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Summary Judgment

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Reversing a summary judgment for defendant in this breach of contract suit, the Court of Appeal found the parties' brief signed napkin agreement to be enforceable despite some ambiguities and terms left for later determination.  It was not too indefinite to enforce or too indefinite to indicate agreement on essential terms.  Parol evidence was properly admitted to construe the ambiguous… Read More

This decision affirms a summary judgment for defendant in a suit by the heirs of a driver killed in a head-on collision triggered by the presence of a deer on the highway.  Defendant was entitled to design immunity under Gov. Code 830.6.  The design of the highway was causally linked to the accident.  Caltrans approved the planned design of the… Read More

A defendant may raise unpleaded affirmative defenses in opposition to the plaintiff's summary judgment motion so long as the plaintiff is given adequate notice and an opportunity to respond.  See Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367; Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 11.  The court may consider unpleaded affirmative defenses, if the complaint alleges facts supporting… Read More

This decision reverses a summary judgment in favor of the defendant employer against the plaintiff employee nurse who sued individually and under PAGA for violation of Labor Code sections on rest and meal breaks and payment of all wages due on termination.  The employer failed to meet its burden of proving plaintiff's claims were time barred.  While she may not… Read More

This en banc opinion reverses a summary judgment the district court had granted the University of Arizona in a Title IX sex harassment claim based on a sexual assault by a male student on a football scholarship against a woman student in off-campus housing.  To obtain damages under Title IX for student-on-student harassment, a plaintiff must show (1) that the… Read More

A party may appeal from denial of its summary judgment motion by stipulating to entry of judgment after and based on the denial of the summary judgment motion and making clear that it is doing so only for the purpose of appealing the denial of summary judgment--because there was no full record developed at trial that could be said to… Read More

While a district court may convert a motion to dismiss into a summary judgment motion in the parties submit evidence in support of the motion, FRCP 12(d), the district court cannot sua sponte convert a summary judgment motion into a motion to dismiss.  Here, defendant didn't move to dismiss for lack of lack of Article III standing but raised the… Read More

Although acknowledging the issue still remains open, it decides the review the trial court's rulings on evidentiary objections on a summary judgment motion under the abuse of discretion standard which it claims is the majority position both before and after Reid v. Google, Inc. (2010) 50 Cal.4th 512 (which highlighted but did not decide the issue). Read More

On plaintiff's first appeal, the Court of Appeal reversed a summary judgment for defendant.  On remand, the case was tried to a judge who ruled in defendant's favor and plaintiff again appealed.  Plaintiff claimed that HSBC violated Penal Code 632 and 632.7 by intentionally recording her confidential personal calls to and from her daughter who, at the time, was working… Read More

Plaintiff sued Disney for common law misappropriation of his story idea in making its animated file Zootopia.  This decision affirms a summary judgment for Disney.  Plaintiff had no direct evidence of copying.  It did not produce evidence sufficient to allow a reasonable inference of copying either.  The allegedly copied elements of plaintiff's story idea were not so unique as to… Read More

Disagreeing with Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, this decision holds that the California Supreme Court has not abandoned its requirement that for an order to be appealable under the collateral order doctrine, the order must direct payment of money or performance of an act.  That requirement remains a restriction on collateral order appeals… Read More

This decision holds that the trial court erred in granting defendant summary judgment against plaintiff's claim to quiet title to a railroad easement across plaintiff's property benefiting defendant's parcel.  Plaintiff claimed the railroad had abandoned the easement.  Abandonment depends on cessation of use of the easement for permitted purposes and the easement owner's intent not to use the easement in… Read More

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

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

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

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

This decision affirms a summary judgment for the insurer against a business interruption insurance claim by a casino due to COVID-19.  The decision holds that while it may be enough to overcome a demurrer for the complaint to allege simply that COVID-19 altered the surfaces of the plaintiff's business property, at the summary judgment stage much more is required to… Read More

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