The trial court properly granted summary judgment against the plaintiff insureds who sought coverage under their named peril property insurance policy for loss of their frozen embryos due to a failure of the refrigeration unit of the embryo storage company. The insureds could not prove that the embryos had suffered physical damage. The storage company refused to say, and the… Read More
Although recognizing that a minority of decisions apply a substantial evidence standard of review on appeal from an order granting or enforcement to a forum selection clause, this decision adopts what it says is the majority rule applying, instead, an abuse of discretion standard of review. In this case, the contract included not only a clause selecting Illinois as the… Read More
A corporation that is incorporated elsewhere but has registered to do business in a state that requires as a condition of that registration that the corporation appoint an in-state agent for service of process is subject to general personal jurisdiction in that state's courts on all causes of action. Such forced consent to general personal jurisdiction does not offend the… Read More
This decision holds that a party seeking to vacate an arbitration award must file a petition to vacate or a response (seeking vacatur) to a petition to confirm an arbitration award within 100 days of service of the arbitration award. (CCP 1288, 1288.2.) A response seeking to vacate is untimely if filed beyond that 100 day limit even if filed… Read More
Idaho lacked personal jurisdiction over defendant, a British company. There was no general jurisdiction. Examining both the effects and the purpose availment tests, the court found the effects test couldn't be met because the plaintiffs, Indiana and Louisiana residents, suffered no injury in Idaho, the forum state. Defendant's long-term contract with the defendant, which was an Idaho company, was insufficient… Read More
Resolving a split among the circuits, this decision holds (5-4) that an interlocutory appeal from an order denying a motion to compel arbitration automatically stays proceedings in the district court on the merits of the dispute until the appeal is resolved. Read More
Defendant disability insurer wrote plaintiff insured in 2015 that it had determined his disability arose from illness rather than accident and so would stop paying benefits in 2018 when he turned 65 as the policy allowed for illness-caused disability. Plaintiff sued for breach of contract and breach of implied covenant in 2019, more than four years after the 2015 letter,… Read More
The trial court properly granted defendant property owner summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689. Plaintiff was injured while working as a contractor's employee, fixing the building's HVAC system. Plaintiff failed to raise a triable issue of fact under the Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 exception to Privette. Plaintiff fell through the ceiling… Read More
The district court abused its discretion in approving a $1.7 million fee award in a class action copyright infringement case in which class members received only $50,000 in a claims made settlement and no injunctive or other non-monetary relief. While $1.7 million might be an actual assessment of fees by the hours times rate lodestar method, the resulting amount must… Read More
An electrician working on a lengthy project at a farm caught a disease caused by a fungus that spreads from bird feces particularly if the feces are mixed with soil over an extended period. Following Sarti v. Salt Creek, Ltd. (2008) 167 Cal.App.4th 1187 and distinguishing Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, this decision holds that… Read More
This suit was filed in the name of a trust, not its trustee. After lengthy litigation with the original defendants, an intervenor moved to expunge the lis pendens on the ground that the trust was not a legal entity and could not sue in its own name. The trial court agreed, held it had no subject matter jurisdiction, and dismissed… Read More
Gov. Code 818 immunizes governmental agencies from liability for damages imposed primarily for the sake of example and by way of punishing the defendant. This decision holds that section 818 bars a claim for treble damages under CCP 340.1(b) for a childhood sexual assault resulting from the defendant's concerted effort to hide evidence relating to such assaults. Section 340.1 imposes… Read More
After his house was destroyed in a fire, Tipton filed a claim under his homeowner's policy with Nationwide. In a criminally stupid move, Tipton's claim sought payment for destruction of Van Gogh's original Starry Night painting which he said was in the house when the fire broke out. Tipton was later charged and pled guilty to insurance fraud and perjury,… Read More
A post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment. By contrast, a post-trial motion is required if the summary judgment motion was denied on sufficiency of the evidence grounds since the evidentiary record may be (and usually is) different at trial. Read More
Plaintiff appealed adverse judgment claiming the trial court erred in refusing a jury instruction regarding an adverse inference from the opposing party's concealing evidence during discovery. This decision holds that the plaintiff forfeited the issue on appeal by misstating the record in her brief--asserting that the trial court had found that the defendant improperly concealed documents, when the trial court… Read More
28 USC 1367(d) provides that when a case is brought within the federal courts' original jurisdiction and state law claims are also asserted, invoking the federal court's supplemental jurisdiction, any applicable statute of limitations is tolled for a period of 30 days following dismissal of the state law claims if the federal court declines to exercise jurisdiction over them. This… Read More
Although not required by CCP 2032.320, a trial court may, in its discretion, require a party that desires to take a mental exam of the opposing party to provide the examined party with an audio tape of the examination as well as the raw test data and questions, subject to a suitable protective order to protect the security of the… Read More
Applying the federal transaction test to a plea of claim preclusion on a CERCLA claim for contribution by a potentially responsible party, this decision holds that the later suit is not precluded because it is not on the same cause of action. The prior action was by the then-current owner of Property 1 for contribution to the cost of remediating… Read More
Calling contrary language in SI 59 LLC v. Variel Warner Ventures LLC (2018) 29 Cal.App.5th 146 dicta, this decision holds that despite Civ. Code 1668, a release may be enforceable while the claim still has not accrued for statute of limitations purposes, at least so long as the plaintiff is aware of the claim she releases and the wrongful acts… Read More
The trial court improperly entered summary judgment for defendant on class claims that it violated H&S Code 1374.72, which requires parity of treatment for mental illness as for physical illness, and Civ. Code 51 by treating persons with mental disabilities less well than those with physical disabilities. Plaintiffs' evidence raised triable issues of fact as to whether Kaiser's reimbursement and… Read More
