Skip to Content (Press Enter)

Skip to Nav (Press Enter)

Civil Procedure

Subscribe to California Appellate Tracker

Thank you for your desire to subscribe to Severson & Werson’s Appellate Tracker Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

Summary judgment on plaintiff's discrimination in employment claims was properly granted because he failed to exhaust his administrative remedies with the FEHA and EEOC.  His administrative complaint mentioned entirely different grounds (sex and whistleblower retaliation by his supervisor) than his court complaint (sexual harassment, race, immigration status and retaliation  by coworkers).  Employees satisfy the administrative exhaustion requirement if their court… Read More

Defendant fired plaintiff wrongfully in 2018 thereby disentitling plaintiff to stock options he would otherwise have held in 2020 when defendant went public with an IPO, guaranteeing a profit on exercise of the stock options.  This decision holds that plaintiff's breach of contract damages need not be measured as of the date of breach (2018) but may properly be measured… Read More

The forum defendant rule under 28 USC 1441(b)(2) is a procedural, not a substantive bar to removal jurisdiction and so must be raised by a remand motion brought within 30 days of the filing of the removal notice or it is waived.  Here, the remand motion was filed on the 31st day after the removal petition.  Nevertheless, it was timely… Read More

Plaintiff, a guest in defendant's hotel, fell and hurt herself when the handheld shower head came apart in her hand.  This decision affirms a summary judgment for defendant because (a) plaintiff failed to raise a triable issue of fact as to whether defendant had actually knew or had reason to suspect that the shower head was defective or dangerous and… Read More

A two-page settlement term sheet signed by the clients at the end of a mediation session was a binding agreement even though it contemplated that the parties would thereafter enter into a formal settlement agreement and a separate stipulation for entry of judgment.  The term sheet's invoking CCP 664.6 was a sign it was intended to be a binding contract. … Read More

This decision holds that Baral v. Schnitt (2016) 1 Cal.5th 376 has fatally undermined the holding and reasoning of South Sutter LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634.  Baral holds that mixed causes of action must be examined under the Anti-SLAPP statute based on the allegations regarding protected activity rather than under the Pomeroy "cause of action"… Read More

Appellant's opening brief stricken and appeal dismissed where the brief cited two nonexistent cases (and counsel could not explain why at oral argument), misstated the facts and holdings of several other decisions, and cited only a few other authorities without explaining how they supported the appellant's contentions. Read More

An order denying a petition to change the petitioner's legal name is reviewed for abuse of discretion.  However, there is only a very narrow range of discretion allowed.  A name change must be granted unless the new name may cause confusion or is to a "fighting" word.  Here, petitioner sought to change her name to Candi Bimbo Doll, a name… Read More

A consent decree that defendant entered into with the Attorney General which prohibited defendant from charging any fee it couldn't show was to reimburse a reasonable cost defendant incurred did not moot the prayer in this UCL class action for a public injunction banning defendant from charging its  $45 processing fee for each new rent-to-own contract.  The consent decree did… Read More

This decision holds that the Court of Appeals the de novo standard of review to an order denying a nonsignatory's motion to compel arbitration by invoking equitable estoppel.  It also holds that 14 C.F.R. § 253.10 which forbids air carriers from including forum selection clauses in their contracts of carriage does not forbid an airline from relying on an arbitration… Read More

After securing a $600K judgment against Johnson, plaintiff sued him again to set aside a fraudulent transfer by which Johnson attempted to avoid execution of the judgment.  After two years of litigation on the fraudulent transfer suit, plaintiff filed a memorandum of post-judgment costs seeking to collect attorney fees and costs it expended in the second suit.  To thwart that… Read More

There are only two elements to a misappropriation of trade secrets claim:  the existence of a trade secret, and its unauthorized dissemination, disclosure or use.  It is not necessary for the plaintiff to prove it was damaged or the defendant was unjustly enriched.  Those issues are relevant only to an award of damages or restitution.  Even absent damages or enrichment,… Read More

The district court did not abuse its discretion in awarding terminating sanctions under FRCivP 37(e) against plaintiff for intentionally deleting (and getting her friends to delete) text messages about the case from their cellphones. There was substantial evidence that plaintiff acted intentionally to destroy the text messages and deprive defendant of their contents.  And lesser sanctions would not remedy that… Read More

An attorney for plaintiff was found to have reviewed two of defendant's arguably attorney-client privileged documents without stopping and notifying the defendant when he realized the documents might be privileged.  However, the trial court abused its discretion in disqualifying the plaintiff's law firm as a result.  The trial court failed to say how the two documents could be used to… Read More

Bradley moved under CCP 473(d) to void the dismissal of its cross-complaint on the ground that the dismissal was entered under a settlement that Bradley's attorney had entered into without Bradley's consent.  Recognizing a split of appellate authority over whether a judgment on a settlement entered into without client consent is void or merely voidable and suggesting that voidable is… Read More

The trial court did not abuse its discretion in holding that plaintiff could not have validly entered into a contract with an arbitration clause when the contract was 21 pages, the review period was 38 seconds and through a cell phone, and plaintiff was 81 years old with virtually no technological ability. Furthermore, plaintiff's income was limited; she was careful… Read More

When a party has waived the right to a jury trial by one of the acts or omissions listed in CCP 631, it may still seek relief from that waiver under CCP 631(g).  A trial court exercises discretion in ruling on such a motion and need not grant the motion merely because granting the motion will not cause hardship to… Read More

Choice of law clauses in maritime contracts are presumptively enforceable as a matter of federal admiralty law just as forum selection clauses in those contracts are generally enforceable.  Choice of law clauses in maritime contracts are unenforceable only when they contravene a federal statute or conflict with established federal maritime policy or when the parties cannot furnish a reasonable basis… Read More

Plaintiff tried to refinance her Wells Fargo home loan with another lender but that effort was thwarted by a fraudulent third party's lien on the property.  Plaintiff contends that Wells Fargo should have helped her remove the fraudulent lien, but instead it started foreclosure proceedings on her loan.  She filed a Chapter 13 bankruptcy to avoid the foreclosure and listed… Read More

1 2 3 58