When the parties agree to a general reference under CCP 638, unless their agreement provides otherwise, the trial court must enter judgment in accordance with the referee's decision once it is filed with the court. However, following entry of judgment, the court may review the referee's legal conclusions on a party's motion for new trial or to vacate the judgment. … Read More
The district court correctly abstained on Younger v. Harris grounds and dismissed this suit which sought to enjoin the Hawaii Attorney General from proceeding with a state court suit under Hawaii's UDAP statute for deceptively marketing Plavix by concealing the fact that Asians and Pacific Islanders have a genetic modification that impairs the drug's function. The state court suit was… Read More
State Farm's 998 offer was valid and enforceable to shift costs in this case. The signature block contained a space for signature by the attorney for the HOA, which was sufficient to identify the party in the signature line for acceptance. Also, the 998 offer's requirement of signature on a settlement agreement releasing all claims " arising from, relating or… Read More
Under Labor Code 92(f), a forum selection clause in an employment contract is invalid and unenforceable if the contract was "“entered into, modified, or extended on or after January 1, 2017." This decision holds that any modification of the employment contract after January 1, 2017 triggers the application of section 925, even if the modification did not affect the forum… Read More
Wastewater collection workers employed by the city to clean its sewers were not transportation workers governed by IWC Wage Order No. 7 even though their work required them to drive commercial vehicles to clean and pump out sewers and transport refuse to collection locations. So sanitation workers are not entitled to the meal and rest breaks mandated by Wage Order… Read More
Three principles govern the award of monetary sanctions for discovery abuse. First, the court must award monetary sanctions against the loser of a discovery motion unless it finds that either the loser acted with substantial justification or imposition of sanctions would be unjust under the circumstances. Second, the monetary sanctions may only be imposed based on attorney fees and costs… Read More
Under Cal. Rules of Court 3.1700, 3.1702, the time to file a memorandum of costs and a motion for attorney fees runs from service of notice of entry of judgment. That the prevailing party had actual knowledge of entry of judgment earlier is irrelevant. It is service of notice of entry, not actual knowledge that starts the time running. Likewise,… Read More
Defendant entered into a 10-year lease with an automatic 10-year renewal before the prior owner of the building sold it to MES. Even though defendant's lease was not recorded, MES took subject to the lease since it had actual knowledge of the lease before it bought the building. (Civ. Code 1217.) Since the lease was a conveyance expressly made effective… Read More
The litigation privilege (Civ. Code 47(b)) protects contractors that record mechanics liens from slander of title actions. That is true even if the mechanics lien ultimately is shown to have been improperly recorded--as plaintiff here claimed it was because it was the fourth lien recorded after plaintiff had already posted a release bond. Also, plaintiff failed to prove that defendant… Read More
The trial court abused its discretion in refusing to consider defendant's reply declarations on its Anti-SLAPP motion. The reply declarations addressed an issue that had been raised in the original moving papers--good faith in recording tje mechanics liens in issue, but addressed a particular unanticipated argument that the plaintiff raised in opposition to the motion--that litigation could not have been… Read More
Recording a mechanics lien is protected activity under CCP 425.16(e) (the Anti-SLAPP statute) even if the lien was improperly filed. The lawfulness of the lien is taken into consideration only during the second step of Anti-SLAPP analysis--that is in considering whether the plaintiff has shown probability of success on the merits. So the fact that this litigation arose from defendant's… Read More
The trial court did not abuse its discretion in declining to apportion plaintiff's attorney fees between the Song-Beverly Act claim (on which fees were awardable by statute) and the fraudulent concealment claim (a non-fee-bearing claim) since the two claims were based on a common set of facts. In selecting a 2.0 multiplier on fees, the trial court did not improperly… Read More
This decision reverses a judgment for fraudulent concealment of an alleged defect in a car because there was no substantial evidence that before the plaintiff bought the car (thus allegedly relying on the concealment) the defendant knew of the alleged defect and that it was unable or unwilling to fix it. However, the decision also affirms the judgment for plaintiff… Read More
When an employer’s no-fault absenteeism policy provides that an employee may clear absences that otherwise would count for purposes of disciplinary action by working (or being available to work) during a certain clearance period, the employer does not violate the California Family Rights Act (Gov. Code 12945.2) by extending the absence clearance period by the number of days the employee… Read More
Once the attorney-client privilege has been established, the trial judge or counsel for any party may not comment on the fact that a party or witness has exercised the privilege. (Evid. Code 913(a).) Moreover, the trier of fact may not draw any inference from a witness’s invocation of a privilege. The court must so instruct the jury upon request. (Ibid.)… Read More
Applying Semtek Internat. Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, this decision holds that a federal district court's dismissal of a 42 USC 1983 claim on the ground it was precluded by the res judicata effect of a state administrative decision denying her claim is not a final judgment entitled to claim preclusive effect under federal common law. … Read More
Federal common law governs the effect of a federal court's judgment on federal law claims (Taylor v. Sturgell (2008) 553 U.S. 880, 891) whereas state law governs the res judicata effect of a federal court's judgment on state law claims when exercising diversity jurisdiction (Semtek Internat. Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, 507). It is unclear which… Read More
A preliminary injunction properly issued to require Uber and Lyft to stop misclassifying their drivers as independent contractors. Under the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 and AB5 (Lab. Code 2775), one who provides labor or services for pay is presumed to be an employee unless the hiring entity proves all… Read More
When a government entity sues and seeks a preliminary injunction to halt violation of a statute, it need only show a reasonable probability of success on the merits, and then a rebuttable presumption arises that public harm from the violation outweighs harm to the defendant from the injunction. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63.) To overcome… Read More
Defendant, a vision insurance provider, terminated plaintiff, an optometrist, for using unapproved lens suppliers for defendant's patients. Defendant's network doctor agreement provided for a two-step review process of disputes, including those over termination under these circumstances. The first step was review by a three-member panel, the second step was arbitration. This decision holds that this two-step process does not violate… Read More
