California Appellate Tracker

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

Doctors sued county for the unreimbursed portion of their invoices for emergency medical treatment given to participants in the county's health plan.  Under the Knox-Keene Act, a health plan must reimburse noncontracting health care providers for the reasonable value of the emergency care they render to health plan participants.  A provider that thinks it has been underpaid may sue a… Read More

The registrar of voters gave Brennan wrong information about the number of signatures needed to qualify a proposition for the ballot, causing Brennan to expend more to get more signatures than actually needed to place its proposition on the ballot.  Brennan sued the county for the registrar's negligent misrepresentation.  Held, county's demurrer should have been sustained.  Gov. Code 818.8 and… Read More

Reversing dismissal of this antitrust suit, the decision holds that plaintiff's complaint adequately alleged a violation of Sherman Act section 1 by reason of NAR's Clear Cooperation Policy which required realtors who listed properties on a rival multiple listing service, such as plaintiff's, to also list those properties on an NAR listing service.  The complaint alleged that the claimed violation… Read More

This decision affirms denial of defendant's motion to disqualify the private attorneys whom San Diego hired on contingency fee contracts to prosecute this suit for civil penalties under B&P Code 17200.  The contingency fee contracts specified that the City Attorney retained ultimate control over the litigation or its settlement, and the contracts contained other clauses required under County of Santa… Read More

Dameron required emergency room patients to sign a "conditions of admission" agreement, which assigned to the hospital the patients' rights under their auto insurance policies' uninsured or underinsurance motorist coverages and under the medical payments coverage.  This decision holds that assignment of un-or underinsured motorist coverage is contrary to public policy and unenforceable because it is merely a way to… Read More

Following State of California ex. rel. Dept. of Transportation v. Superior Court (Hall) (1985) 37 Cal.3d 847, this decision holds that,under Veh. Code 20012, a plaintiff is an "interested person," entitled to production of unredacted motor vehicle accident reports showing names and contact information for drivers and witnesses involved in other similar accidents at or around the same location as… Read More