Under CCP 1987.2, a party that moves to quash a subpoena for that party's personal identifying information may recover attorney fees upon demonstrating (i) he prevailed on the motion to quash, (ii) the underlying action arises from the party's exercise of free speech rights on the Internet, and (iii) the plaintiff in that proceeding did not make a prima facie… Read More
The district court abused its discretion in excluding testimony from defendant's sole trial witness and in imposing monetary sanctions for defendants' purported failure to properly identify the areas of testimony of the witness--who had been identified in the defendant's initial disclosures. Even if the initial disclosures showed only that the witness would testify about the underlying lawsuit for which the… Read More
Under 28 U. S. C. §1782, a district courts may order testimony or the production of evidence “for use in a proceeding in a foreign or international tribunal.” The statute reaches only governmental or intergovernmental adjudicative bodies, not private arbitral panels. Read More
In response to a contention interrogatory about whether plaintiff, the borrower, contended that notice of foreclosure had not been properly served, plaintiff answered "unsure." This decision holds that plaintiff is bound by that deliberately ambiguous answer and cannot, in opposition to a summary judgment motion, suddenly claim that she now is certain she never received notice of the foreclosure sale. … Read More
Employer's arbitration clause was unenforceable because it was unconscionable. The clause was a mandatory, non-negotiable requirement of employment. It was procedurally unconscionable because it was given to plaintiff only in English, which he cannot read, and without a schedule of the arbitration fees he could be charged. It was substantively unconscionable because it allowed the arbitrator to shift attorney fees… Read More
Cal. Const., art. I, sec. 28(b)(5) grants crime victims the right to “refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.” This decision holds that this provision which was… Read More
In most arbitrations, the arbitrator decides any issues regarding discovery. Not so in uninsured/underinsured motorist arbitrations under Ins. Code 11580.2(f). The court decides discovery issues in those types of arbitration proceedings. This decision holds that the trial court's discovery rulings cannot be challenged on an appeal from an order confirming the arbitration award because error in discovery rulings by a… Read More
The trial court did not abuse its discretion in denying plaintiff's motion to compel Yelp to produce the source code for its software that filters unreliable reviews from its website. The battling experts disagreed as to the usefulness of the source code in proving whether Yelp's reviews were "trustworthy" as advertised. Yelp demonstrated that production of the source code would… Read More
California's Electronic Discovery Act (CCP 1985.8) requires a trial court to protect a third party witness from undue burden and expense in producing electronically stored information in response to a third-party subpoena. Here, the trial court properly applied the statute and did not abuse its discretion in ordering plaintiff to pay $130,000 which represented half the cost of the Department… Read More
The trial court did not abuse its discretion in awarding costs against plaintiff under CCP 2033.420 for having denied defendant's requests of admission regarding the breach of oral promise claim alleged in the complaint. The evidence at trial showed that plaintiff could not have maintained a good faith belief, at the time he denied those requests, that he would prevail… Read More
Under the federal recalcitrant witness statute, 28 U.S.C. § 1826(a), when a witness refuses to testify or provide other information, including documentary evidence, the court “may summarily order his confinement . . . until such time as the witness is willing to give such testimony or provide such information.” This decision holds that section 1826 applies to post-judgment as well… Read More
Though noting a split of authority on the issue, this decision follows Lossing v. Superior Court (1989) 207 Cal.App.3d 635 in holding that a civil contempt proceeding brought to enforce discovery orders (in this case, post-judgment discovery orders) cannot form the basis of a later malicious prosecution action. Read More
Noting the split of authorities on this issue, this decision follows Cooksey v. Alexakis (2004) 123 Cal.App.4th 246 in holding that a party who seeks a continuance under section 437c(h), must show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner, and accordingly requires the court to grant the… Read More
Under CCP 2025.295, the deposition of a plaintiff can take no longer than 7 hours if (a) the action is for injury or illness from mesothelioma, and (b) a doctor certifies that the plaintiff suffers from mesothelioma raising a substantial medical doubt that plaintiff will survive beyond six months. If more than 20 defendants appear at the deposition, the court… Read More
Like Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, this writ proceeding arises from Johnson & Johnson's discovery in the county's opioid UCL, FAL and public nuisance action. J&J subpoenaed several non-party counties to produce records of opioid prescriptions and drug treatment records with intact personal identification information to J&J's third party vendor for it to de-identify… Read More
In a proceeding under 9 USC 7 to enforce a subpoena that an arbitrator has issued to a non-party witness, when no federal claim is at stake, a federal court has jurisdiction over the matter only if the requirements for diversity jurisdiction (including the amount in controversy requirement) are satisfied. The amount in controversy exceeds $75,000, if the value of… Read More
An order compelling a non-party deponent attorney to disclose the identity of an expert non-witness consultant he hired in a prior case was not an appealable collateral order because it related to the subject matter of the plaintiff's suit against that expert for disclosing confidential material without permission. But the court treated the appeal as a writ petition since the… Read More
The trial court did not abuse its discretion in awarding attorney fees against plaintiff under CCP 2033.420(a) for denying requests for admission denying factual allegations at the heart of the plaintiff's claims. Plaintiff did not bear his burden of proving that he had reasonable grounds for his denial of those requests for admission. The trial court's denial of defendant's non-suit… Read More
The trial court prejudicially erred in granting plaintiff's in limine motion to exclude defendant from introducing evidence and seeking allocation of fault to two defendants (the State of California and an adjoining landowner) which had settled out of the case before trial. Under Prop. 51, a defndant is entitled to have the jury allocate fault (and thus the share of… Read More
Allegedly defamatory emails that Simplified sent Trinity and a co-defendant seeking documents and other information for its later-filed lawsuit were protected activity for purposes of the Anti-SLAPP statute (CCP 425.16(e)). The emails were also protected by the absolute litigation privilege, so Trinity could not prove a probability of success on the merits. The trial court properly granted Simplified's Anti-SLAPP motion… Read More
