Following Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, this decision holds that the FTC Holder Rule does not limit recovery of attorney fees, prejudgment interest, and costs. Read More
Defendant attorney's threats to reveal plaintiff's alleged crimes to a merger partner when coupled with a demand to settle the defendant's client's employment claims constituted extortion. Extortion is the threat to reveal damaging information if money isn't paid. There is no need to prove that the threat has been carried out. Extortion is not protected speech. Flatley v. Mauro (2006)… Read More
Lab. Code 1102.6 prescribes the burdens of proof on a claim for retaliation against a whistleblower in violation of Lab. Code 1102.5. First, the employee-whistleblower bears the burden of proving by a preponderance of the evidence that retaliation against him for whistleblowing was a contributing factor in the employer’s taking adverse employment action against him. Then, the employer bears the… Read More
The court that decided in Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1158 that "prevailing party" under the Song-Beverly Act (Civ. Code 1794) was governed by CCP 1032's net monetary judgment standard, now abandons that holding and holds instead that prevailing party is determining under Civ. Code 1794 as it is under Civ. Code 1717 by the… Read More
A 998 off to pay $28,000 or a higher amount” if plaintiff provided documentation that such a higher amount was warranted was too vague to be enforceable. Read More
Tricked by a hacker's sending emails purportedly from her boss, Ernst's accounts payable clerk wire transferred $200,000 to banks from which the money was swiftly withdrawn. Ernst sued its insurer to recoup its losses. This decision holds that the loss fell within the computer fraud coverage of loss “resulting directly from the use of any computer to fraudulently cause a… Read More
Under Welf. & Inst. Code 15610.57 and 15657, authorize enhanced remedies for the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise." Building on Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, this decision… Read More
San Francisco's ordinance (SF Admin Code 37.10(A)(1)) making it unlawful for a landlord to seek to recover possession of a rental unit that is exempt from rent control by means of a rental increase that is imposed in bad faith to coerce the tenant to vacate the premises is not preempted by Civ. Code 1954.52, which exempts newly constructed dwellings… Read More
Gov. Code 831.7 (dealing with hazardous recreational activities) immunizes Santa Barbara from liability for the death by drowning of a paddle boarder. Stand-up paddle boarding is a hazardous recreational activity. Santa Barbara had no duty to warn as the risk of falling from the paddle board and drowning was inherent in the sport. Santa Barbara was not grossly negligent, having… Read More
Defendant requested a jury and posted jury fees but withdrew his jury request the first day of trial. Plaintiff then demanded a jury but hadn't posted jury fees. The trial court found plaintiff had waived the right to a jury trial and it denied relief from that waiver. Plaintiff did not immediately seek a writ to challenge the waiver ruling.… Read More
Where a prevailing plaintiff succeeded on only some claims, the court should make a two-part inquiry: “First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? Here, the… Read More
A well-established departure from the hearsay rule applies when the very fact in controversy is whether certain things were said, and not whether these things were true or false. Hence, in a breach of contract case, the contract is not hearsay. The contract must be authenticated, but here the plaintiff did so by showing that it had received an assignment… Read More
A landlord cannot avoid a lessee's right of first refusal as provided in the lease by selling a larger parcel of which the leased premises is a smaller part. In that situation, the third party buyer's offered price must be equitably apportioned to the leased premises in the proportion its square footage or appraised value bears to the square footage… Read More
A party may seek expungement of a lis pendens on any of four grounds: (1) the lis pendens is void and invalid for lack of service on all defendants and owners of the property (CCP § 405.23), (2) the action as pleaded does not contain a real property claim (CCP § 405.31), (3) the claimant fails to establish the probable… Read More
Following Usher v. White (2021) 64 Cal.App.5th 883, this decision holds that, under Lab. Code 558.1, an owner, officer, director, or managing agent of the employer may be held liable for the employer's violation of an IWC wage order or of certain wage and hour sections of the Labor Code if the individual defendant had some oversight of the employer's… Read More
The Federal Motor Carrier Safety Administration's regulations under the Federal Motor Carrier Safety Act preempt California state laws governing meal and rest breaks for truckers, both long-haul and short-haul, in accordance with the Administration's interpretation of its own regulations to which deference is owed. Read More
Under Evid. Code 1158, a medical care provider must make patients' medical records available for their attorneys' inspection. The section also limits how much the medical care provider may charge for making copies of the records for the patient or his attorney. In Thornburg v. Superior Court (2006) 138 Cal.App.4th 43, the court held that the fee limits also apply… Read More
Following David S. Karton, A Law Corp. v. Dougherty (2014) 231 Cal.App.4th 600, this decision holds that when a defendant pays a default judgment entered against him before successfully moving to vacate the default judgment (and hence before filing an answer), Civ. Code 1717(b)(2) applies, making the defendant the prevailing party for purposes of a fee award if the plaintiff… Read More
Ordinarily, an order on a motion for an attorney fee award is appealable as a post-judgment order under CCP 904.1(a)(2). But here, to maintain the trial court's jurisdiction to enforce a settlement agreement, the parties agreed that judgment would not be entered dismissing the action until after defendant had paid the settlement amount and any attorney fees awarded by the… Read More
An order in a tort suit denying a defendant's claim of derivative federal sovereign immunity is not appealable under the collateral order doctrine because any error can be corrected on appeal from a final judgment. Derivative sovereign immunity and government contractor immunity provide immunity from liability not immunity from suit. Read More
