The district court did not abuse its discretion in awarding terminating sanctions under FRCivP 37(e) against plaintiff for intentionally deleting (and getting her friends to delete) text messages about the case from their cellphones. There was substantial evidence that plaintiff acted intentionally to destroy the text messages and deprive defendant of their contents. And lesser sanctions would not remedy that… Read More
This decision holds that a judge's denial of a motion for acquittal under Pen. Code 1118.1 in a criminal prosecution of the later plaintiff suing for malicious prosecution is sufficient to invoke the interim adverse decision rule, barring the required finding of lack of probable cause, without which the malicious prosecution action cannot succeed. The opinion also Cel-Tech's tethering test… Read More
On remand from the Supreme Court, the Court of Appeal holds that substantial evidence supports USC's determination that plaintiff engaged in intimate partner violence warranting expulsion from the university. The decision also holds that it is not a due process violation for a private association, such as a university, to follow the inquisitorial model (with a single person or body… Read More
Following Lippman v. City of Oakland (2018) 19 Cal.App.5th 750, this decision holds that Building Code section 1.8.8 requires a city to provide for appeals from administrative determinations (here of a nuisance on plaintiff's property) before an independent agency or board authorized to hear such appeals or the city’s governing body. Hearing before a single employee of the building department… Read More
Through defendant talent agency, plaintiff hired several performers for a rock concert to be held in April 2020. Under the contract, plaintiff made a $6 million deposit that was non-refundable. However, the contract had a force majeure clause which defined force majeure broadly enough to include cancellation of the concert due to COVID restrictions. However, the clause further provided that… Read More
Following California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, this decision holds that courts should intervene only sparingly in disputes about how private associations govern themselves. Judicial intervention is appropriate only if an association has unreasonably construed a plain and unambiguous provision of its constitution or bylaws and the balance of the interests of the aggrieved party… Read More
The Song-Beverly Warranty Act requires new car manufacturers to provide restitution of the purchase price to the buyer of a defective car. (Civ. Code 1793.2(d)(2)(B).) This decision holds that if the buyer trades in or sells the defective car. the trade in credit or resale price is not deducted from the restitution that the manufacturer must pay, at least when… Read More
Unlike the FEHA, the Song-Beverly Act's one-sided attorney fee and cost clause does not expressly exempt Song-Beverly fee and cost awards from CCP 998's fee and cost shifting framework when the plaintiff does not accept the 998 offer and later recovers less than that offer. Hence, CCP 998 applies to Song-Beverly Act claims. Section 998 aoplies even when the lawsuit… Read More
An attorney for plaintiff was found to have reviewed two of defendant's arguably attorney-client privileged documents without stopping and notifying the defendant when he realized the documents might be privileged. However, the trial court abused its discretion in disqualifying the plaintiff's law firm as a result. The trial court failed to say how the two documents could be used to… Read More
An arbitration administrator or arbitrator cannot extend the statutory 30 day period within which a drafting party must pay arbitration fees or forfeit its right to arbitration. (CCP 1281.98.) The drafting party must pay within 30 days from the date that the fees initially become due. A later invoice or other attempt to extend the deadline is ineffective. See also… Read More
Bradley moved under CCP 473(d) to void the dismissal of its cross-complaint on the ground that the dismissal was entered under a settlement that Bradley's attorney had entered into without Bradley's consent. Recognizing a split of appellate authority over whether a judgment on a settlement entered into without client consent is void or merely voidable and suggesting that voidable is… Read More
The trial court did not abuse its discretion in holding that plaintiff could not have validly entered into a contract with an arbitration clause when the contract was 21 pages, the review period was 38 seconds and through a cell phone, and plaintiff was 81 years old with virtually no technological ability. Furthermore, plaintiff's income was limited; she was careful… Read More
When an adult child is an insured under the parents' auto insurance policy, the insurer must give the adult child as well as the parents (who are the policyholders) notice of cancellation or nonrenewal. Absent advance notice properly given, the insurance continues in effect despite the insurer's attempt to cancel it. Read More
When a party has waived the right to a jury trial by one of the acts or omissions listed in CCP 631, it may still seek relief from that waiver under CCP 631(g). A trial court exercises discretion in ruling on such a motion and need not grant the motion merely because granting the motion will not cause hardship to… Read More
An action to rescind a contract for fraud is an action on the contract for purposes of Civil Code 1717. Section 1717 is not limited to actions for breach of contract or seeking to enforce the contract. A party is entitled to attorney fees under section 1717 even when the party prevails on grounds the contract is inapplicable, invalid, unenforceable… Read More
Choice of law clauses in maritime contracts are presumptively enforceable as a matter of federal admiralty law just as forum selection clauses in those contracts are generally enforceable. Choice of law clauses in maritime contracts are unenforceable only when they contravene a federal statute or conflict with established federal maritime policy or when the parties cannot furnish a reasonable basis… Read More
Plaintiff tried to refinance her Wells Fargo home loan with another lender but that effort was thwarted by a fraudulent third party's lien on the property. Plaintiff contends that Wells Fargo should have helped her remove the fraudulent lien, but instead it started foreclosure proceedings on her loan. She filed a Chapter 13 bankruptcy to avoid the foreclosure and listed… Read More
Proposition 244, the California Privacy Rights Act of 2020, clearly mandated that the new privacy agency had to promulgate regulations in 15 areas by July 1, 2022. It also provided that the agency could begin enforcing the Act on July 1, 2023. The agency didn't promulgate final regulations until 9 months after the deadline. This decision holds that the trial… Read More
This decision affirms a JNOV in a case where plaintiff was injured by two dogs kept by a subtenant in a building owned by the defendant landlord. The decision finds that the trial court was correct in holding that there was no substantial evidence that the landlord actually knew of the dogs' dangerous propensities. The landlord's receipt of an email… Read More
Unless Congress clearly states otherwise, it is presumed not to have waived sovereign immunity. This clear statement rule requires either an express statement that Congress is stripping away sovereign immunity or a statute that creates a cause of action and explicitly authorizes suit against a government entity on that cause of action. The FCRA waives sovereign immunity by the latter… Read More
