California Appellate Tracker

Following Charnay v. Cobert (2006) 145 Cal.App.4th 170 and E-Pass Technologies, Inc. v. Moses & Singer, LLP (2010) 189 Cal.App.4th 1140, this decision reverses a summary judgment for the defendant attorneys in this malpractice action based on the allegation that the attorneys failed to warn plaintiff of the disadvantages of bringing the underlying suit in California where the defendant could… Read More

Cal. Const., art. I, sec. 28(b)(5) grants crime victims the right to “refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.”  This decision holds that this provision which was… Read More

This decision reverses a summary judgment for defendant on plaintiffs Americans with Disabilities Act claim.  The summary judgment was granted on the ground that the defendant had fewer than 15 employees, the minimum threshold for application of the ADA.  However, the decision holds that there was a triable issue of fact whether the defendant, a Nevada law limited partnership, was… Read More

Mendoza was president of a local union.  The international ATU imposed a trusteeship on that local union ousting Mendoza and the local union's executive board members having discovered suspected financial malfeasance.  Mendoza filed an action against the ATU on his own behalf.  The ATU removed it to federal court, claiming NRLA preemption.  While the first suit was pending Mendoza filed… Read More

Defendant's website didn't adequately disclose the nature of the terms of service, and didn't point out either the arbitration clause or the hyperlink to the agreement.  As a form of sign-in wrap, the website failed adequately to show agreement to the defendant's terms when the customer simply hit the "continue" button. Read More

The district attorneys of several counties served Alorica with an investigative subpoena to produce records regarding it debt collection practices and in particular with respect to its collections for a national bank.  Held, the subpoena was properly enforced.  That Alorica claims not to be a debt collector within the meaning of the Rosenthal Fair Debt Collection Practices Act is no… Read More

The Airline Deregulation Act of 1978 (49 USC 41713) preempted plaintiff's tort claims arising from defendant's decision not to use plaintiff's software that offered certain in flight deals to airline passengers.  Refusing to follow the Ninth Circuit's minority view (Charas v. Trans World Airlines, Inc. (9th Cir. 1998) 160 F.3d 1259), this decision holds that in flight deals are part… Read More

While the scope of a student's right to a fair hearing before discipline is uncertain and evolving, one thing is clear:  the school must follow its own published procedures in determining whether to discipline a student.  Here, the defendant school's procedure said that students would have the right to cross-examine witnesses.  The school misinterpreted this as granting cross-examination only if… Read More

Following Delaney v. Baker (1999) 20 Cal.4th 23, this decision holds that MICRA's one-year limitations on medical malpractice claims and $250,000 limit on non-economic damages did not apply to this elderly woman who was sexually assaulted by the defendant elder care facility's male attendant, based on a jury's finding that the defendant was not only guilty not only of general… Read More

Plaintiff sued defendant for stalking her and firing crossbow bolts and bullets at her office.  The trial court did not err in admitting into evidence an audio recording of a telephone call plaintiff made to defendant at the request of the police.  The recording was adequately authenticated.  Plaintiff testified she recognizes the voices on the tape as hers and defendant's. … Read More

In Vaden v. Discover Bank (2009) 129 S.Ct. 1262, the Court held that under 9 USC 4, to determine whether a federal court has jurisdiction over a petition to compel arbitration, the court should "look through" the arbitration issue and determine whether the court would have jurisdiction of the underlying dispute in the absence of an arbitration agreement.  This decision… Read More

Plaintiff was injured in an auto accident caused by defendant's employee who was returning home after an 8 hour shift as a security guard.  The decision holds that the going and coming rule applies and the employer therefore is not liable for the employee's tort.  There was nothing special about employment as a security guard that created an unusual risk… Read More

The trial court did not abuse its discretion in ordering a new trial in this case where the writers for the series Columbo sued the studio that produced those shows.  The trial court correctly concluded--only after the jury ruled--that it was for the court to interpret the contract between the parties and that the crucial term "photoplay" included each TV… Read More

Defendant waived her right to compel arbitration by waiting for 2 years into the litigation before moving to compel arbitration.  Though prejudice to the opposing party is an important factor to consider in deciding whether arbitration has been waived, waiver can be found even without a showing of prejudice.  Anyway, long delay in bringing a motion to compel arbitration may… Read More

The trial court did not abuse its discretion in finding that neither party prevailed or was entitled to an attorney fee award under the Davis-Stirling Act (Civ. Code 5975(e)) or the private attorney general statute (CCP 1021.5) in this suit by a condo owner against the condo association.  Although plaintiff obtained a preliminary injunction and prevailed in forcing the condo… Read More

A written waiver or release of future negligence claims or assumption of the risk in order to participate in recreational activities is enforceable.  Here, a high school required its football team players to sign such a release.  It barred plaintiff's claim for negligence in failing to diagnose the concussion he suffered playing football which led to serious brain damage.  Plaintiff… Read More

The trial court did not abuse its discretion in not denying defendant's summary judgment motion for alleged defects in its separate statement of undisputed facts.  Though a trial court may deny a summary judgment motion on that ground, it is not compelled to do so.  Here, the alleged defect was stating several facts together in a single "undisputed fact" and… Read More

Following but distinguishing Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 543, this decision holds that Blizzard employed a form of sign-in wrap to show consent to its agreement for use of its website and games.  In the context of a continuing relationship to play Blizzard's games, its sign-in wrap adequately informed users that they had to agree to its terms… Read More

Appeals from probate orders did not automatically stay the parties' ability to settle their dispute.  Even though their settlement required dismissal of the pending appeals, the settlement was effective and did not violate the automatic stay on appeal under CCP 916. Read More

If a party to an arbitration agreement claims it cannot afford to pay the arbitration fees, the trial court require that party to prove his inability to pay, and may hold an evidentiary hearing to consider the evidence on that question.  If the trial court finds that the party actually cannot pay the arbitration fees, it must let the other… Read More