California Appellate Tracker

Rule of Professional Conduct 1.18 extends some protections to prospective clients who contact attorneys but ultimately don't retain them.  The protections, however, are less than those accorded clients whom a lawyer actually represents.  The prospective client can disqualify an attorney who ends up representing an adverse party only upon proof that the prospective client disclosed confidential information to the attorney… Read More

Contracts, Shipping Contracts, Shipper Pays Freight On Maritime Contract, 2, Absent an express or implied contract to the contrary, the default rule in admiralty is that the shipper or consignor pays the carrier's freight charges.  A contract to change that rule must be consented to by the party the contract names as the freight-payer.  In this case, there was no… Read More

Following Ford Motor Credit Co. v. Hunsberger (2008) 163 Cal.App.4th 1526, this decision holds that when a contract contains an attorney fee clause, and the plaintiff rejects a 998 offer but then voluntarily dismisses the action, the defendant may not recover attorney fees from the plaintiff.  CCP 998 does not overcome Civ. Code 1717(b)(2)'s command that there is no prevailing… Read More

The Communications Decency Act (47 USC 230) did not immunize YOLO from claims that it breached its advertised promise that it would unmask or ban users who violated the terms of service and so prevent bullying and abusive users from using its private messaging app.  However, that statute did immunize YOLO from product liability claims which attempted to hold YOLO… Read More

Under Rule 60(b)(2), a court may revise a judgment because of “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).”  This decision holds that there is no exception to the reasonable diligence requirement for cases in which the new evidence is "conclusive."  If the new evidence… Read More

A new trial on limited issues is allowed under the Seventh Amendment only when the issues to be retried are separate and distinct from those resolved by the first jury.  When the plaintiff sues for intentional infliction of emotional distress, damages are intertwined with liability because recovery is allowed only when the tortious conduct caused severe emotional distress.  Here, however,… Read More

Plaintiff who did not recover more in damages than a rejected pre-trial 998 offer in an employment discrimination case was not entitled to attorney fees for work done after the §998 offer was rejected.  Section 998 expressly requires the court to exclude post-offer costs in determining whether the plaintiff has obtained a more favorable judgment than the offer.  So the… Read More

In an employment discrimination case, the trial court did not abuse  its discretion in awarding some attorney fees to the prevailing plaintiff for a second trial of the second trial of the case which was mistried due to the plaintiff's attorney's misconduct during closing argument.  The claims on which plaintiff prevailed at the third trial were not unrelated to those… Read More

When a manufacturer is unable to repair a defective new car, it must either give the consumer a replacement equivalent car or make "restitution."  (Civ. Code 1793.22.)  The required restitution can result in the consumer being better off than before buying the car.  However, in this case, the court holds that the required restitution does not include the portions of… Read More

The district court properly applied the Colorado River abstention doctrine to dismiss this case which plaintiff filed to obtain declaratory and injunctive relief against a California city and Coastal Commission suit in state court to enforce local zoning and other requirements on plaintiff.  In deciding on Colorado River abstention, the court employs an eight-factor balancing test.  Only the consideration that… Read More

This decision reverses class certification of claims that the LAPD used excessive force against protestors, arrested them without probable cause, and restricted their First Amendment rights in responding to protests following George Floyd's death.  The district court order did not address commonality and predominance elements with respect to the three damage classes it certified.  As to the injunctive relief class,… Read More

(California lacked personal jurisdiction over the Arab owners of Al Arabiya news service which plaintiff, a Lebanon-resident lawyer, with a house in California, sued for defamation in a news item linking plaintiff to Hezbollah's leader who allegedly stole and laundered money to fund his potential escape from Lebanon.  Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770 did not apply… Read More

(Plaintiff had standing to pursue insider trading claims since it bought shares the same day as the defendants sold their shares--even though the sales were in a different market than plaintiff's purchases.  Nevertheless, plaintiff's insider trading claims were properly dismissed because it did not plead with particularity when or how the defendants acquired insider knowledge and also did not plead… Read More

Arbitration, Waiver, By Participation in Litigation, No Prejudice Need Be Shown, 1, 7 Following Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708, the California Supreme Court reverses its own prior precedent that required prejudice in addition to intentional relinquishment or abandonment of a known right in order to find waiver of the right to compel arbitration.  The prior California cases… Read More

Privacy, Medical Information, Persons Regulated by Confidentiality of Medical Information Act, Civ. Code 56, 1, 7 The Confidentiality of Medical Information Act (Civ. Code 56) broadly defines the persons subject to its requirements as including not only providers of medical services any business organized to maintain medical information for use by medical service providers or patients.  This case holds that… Read More

Consumer Protection, CLRA, Limitations, Discovery Rule, 1, 7 The CLRA's three-year statute of limitations is subject to the discovery rule, postponing accrual until the plaintiff "discovers" his claim.   Read More

(A defendant cannot show prejudice from any error in denial of its demurrer or motion for summary judgment if it has gone to trial and lost on the issue (such as here, discovery of the claim starting the limitations period) which was the basis of its demurrer or summary judgment motion.) Read More

(In a hostile work environment sex discrimination, the court must consider the totality of the circumstances including evidence of sexually harassing conduct, even if it does not expressly target the plaintiff, as well as evidence of non-sexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating.  And conduct, particularly of a supervisor, must be considered even… Read More

(A successor in interest does not have standing to bring an ADA claim for injunctive relief in federal court. (City of Los Angeles v. Lyons (1983) 461 U.S. 95, 101.)  However, the opposite rule applies in California state court since CCP 377.20, 377.30 provide that a cause of action is not lost by reason of the plaintiff's death but instead… Read More

(Ordinarily, if a bankrupt claims an exemption in an amount that exceeds the statutory limit, but no party in interest objects within 30 days thereafter, the bankrupt is entitled to the exemption in the improper amount claimed.  However, in this case, that rule was not followed because it started out as a Chapter 11 proceeding in which the debtor owed… Read More