California Appellate Tracker

A well-established departure from the hearsay rule applies when the very fact in controversy is whether certain things were said, and not whether these things were true or false.  Hence, in a breach of contract case, the contract is not hearsay.  The contract must be authenticated, but here the plaintiff did so by showing that it had received an assignment… Read More

A landlord cannot avoid a lessee's right of first refusal as provided in the lease by selling a larger parcel of which the leased premises is a smaller part.  In that situation, the third party buyer's offered price must be equitably apportioned to the leased premises in the proportion its square footage or appraised value bears to the square footage… Read More

A party may seek expungement of a lis pendens on any of four grounds:   (1) the lis pendens is void and invalid for lack of service on all defendants and owners of the property (CCP § 405.23), (2) the action as pleaded does not contain a real property claim (CCP § 405.31), (3) the claimant fails to establish the probable… Read More

Following Usher v. White (2021) 64 Cal.App.5th 883, this decision holds that, under Lab. Code 558.1, an owner, officer, director, or managing agent of the employer may be held liable for the employer's violation of an IWC wage order or of certain wage and hour sections of the Labor Code if the individual defendant had some oversight of the employer's… Read More

The Federal Motor Carrier Safety Administration's regulations under the Federal Motor Carrier Safety Act preempt California state laws governing meal and rest breaks for truckers, both long-haul and short-haul, in accordance with the Administration's interpretation of its own regulations to which deference is owed. Read More

Under Evid. Code 1158, a medical care provider must make patients' medical records available for their attorneys' inspection.  The section also limits how much the medical care provider may charge for making copies of the records for the patient or his attorney.  In Thornburg v. Superior Court (2006) 138 Cal.App.4th 43, the court held that the fee limits also apply… Read More

Following David S. Karton, A Law Corp. v. Dougherty (2014) 231 Cal.App.4th 600, this decision holds that when a defendant pays a default judgment entered against him before successfully moving to vacate the default judgment (and hence before filing an answer), Civ. Code 1717(b)(2) applies, making the defendant the prevailing party for purposes of a fee award if the plaintiff… Read More

Ordinarily, an order on a motion for an attorney fee award is appealable as a post-judgment order under CCP 904.1(a)(2).  But here, to maintain the trial court's jurisdiction to enforce a settlement agreement, the parties agreed that judgment would not be entered dismissing the action until after defendant had paid the settlement amount and any attorney fees awarded by the… Read More

An order in a tort suit denying a defendant's claim of derivative federal sovereign immunity is not appealable under the collateral order doctrine because any error can be corrected on appeal from a final judgment.  Derivative sovereign immunity and government contractor immunity provide immunity from liability not immunity from suit. Read More

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