California Appellate Tracker

Under Fed. R. App. 39(a), the Court of Appeals determines which party is the prevailing party entitled to an award of costs on appeal, and it may, in its discretion, order that the prevailing party recover only some of the normally awardable costs on appeal.  Under Fed. R. App. 39(e), costs for preparing and transmitting the record and appellate transcripts… Read More

BMW sent plaintiff a 998 offer, proposing to settle this personal injury case for $15,000 in exchange for a general release.  The 998 offer did not mention entry of judgment against BMW or specify that plaintiff would file a dismissal with prejudice instead.  Plaintiff accepted the offer.  Then the parties disagreed about terms of the release and entry of judgment. … Read More

This decision holds that a suit filed by the decedent's heirs under CCP 377.32 was timely since it was filed within the limitations period even though the heirs didn't file the required declarations until after the limitations period expired and even though after probate proceedings were begun on the decedents' estates, the complaint was amended to name as an added… Read More

It is an abuse of discretion in a civil rights or public interest case (such as this Song-Beverly Act case) to deny attorney fees altogether for time spent after the plaintiff rejects a 998 offer, so long as the plaintiff ultimately recovers more than the 998 offered.  Though the trial court retains broad discretion to evaluate post-offer attorney fees and… Read More

Plaintiff hired E to sell its cyptocurrency assets for cash.  E did so using defendant's website.  The proceeds of sale were stolen from the website allegedly because defendant failed to implement elemental security measures.  This decision holds that the trial court did not err in denying defendant's motion to compel arbitration based on its terms of service to which E… Read More

The trial court did not err in enforcing decedent's contract with defendant under which defendant was to liquidate decedent's Iranian properties and transfer the proceeds to decedent.  Although the contract violated the federal sanctions imposed on Iran, the trial court did not abuse its discretion in awarding the plaintiff heirs relief since (a) the sales of the Iranian properties were… Read More

A defendant may challenge an order denying his forum non conveniens motion on an appeal from a final judgment even though CCP 418.10 allows a petition for writ of mandate from the order, just as it permits such a petition from denial of a motion to quash the summons for lack of personal jurisdiction.  But unlike the personal jurisdiction objection… Read More

Molfetta was White's criminal defense lawyer.  After White was convicted, he requested Molfetta's files so he could prepare habeas corpus petitions.  Molfetta failed to turn over the files.  While some of the files were confidential and could not be turned over, most were not and should have been timely provided once White requested them.  While condemning Molfetta's actions, this decision… Read More

The party moving to compel arbitration bears the burden of proving that the parties entered into an arbitration agreement.  Here, plaintiff employee denied that she had electronically signed the arbitration agreement during the employment onboarding procedure that defendant implemented on taking over the acute care facility at which plaintiff worked.  One way to authenticate an electronic signature is to show… Read More

On behalf of a putative class of prescription drug buyers, plaintiff alleged that Rite Aid reported inflated "usual and customary" drug prices to the pharmacy benefits managers which transmitted the inflated figures to plaintiffs' health insurers, causing the plaintiffs to pay higher than proper deductibles for the drugs.  This decision affirms an order denying Rite Aid's motion to compel arbitration. … Read More

Following Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782 as a correct statement of California law on a non-signatory's use of equitable estoppel to compel arbitration against a signatory plaintiff, this decision affirms an order compelling arbitration of the plaintiff's wage and hour claims against defendant hospital.  Plaintiff was directly hired by a staffing agency that paid her wages and… Read More

As in Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743, the CC&Rs for a condominium tower required a majority vote of member owners in favor before the association could bring suit against the developer (which of course wrote the CC&Rs).  This decision holds that Civ. Code 5386, which renders such provisions null and void and which expressly… Read More

Under California's Securities Act (Corp. Code, 25400 and 25500, as under federal securities laws, the plaintiff must allege and prove loss causation--that is, that the alleged misstatement caused the rise or decline in stock price over which the plaintiff sues.  When the suit is brought in federal court, the loss causation element, like the rest of the fraud-based claim, must… Read More

Under 11580.2(f), insured and insurer must arbitrate any dispute about whether the insured is entitled to recover damages from an uninsured motorist and the amount of those damages.  While the insured is not required to arbitrate a bad faith claim arising from the same accident, the fact that the insured has alleged such a claim is not grounds for avoiding… Read More

Under CCP 526a, as amended in 2018, to have standing to bring a taxpayer suit, the plaintiff must show that it or one of its members (a) resided within the jurisdiction of the governmental entity at suit and (b) within a year before the challenged governmental action paid a tax that funds that entity which is a property tax, an… Read More

Following EEOC v. Waffle House Inc. (2002) 122 S.Ct. 754, this decision holds that the Secretary of Labor cannot be compelled to arbitrate his enforcement action under the Fair :Labor Standards Act even if the employees had agreed to arbitrate their claims against their employer.  The FLSA expressly allows the Secretary to sue to obtain monetary relief for aggrieved employees… Read More

Over a strong dissent, this decision holds that defendant agreed to an extension of the 3-year period in which to bring a case to trial after a reversal on appeal by orally agreeing in court to have the trial set on a specific date more than three years after the case was remanded to the trial court.  (See CCP 583.330.) Read More

A new trial motion based on excessive damages must be made on the "minutes of the court."  Unlike a new trial motion for juror misconduct, the excessive damage new trial motion may not be based on, and the trial court may not consider, evidence not admitted before the jury during the trial--such as in this case, the defendant's chart of… Read More

The defendant bears the burden of proof on the issue of comparative fault, both who else wrongfully caused plaintiff harm and how much.  In an asbestosis case, this means that the defendant bears “the burden to establish concurrent or alternate causes by proving: that [the plaintiff] was exposed to defective asbestos containing products of other companies; that the defective designs… Read More

Under 28 USC 1447(d) an order remanding a case to state court is reviewable on appeal if the case was removed pursuant to 28 USC 1442 (federal officer) or 1443 (civil rights).  This decision holds that on such an appeal, the appellate court may review all grounds on which the remand order was based.  Review isn't limited to determining whether… Read More