b), a certificate of registration of a copyright is effective and satisfies the registration-before-suit requirement of 411(a) even if the certificate contains inaccurate information unless the applicant submitted the information with knowledge it was inaccurate and Register of Copyrights would have refused registration had it known of the inaccuracy. Reversing the Ninth Circuit (Gold Value Int'l Textile,… Read More
If a trust provides a procedure or method for amending the trust, whether phrased as exclusive or optional, any amendment must conform to that procedure or method; otherwise it is invalid. Prob. Code 15402’s “qualification ‘[u]nless the trust instrument provides otherwise’ indicates that if any modification method is specified in the trust, that method must be used to amend the… Read More
A school does not owe a student a duty to indemnify the student for attorney fees the student incurred in defending a suit by a football referee who claimed he was injured during a school-sponsored football game by plaintiff's post-play tackle of an opposing player who fell on the referee. Neither the free school provision of the California Constitution nor… Read More
Sanctions may not be awarded under CCP 128.7 unless the party to be sanctioned has been given a full 21 days in which to withdraw the offending pleading. The 21 days are calculated by omitting the day on which notice of the proposed sanctions motion is served and including the last day. So the earliest the sanctions motion can be… Read More
Under Civ. Code 3333.2(c)(2), noneconomic damages in a medical malpractice case are limited to $250,000 unless the defendant provided services that exceeded "the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." This decision holds that section 3333.2 applies to a physician's assistant who has… Read More
CCP 902 allows an appeal only by a party "aggrieved" by the appealed order or judgment. Here, the watermaster appointed by the court to administer its judgment allocating water rights among claimants to the same river was not aggrieved and therefore lacked standing to appeal from a trial court order which interpreted the 60-year-old judgment allocating water rights among the… Read More
The district court abused its discretion in excluding the testimony of plaintiff's fire investigator expert witness. Defendant conceded that the expert was qualified and used generally accepted methodology. The district court improperly found there was too big a gap between the facts on which the expert based his opinion and the conclusions he drew from those facts. The district court… Read More
Under CCP 1174.3, an occupant of a premises that is not an invitee, licensee, guest, or trespasser may file a claim of right to possession of the premises to forestall eviction from the premises under an unlawful detainer judgment rendered in a case to which the occupant was not made a party. To be valid the claim must show that… Read More
Hill's umbrella insurance did not provide coverage for bodily injuries Gardineer sustained in a car accident caused by Hill's niece while she was driving Hill's car with his permission. The umbrella policy extended coverage only to "insureds" a term it defined to include only the named insured, his wife and other relative who resided in the named insured's house. The… Read More
For a federal Court of Appeals to have jurisdiction over an interlocutory appeal under 28 USC 1292(b), the district court must first find that (a) there is a controlling question of law, (b) there are substantial grounds for difference of opinion on that question, and (c) immediate resolution of the question would materially advance the ultimate termination of the litigation. … Read More
Lab. Code 970 prohibits an employer from inducing an employee to relocate and accept employment by means of knowingly false representations about the kind, character, or existence of work or how long it will last. Here, the trial court erred in granting the defendant employer summary judgment on plaintiff's claim under section 970. The at-will employment contract that the plaintiff… Read More
When an Anti-SLAPP motion attacks a mixed cause of action, the motion must identify the portions of the cause of action that allege protected activity, but when the motion attacks an entire cause of action, it does not need to identify the activity at issue, since by default it claims that all activity mentioned in the cause of action is… Read More
There is no right to a jury trial in a PAGA suit. In such a suit a private plaintiff brings on the state's behalf a claim that otherwise would be handled by an administrative agency subject to trial court review, both without jury. It would be anomalous to grant the private plaintiff greater rights than the administrative agency in whose… Read More
In this FEHA employment discrimination case, the court holds the employer's arbitration clause was substantively unconscionable because (1) it required the employee to demand arbitration or complain to the employer within the time for filing an administrative complaint with the FEHC, whereas the statute of limitations on the claim would potentially extend two more years, one for the FEHC to… Read More
The district court did not abuse its discretion in denying class certification in this case involving the valuation of totaled cars. While defendants might have uniformly violated a Washington state insurance regulation requiring itemization of deductions in calculating the car's value, there was no private right of action under the regulation. Plaintiffs sued for breach of contract and unfair trade… Read More
The district court denied defendant's Anti-SLAPP motion to dismiss the first amended complaint's defamation claims but granted defendant's motion to dismiss the other claims with leave to amend. Plaintiff filed a second amended complaint before defendant appealed from the order denying the Anti-SLAPP motion. This decision holds that the filing of the second amended complaint mooted the appeal from the… Read More
