The costs of preparing exhibits for trial and demonstratives for closing argument that are not used are not costs recoverable as a matter of right under CCP 1033.5(a)(13), but may be recovered in the trial court's discretion under section 1033.5(c)(4). Read More
Owners of adjoining apartments mediated Doe's civil harassment prevention action, reaching an agreement that provided, among other things, that the parties agree not to disparage one another. This decision holds that read in light of the limited nature of the action and surrounding circumstances, the provision could not reasonably be read to ban Doe from saying negative things about Olson… Read More
BMW, the manufacturer, could not compel arbitration of the car buyer's breach of express warranty, Magnuson-Moss Act and Song-Beverly Act violations based on the arbitration clause in the retail installment sale contract that the plaintiff signed to buy the car. BMW was not a third party beneficiary of the arbitration agreement because while the agreement covered claims against non-signatory third… Read More
Arizona lacked personal jurisdiction over Continental (which built the airplane engine) and Textron (which acquired some assets of the plane's manufacturer) in a products liability suit by the plane's owner who had survived a crash alleged caused to defects in the engine. Neither defendant was subject to general jurisdiction in Arizona. Continental had not purposefully availed itself of Arizona's privileges. … Read More
A defendant that files an Anti-SLAPP motion to strike under CCP 425.16 may seek attorney fees (based on prevailing on the Anti-SLAPP motion) in one of three ways: as part of the Anti-SLAPP motion, by a post-judgment memorandum of costs, or by a post-judgment motion for an attorney fee award. This decision holds that if the defendant chooses either of… Read More
CCP 36 allows a party over 70 years old to move for trial preference if his health makes preference required to avoid prejudicing his interest. If preference is granted, trial must be held within 120 days. Here, the plaintiff/petitioner filed a CCP 36 motion for preference and met the statute's criteria. However, plaintiff's case was part of a coordinated group… Read More
Plaintiff secured a default judgment against defendant in 2008 based a proof of service showing service on him personally at a specified address. In 2018, plaintiff moved to renew the judgment and served notice of the motion on plaintiff by mail. Defendant first moved to set aside the renewed judgment submitting a declaration conceding that he had received notice of… Read More
Following Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, this decision holds that a valid and reasonable section 998 offer by the seller, where the buyer recovers less than the offer, precludes recovery by the buyer of post-offer attorneys’ fees and costs under Code of Civil Procedure section 1794(d) of the Song-Beverly Warranty Act claim. Here, the defendant's initial… Read More
The trial court erred in granting defendant's Anti-SLAPP motion to strike this defamation action. Defendant was a competitor of plaintiff in selling life insurance and wealth management services to Chinese and Chinese-American clients. Plaintiff alleged that defendant had falsely told insurance agents and one client that plaintiff was dishonest and unethical in her business practices and falsified insurance documents. Before… Read More
The California Department of Health Care Services administers the MediCal program. For purpose of computing a person's financial ability to pay for medical care during his lifetime, the department omits the worth of his residence. However, after the person's death, the department is entitled to collect reimbursement for medical care it paid for during the person's lifetime from the person's… Read More
This decision upholds Palm Springs' ordinance allowing short term rentals of dwellings in areas designated for residential use under its zoning ordinance. The decision first points out that even if the short term rental ordinance conflicted with the zoning ordinance, it would not be invalidated as a result. Both ordinances were enacted by the same city council and have the… Read More
The trial court erred in granting defendant summary judgment in this suit by a spectator injured by a foul ball during a college baseball game. Despite primary assumption of the risk, the venue has a duty to take reasonable steps to increase safety and minimize the risk of injury to spectators at its baseball games, if it could do so… Read More
The district court abused its discretion in denying Volkswagen's motion to intervene in a FOIA action seeking production of documents concerning Volkswagen's dieselgate fraud. Volkswagen satisfied Fed. R. Civ. P. 24(a)'s three requirements for intervention as of right. It had a significant protectible interest in asserting that the sought documents were exempt from FOIA disclosure under Exemption 4. A ruling… Read More
Rice recovered judgment against Downs. While Downs' appeal from the judgment was pending, Rice moved for a charging order against Downs' interest in Triton, an LLC of which he was the managing member. That motion was denied due to the automatic stay on appeal. Glaser, Downs' lawyer, then obtained a security interest in Downs' interest in Triton, which it perfected… Read More
The trial court did not abuse its discretion in denying class certification in this wage and hour case. Insofar as plaintiff claimed that the employer's rounding of hours worked was illegal, the trial court properly found that noncommon issues predominated because it had no single rounding policy but left matters up to managers at its different locations. Plaintiff's theory that… Read More
Defendant bought the property adjacent to plaintiff's property and improved the purchased property with a drip-irrigated walnut orchard. A strip of land on defendant's side of the fence between the two properties was actually plaintiff's property. After defendant completed the orchard improvements, plaintiff sued for trespass on that strip of land and sought an injunction requiring defendant to restore the… Read More
There are four styles of assenting to agreements on Internet sites: (1) browsewrap, where mere use of the site is taken as consent to the site's terms and conditions, (2) signwrap, where the user's entry into a transaction on the site is taken as consent to its terms and conditions, (3) clickwrap, where the user must click a statement that… Read More
Fraud in factum, in execution or in the inception differs from promissory fraud, which is a false promise. Fraud in execution occurs when the defendant causes the plaintiff to execute a contract that has materially different terms from those on which the parties orally agreed. To allege a claim for fraud in execution, the plaintiff must allege facts showing the… Read More
Civil Code 1799.1 requires a creditor to provide any co-signer of a consumer credit contract with a specified warning about the risks of guaranteeing someone else's debt. And Civil Code 1799.5 provides that the creditor may not enforce the contract and any accompanying security interest against the co-signer if the statutory warning isn't given. This decision holds that these provisions… Read More
A notary is liable in negligence in failing to exercise due care in determining the identity of the person signing a notarized document. (Gov. Code, 8214.) However, there is a statutory safe harbor from liability if the notary relies on a DMV driver's license issued within the last 5 years and there is no information, evidence, or other circumstances that… Read More
