California Appellate Tracker

Ordinarily, when a complaint alleges a stand-alone claim for declaratory relief and properly alleges the existence of an existing controversy, the trial court should not grant a demurrer because the plaintiff is entitled to a declaration of rights even if unfavorable.  However, the error is not prejudicial if the declaration would be in the defendant's favor.  The appellate opinion affirming… Read More

In a direct listing, the issuing company files a registration statement with the SEC which then allows it to sell its registered shares directly to the public and allows its existing shareholders to do so as well.  Since direct listing does not involve bank financing of the issuance, there is no "lock up" period during which unregistered shares cannot be… Read More

While the ABC test of employee v. independent contractor status applies retroactively, Prop. 22's classification of some gig workers as independent contractors applies only prospectively.  So GrubHub drivers, if employees under the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, are entitled to back wages for the period before Prop. 22's adoption.  The… Read More

Following O'Connor v. Uber Technologies, Inc. (9th Cir. 2018) 904 F.3d 1087, this decision affirms the district court's denial of class certification in a wage and hour case.  Plaintiff and one other worker did not, but all the other putative class members did, sign an arbitration agreement with defendant containing a class action waiver.  As a result, plaintiff was not… Read More

Following Rent-A-Center West Inc. v. Jackson (2010) 130 S.Ct. 2772 and Brennan v. Opus Bank (9th Cir. 2015) 796 F.3d 1125, this decision holds that when an arbitration agreement delegates issues of arbitrability to the arbitrator, a court's first task is to determine whether the delegation clause itself (rather than the entire arbitration agreement) is enforceable.  If the delegation clause… Read More

CCP 1161.3 provides that a landlord may not terminate a tenancy for (among other things) domestic violence committed against the tenant or a member of the tenant's household so long as the domestic violence is documented by, among other alternatives, a police report.  Over a dissent, this opinion holds that the statute provides a defense to an unlawful detainer action… Read More

Before and during his decade-long divorce proceedings, Piterman made monthly payments on two promissory notes to his friend Korchemny, who then with Piterman's encouragement and aid sued Piterman, his former wife and her trust to collect on the notes.  This opinion affirms a judgment against Korchemny on the complaint.  The first promissory note charged interest in excess of 10% and… Read More

Plaintiff adequately exhausted her administrative remedies under the FEHA by filing a complaint with the DFEH that nearly correctly named her employer's dba Hooman Chevrolet (instead of Hooman Chevrolet of Culver City) but got the corporate name of the employer wrong Hooman Enterprises, Inc. (instead of NBA Automotive, Inc.).  The administrative complaint also correctly named the plaintiff's supervisor and other… Read More

AB 51 (Stats. 2019 ch. 711) enacted Lab. Code 432.6 which prohibits employers from requiring employees to agree to arbitration as a condition of employment, and states that it is a condition of employment if the employer requires the employee to opt out or take any affirmative step to avoid agreeing to arbitration.  Over a strong dissent, the majority opinion… Read More

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