Civil Procedure

In this suit, a general contractor and its subs sued the LA school district for delay damages caused by construction stalled while cracks in the concrete foundation were repaired.  The contractors claimed that the cracks were caused by a design flaw--certain additional features should have been included in the foundation plan to avoid cracks.  The district claimed that the cracks… Read More

Issued by the same court on the same day as Fuentes v. Empire Nissan, Inc. (2023) 2023 DAR ___, this decision also holds that the standard arbitration provision in a Nissan dealership's employment agreement is not unconscionable because it is not substantively unconscionable.  Contrary to the plaintiff's argument, the arbitration agreement did not prevent the employee from seeking administrative relief… Read More

Disagreeing with Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, this decision holding that the arbitration provision in Nissan dealerships' standard employment agreement is not unconscionable.  Though having a high degree of procedural unconscionability due to small print size and lengthy, obscure language, the clause is not substantively unconscionable.  Small print size and obtuse phrasing relate to procedural… Read More

The trial court did not abuse its discretion in excluding plaintiff's expert witness' opinion regarding the accused diabetes drug's causing an increased risk of heart failure in diabetics.  The expert relied on only one test, the authors of which noted that its results as to heart failure were anomalous and required comparison with other tests.  The expert also did not… Read More

To intervene as of right in an action under CCP 387(d)(1)(B), the intervenor must show that its interest is not “adequately represented by one or more of the existing parties.”  Ordinarily, that is not a high hurdle, but a compelling showing is required to demonstrate inadequate representation if the intervenor's interest is the same as one or more of the… Read More

Continuing its campaign to rein in the use of "jurisdiction" to describe limitations on court powers, the Supreme Court holds in this case that 11 U.S.C. 363(m) does not deprive the federal courts of jurisdiction but merely sets out a rule merely cloaking certain good-faith purchasers or lessees with a targeted protection of their newly acquired property interest, applicable even… Read More

The Federal Food, Drug, and Cosmetic Act preempted plaintiff's claim that defendant's label on "I Can't Believe It's Not Butter! Spray" misleadingly listed 0 calories and 0 grams of fat by using artificially small serving sizes.  The FDA sets serving sizes for labeling purposes by type of food product.  The Butter! Spray was a "spray" not "butter."  And the label… Read More

Husband's divorce attorney violated the federal Wiretapping Statute (18 USC 2511) when he filed transcripts of conversations between wife and her child which husband had surreptitiously taped on a recorder hidden in the child's backpack.  Husband couldn't vicariously consent on the child's behalf to recording the conversations since the child was not in husband's custody at the time of the… Read More

Under CCP 36(a), a person who is over 70 and who proves that he or she has a substantial interest in the case, and that his or her health is such that preference is needed to avoid prejudicing his or her interest in the litigation, is entitled to have trial of the case set within 120 days after the motion… Read More

Following Merck & Co., Inc. v. Reynolds (2010) 130 S.Ct. 1784, this decision holds that the statute of limitations does not begin to run on a securities claim under 28 USC 1658 until the plaintiff can plead each of its elements with sufficient detail and particularity to survive a motion to dismiss for failure to state a claim.  Defendants’ allegedly… Read More

A taxpayer has standing to sue under CCP 526a to challenge a government program on the ground it is unconstitutional either on its face or as applied, at least if the as-applied challenge is broadly based, not confined to an aberrant application to one individual or a small group.  The taxpayer may bring the suit without having to identify any… Read More

The probate exception to federal court jurisdiction applies only  to cases in which the federal courts would be called on to “(1) probate or annul a will, (2) administer a decedent’s estate, or (3) assume in rem jurisdiction over property that is in the custody of the probate court.”  Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1252… Read More

In a case involving mixed legal and equitable claims, it is usual to try the equitable claims first to the court.  The court's findings on those equitable claims are binding on the jury when it decides the legal claims even if the court's findings are not necessary to its judgment on the equitable claims. Read More

Plaintiff suffers from PTSD.  He sought to have his wife present at his deposition as an accommodation because she calms him alleviating some PTSD symptoms.  Defendants opposed arguing that the wife was a percipient witness to the medical procedures that were the subject matter of the suit and allowing her to sit in on her husband's deposition would allow her… Read More

The no voluntary payment clause in plaintiffs' insurance policies barred its recovery for costs it incurred in complying with a settlement agreement and consent order with the government to remediate mercury contamination of water supplies.  Plaintiff had notified defendant of its receiving a notice of the federal government's claim for natural resources damages from the contamination, but then failed to… Read More

This case denies American Pipe tolling of the statute of limitations on claims for statutory penalties under the Investigative Consumer Reporting Agencies Act (Civ. Code 1786.50).  The act clearly states that statutory penalties cannot be recovered in a class action, so that affected consumers could not reasonably rely on the pendency of a prior class action to protect their right… Read More

Most time deadline statutes and rules are now construed as non-jurisdictional unless Congress has clearly stated otherwise.  The 12-year statute of limitations on quiet title actions against the United States (28 U.S.C. §2409a(g)) is a claims processing rule, not a jurisdictional statute.  The time limit appears in a section separate from the Quiet Title Act's jurisdictional provision and does not… Read More

Appeal of an order interpreting a nonprofit corporation's by-laws governing annual election of its directors was not moot though several elections occurred after the suit was filed because the judgment had a continuing effect on the corporation's elections and was subject to repetition but evading review. Read More

A 2018 amendment to CCP 340.1 further relaxed the statute of limitations on childhood sexual assault claims, but it removed the words "on the merits" from the portion of the statute that used to state that it did not apply to any claim that had been litigated to finality on the merits before 2003.  The deletion of that language was… Read More

Under CCP 904.1(a)(12), a monetary sanctions award of $5,000 or more is immediately appealable.  However, an order for an issue sanction on a discovery motion is not immediately appealable.  Even when the order awards both monetary and issue sanctions, the issue sanctions portion of the order is not appealable unless the two sanctions are intimately intertwined. (See Mileikowsky v. Tenet… Read More