California Appellate Tracker

Following Roes, 1-2  v. SFBSC Management, LLC (9th Cir. 2019) 944 F.3d 1035, this decision holds that when a class action settles before class certification, the district court may not apply a presumption of fairness to the settlement based on arms-length negotiation between experienced counsel.  Instead, the court mus employ extra caution and more rigorous scrutiny in evaluating a pre-certification… Read More

This decision holds that losses due to COVID closures are not covered by the business income and extra expense coverage of a business insurance policy since to trigger coverage the loss must be due to an impairment of operations caused by direct physical loss or damage to property.  For there to be coverage under this policy language, some external force… Read More

Under CCP 425.13, a plaintiff may not bring a claim for punitive damages in a medical malpractice case without first moving for and obtaining a court order allowing her to amend to allege that claim.  The statute also provides that the motion to amend must be brought before the earlier of 2 years from filing of the action or 9… Read More

Under Public Contracts Code 20104.50, a government entity that pays a contractor more than 30 days after receipt of an undisputed payment request must pay the contractor 10% interest on the delayed payment.  However, this decision holds that payment more than 30 days after receipt is not a breach of the construction contract if that contract only incorporates the Public… Read More

A store owner that holds its premises open to the public owes invitees a duty of care to keep the premises reasonably safe.  A business that owns or leases only part of a larger business premises owes invitees a duty of care with regard to the entire premises, not just the part the business owns, leases or operates in.  So,… Read More

Plaintiff did not allege an actionable equal protection claim based on a "class of one" discrimination.  To state such a claim, the plaintiff must allege facts showing it was treated differently from others who were similarly situated in all material respects.  Because they operate a materially different business model, at a significantly different price point, using new and different technology,… Read More

Plaintiff's complaint alleged a viable Sherman Act section 1 antitrust conspiracy among dentist members of the Dental Board of California to harass and intimidate plaintiff which sought to engage in a disruptive new direct to consumer model of marketing clear dental aligners to members of the public.  The members of the dental board were not immune from antitrust liability merely… Read More

Under the Madrid Protocol implemented in 15 USC 1141 et seq, and under 15 USC 1057, the holder of a trademark registered in a foreign country can obtain registration of the trademark in the United States as well, and obtain the benefit of a constructive use date pegged to the date of the foreign registration or application for US registration. … Read More

If a foreign sovereign entity is subject to suit under one of the exceptions to immunity otherwise conferred by the Foreign Sovereign Immunities Act, the Act does not affect the substantive law governing the entity's liability.  Instead, 28 USC 1606 provides that when not entitled to immunity, "the foreign state shall be liable in the same manner and to the… Read More

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