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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

A subpoena served on a third party witness to produce business records is a deposition subpoena.  If the subpoenaed witness objects rather than producing the requested documents (in whole or in part), the subpoenaing party has 60 days to move to compel compliance with the subpoena.  Meet and confer efforts in the meanwhile do not continue the 60 day deadline… Read More

CCP 2019.210 provides that in a trade secret  misappropriation case under Civ. Code 3426, before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity.  This decision holds that the plaintiff cannot wait to raise a new alleged trade secret in opposition to a summary judgment motion directed towards its… Read More

Under CCP 2023.010 and 2023.030, providing evasive or false discovery responses is a discovery abuse for which the court must grant the opposing party monetary sanctions unless it finds there was substantial justification for the discovery abuse or awarding sanctions would be unjust.  Here, the trial court found substantial abuse of discovery in providing false responses, but erroneously failed to… 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

This decision outlines the seven factors a trial court should consider in deciding a third party's motion to quash a subpoena served on it by a criminal defendant.  Most important of those factors, particularly when the subpoena seeks social media posts, are the defendant's proof of a plausible justification for needing the subpoenaed documents and the consideration of privacy and… Read More

Distinguishing Andrews v. Foster Wheeler (2006) 138 Cal.App.4th 96 and following Gaggero v. Yura (2003) 108 Cal.App.4th 884 instead, this decision holds that no logical inference that the plaintiff possesses no facts to support his claim can be drawn from the plaintiff's improper use of the procedure under CCP 2030.230 (pointing to documents from which an answer can be drawn)… Read More

Law firm’s investigative due diligence report, completed prior to an acquisition to determine whether target company was in possession of another’s protected trade secrets, is not protected from discovery by any attorney-client privilege because it was jointly directed by and shared with opposing parties in the acquisition negotiations; and it was not protected by the work product privilege because it… Read More

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