Disagreeing in part with King v. Lynch (2012) 204 Cal.App.4th 1186, this decision holds that unless a revocable trust explicitly states that it can be modified only by the method stated in the trust, the trust may be modified by the same method allowed by statute for revocation of the trust; namely by a signed writing delivered to the trustee. … Read More
When a lawyer's advice is sought for both business purposes (such as tax compliance) and legal advice (advice on tax law), whether the communications are attorney-client privileged or not is tested by the "primary purpose" test--was the primary purpose of the communication legal or business advice? (The court expressly declines to decide whether legal advice being "a" rather than "the"… Read More
A 170.6 challenge can be effective though filed after the challenged judge issues a search warrant in a criminal case. The warrant is issued on an ex parte basis and so the judge decides no contested issue of fact in issuing the warrant. Here, the 170.6 challenge was timely because filed more than 5 days before the hearing on the… Read More
Plaintiff voluntarily dismissed its misappropriation of trade secrets claim, but continued to prosecute six other causes of action against defendant. Defendant moved unsuccessfully for an attorney fee award under Civ. Code 3426.4 which allows fee awards for trade secrets claims brought in bad faith. Defendant's appeal from the order denying its fee motion was dismissed. The order was not a… Read More
Disagreeing with Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289 and Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, this decision holds that Equilon is a joint employer, at least for wage and hour regulation purposes, of the employees of the franchisees that run its gas stations. For wage and hour purposes, joint employment is governed by the… Read More
Following Reid v. Google, Inc. (2010) 50 Cal.4th 512, this decision holds that the trial court erred in excluding "stray remarks" evidence in this employment discrimination case on the basis of age. The stray remark, by an assistant dean, was that she wanted someone younger (than the applicant, not plaintiff) for a position different than any plaintiff held or applied… Read More
This decision holds that the district court erred in denying Comcast's motion to compel arbitration even though its arbitration clause precluded customers from litigating public injunction claims in any forum. First, the decision holds that the mere presence of the clause in the arbitration agreement does not automatically invalidate the arbitration agreement for all purposes--but rather only in cases that… Read More
The de minimis copying test in a copyright infringement action relates only to the degree of copying, not to the extent of the infringement by minimum use of a copyrighted work. So, here, defendant could not raise a de minimis defence since it had completely copied plaintiff's copyrighted photograph of the Indianapolis skyline. Its copying was total, not de minimis. … Read More
A court has inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable. As a matter of due process, defendants are entitled to a fair opportunity to litigate available affirmative defenses, and a court’s manageability assessment should account for them. Here, the PAGA claim was based… Read More
Generally, a person hiring an independent contractor to perform work is not liable for injuries suffered by the contractor's employees in performing that work under the Privette doctrine. There are two exceptions to this rule. The Kinsman exception which holds a hirer liable if it is a landowner and fails to disclose some tatent dangerous condition of the property to… Read More
The department's annual cap on the amount of 1, 3-D pesticide that could be applied within a township was an illegal underground regulation that was not adopted, as it should have been, in compliance with the Administrative Procedure Act. Even though only one company (Dow Chemical) produced 1,3-D pesticides, the township cap program applied generally to all users of the… Read More
Under the Supreme Court's modern contracts, the court must first decide whether a challenged enactment substantially impairs contracts, considering the extent to which the law undermines the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his rights. If contracts are substantially impaired, the court next considers whether the law is drawn in… Read More
Applying Martinez v. Combs (2010) 49 Cal.4th 35 regarding the definition of employer under IWC orders, this decision affirms a summary judgment finding that a bail bond surety company is not the employer of bail bondsmen's fugitive recovery personnel. The surety company did not hire, fire or exercise control over those personnel. The surety company's contracts with the bail bondsmen… Read More
To establish a claim under the ADA or Rehabilitation Act, a plaintiff must show: (1) he is a qualified individual with a disability; (2) he was denied a reasonable accommodation that he needs in order to enjoy meaningful access to the benefits of public services; and (3) the program providing the benefit receives federal financial assistance. In addition, the plaintiff… Read More
A fiduciary owes a duty to disclose material facts to the beneficiary. The beneficiary is under no duty to investigate whether the fiduciary has told the truth or disclosed all the material facts. Hence, when a conservatee moves to set aside an order approving the conservator's accounting on the ground of misrepresentations in the conservator's accounting and petition for approval,… Read More
An order settling the account of a fiduciary is appealable. (Prob. Code 1300(b).) Ordinarily, an order denying a motion to vacate an order settling the fiduciary's account is not appealable so as to avoid giving a party two appeals from the same order. However, here, the conservator's misrepresentations in the accounting prevented the conservatee from fully litigating the accounting and… Read More
Plaintiff runs two bakery stores in Los Angeles. It baked a birthday cake for defendant's child. Defendant, who is a celebrity, objected to some of the icing on the cake, saying it looked like pills. He published scathing reviews of plaintiff's bakeries on the Internet, leading to plaintiff's losing customers and business profits. Plaintiff sued for defamation. This decision holds… Read More
Under the Department of Justice's Accessible Stadium's guidance document section 4.33.3, a stadium must all spectators in wheelchairs to see (a) between the heads and over the shoulders of standing spectators in the row immediately in front of the wheelchair spectators, and (b) over the heads of standing spectators in the second row from the wheelchair spectators. The district court… Read More
In Law v. Siegel (2014) 571 U.S. 415, the US Supreme Court held that a bankruptcy court may not use its equitable powers under 11 USC 105 to contravene express provisions of the Bankruptcy Code. Applying that reasoning, this decision departs from prior Ninth Circuit precedent, In re Rosson (9th Cir. 2008) 545 F.3d 764, and holds that a bankruptcy… Read More
This decision affirms a $2.7 million judgment in favor of two tenants against new landlords that harassed the tenants and then wrongfully evicted them in a fake owner move-in all in violation of San Francisco's rent control ordinance. The ordinance provides for treble damages for violations like these, but the trial court properly exercised its discretion to reduce the trebled… Read More
