CAFA's provision (28 USC 1712) limiting attorney fees in coupon settlements applies to any class action in federal court, whether filed there originally or removed there from state court, and regardless of whether the class action claims are based on federal or state law. Parties cannot avoid section 1712 by providing that the settlement agreement is to be construed and… Read More
Disagreeing with Plancich v. United Parcel Service, Inc. (2011) 198 Cal.App.4th 308, this decision holds that Labor Code 218.5 and 1194 prescribe one-way fee and cost awards in employee suits for minimum wage and overtime pay, precluding the application of CCP 1032 and CCP 998, which only changes the normal prevailing party determination under CCP 1032. An employer may recover… Read More
In this suit for unpaid wages, plaintiff successfully opposed defendant's motion to transfer the case to the court's limited jurisdiction division, but then failed to recover damages exceeding the limited jurisdiction's maximum. CCP 1033 provides that when this occurs,, the court may deny the plaintiff costs, including attorney fees. Without deciding whether the fee-shifting provisions of various Labor Code sections… Read More
Under Lab. Code 515(a) and Wage Order No. 44 (Cal. Code Regs., tit. 8, § 11040), an employer need not pay overtime pay to an employee who (1) is primarily engaged in exempt duties and (2) earns “a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment." This decision holds that "salary"… Read More
When a married couple uses community funds to acquire property with joint tenancy title, the property is presumptively held as community property if acquired after January 1, 1975. (See Fam. Code 760.) The spouses hold joint tenancy interests in property acquired before 1975 as separate property. For joint tenancy property acquired between January 1, 1975, and December 31, 1984, the… Read More
The FDCPA's bona fide error defense does not allow debt collectors to avoid liability by contractually obligating creditor-clients to provide accurate information, nor by requesting that creditor-clients provide notice of any errors in an account assigned for collection without waiting to receive a response to the request before instituting collection efforts. Read More
Under Nev. Rev. Stat. 116.3116, a homeowner's association is allowed a superpriority lien for certain HOA dues and maintenance expenses. This decision holds that the statute does not offend the US Constitution's Takings Clause since no governmental entity takes the value of liens subordinated to the HOA's superpriority lien. It also holds that the statutory notice of foreclosure sent by… Read More
In Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, the Supreme Court held that in the employment context, Bus. & Prof. Code 16600 is to be strictly enforced, prohibiting enforcement of any noncompetition clause except in circumstances that are exempted by B & P Code 16601, 16602 or 16602.5. However, this case holds that outside the employment context, and… Read More
Plaintiffs alleged that defendant had agreed to cremate plaintiff's two dogs individually, but sent them random ashes rather than those of their dogs. Plaintiffs sought to recover for the emotional distress they suffered as a result. Held: Plaintiffs didn't state a breach of contract claim as their vet, not they, had contracted with defendant, but on remand plaintiffs should be… Read More
The complaint in this case adequately alleged loss causation based on a stock price drop after the New York Post ran an article about BofI revealing, based on information it obtained through FOIA requests, that the SEC was investigated BofI for money laundering. The article was close enough to a contradiction of BofI's denial of knowledge of any investigation. The… Read More
In a poorly lawyered case, this decision affirms an order denying a motion to compel arbitration, holding that the trial court properly held the arbitration clause was unconscionable. It was procedurally unconscionable because it was a form contract presented to the patient only moments before the laser hair removal operation in a large stack of other paper she didn't have… Read More
In reaction to San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, the Legisalture amended CCP 128.5 to require in subdivision (f) that the court first find a motion, complaint or other filing to be frvolous under subdivision (a) and then not award sanctions until after a 21-day safe harbor as under CCP 128.7. This… Read More
This decision affirms a $22,000 sanction imposed on plaintiff's counsel under CCP 128.7 for bringing a frivolous motion to lift the stay pending arbitration. The AAA had misapplied the defendant's arbitration fee and then closed the arbitration. When notified of its error, the AAA acknowledged that it had received the fee payment and said it would reopen the arbitration if… Read More
The trial court did not abuse its discretion under CCP 389 in concluding that residents of a mobile home park were necessary parties to the park owner's mandamus proceeding against the Santa Cruz County's rent control board. Before that board, the residents had opposed the park owner's application for a rent increase, even presenting expert testimony regarding the owner's claimed… Read More
Landowners could not invoke Civil Code 836 recreational use immunity to bar a personal injury action by a minor female who was injured riding her motorcycle on the landowners' motocross track because the landowners' 18-year old son who lived with them had invited the plaintiff onto the property to use the motocross track. When a child of the landowner is… 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 sells the defective car or trades it in on another car from a third party car dealer, the amount that the manufacturer must pay the buyer is reduced… Read More
This decision holds that CCP 351, which tolls the statute of limitations while the defendant is absent from the state, is unconstiturional as violative of the dorman Commerce Clause insofar as it tolls the statute of limitations on claims against a defendant who was a California resident when the claim accrued, but later moved permanently out of state. Here, plaintiff… Read More
This decision reverses the trial court's denial of defendant's motion to set aside a default judgment and the underlying default under CCP 473.5 and for extrinsic mistake or fraud. Plaintiff lent to defendant's CEO, who without authority pledged defendant's assets as collateral for the loan, which he invested in a Ghanaian scam. Plaintiff filed suit against the CEO and defendant,… Read More
Lawyer's appeal from a contempt citation is dismissed as contempt orders are not appealable; they may only be challenged by a writ petition. Lawyer's appeal from a sanctions order over $5,000 is appealable, but the sanctions order is affirmed. A lawyer owes a court a duty of candor. Here, the lawyer filed a motion to enforce a settlement. He received… Read More
The federal Wiretap Act provides a civil cause of action to any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of 18 U.S.C. §§ 2510–2523. (18 U.S.C. § 2520(a).) Under § 2520(e), the action must be brought no later than two years after the date upon which the claimant first has a reasonable… Read More
