Recognizing there is a split of authority on the question, this decision holds that rulings on evidentiary issues in connection with a summary judgment motion should be reviewed for abuse of discretion, not de novo. However, on the merits, an order granting a new trial (after te grant of a summary judgment motion) is reviewed de novo. Read More
A 998 offer automatically expire when a trial court orally grants the offeror’s summary judgment motion. The offer cannot be accepted after the oral ruling. Read More
Reversing summary judgment on plaintiff's whistleblower retaliation claims under Lab. Code 1102.5, this decision holds that (a) the employee's reports to his supervisor and to the federal contracting officer that he thought he was being asked to prepare reports that violated NEPA was activity protected by section 1102.5--even though plaintiff claimed that the persons he reported to were wrong-doers. Read More
The trial court erred in granting Staples summary judgment on plaintiff's Equal Pay Act claim under Lab. Code § 1197.5. Following federal cases, this decision holds that a plaintiff can establish a prima facie case of an Equal Pay Act violation by showing she was paid less than a single male comparator. It is not a defense to show that… Read More
The trial court erred in granting defendant summary judgment based on expiration of the statute of limitations (CCP 340.5) in this medical malpractice case arising from a stillbirth following an operation to turn the fetus to a head-down position for birth. There was a question of fact as to whether plaintiff subjectively suspected malpractice the day before delivering the stillborn… Read More
During construction of a development in South Lake Tahoe, a worker for a subcontractor slipped on an icy floor, falling from a ladder and injuring himself. This decision holds that the trial court granted defendant summary judgment based on the Privette doctrine which bars claims by an injured worker for an independent contractor against the hirer of that contractor. This… Read More
Summary judgment for defendant hospital is affirmed. The doctor who malpracticed in conducting an operation on plaintiff at defendant hospital was not the hospital's actual agent. The contract between the two expressly denied any agency or employment relationship, and there was no evidence that the hospital exercised any control over the manner in which the doctor treated his patients. The… Read More
The district court erred in granting defendant summary judgment in this False Claims Act case. A genuine issue of triable fact existed as to whether defendant's use of the "KX" modifier in its Medicare reimbursement claims was material. The modifier indicated compliance with local coverage determinations. That certification was false, and it would be material if the trier of fact… Read More
Reversing a summary judgment in defendant's favor, this decision holds that defendant cannot claim a fair use defense to plaintiff's suit for infringement of its copyright on photos of an ephemeral lake in the Death Valley desert. All four fair use factors weighed against defendant. Defendant used the pictures for a commercial purpose--to profit from its article that included the… Read More
Summary judgment was properly entered for the defendant in this slip and fall accident on a public sidewalk. The trivial defect doctrine applied to shield the city from liability. The discontinuity between slabs of sidewalk paving over which plaintiff tripped was at most 3/4ths of an inch. There were no other factors adding to the dangerousness of that condition. Plaintiff… Read More
The trial court erred in granting the defendant attorney summary judgment on statute of limitations grounds since there was a triable issue of fact as to when his representation of the plaintiff was terminated--either slightly more or slightly less than a year before the malpractice action was filed. There was no formal withdrawal until less than a year before suit. … Read More
Under IWC Wage Order no. 7, an employer must "provide" a seat to covered clerical employees, unless work requirements preclude work while seated. This decision holds that except for the most obvious cases (such as where the employer has a seat at work station) whether the employer has "provided" a seat raises a question of fact that precludes summary judgment… Read More
On remand after reversal of an order dismissing the complaint (Sicre De Fontbrune v. Wolfsy (9th Cir. 2016) 838 F.3d 992), this decision reverses a summary judgment in defendant's favor refusing to enforce a French judgment for "astreinte" damages for using photos of Picasso paintings infringing plaintiff's copyright in the photos. The French judgment that plaintiff sought to enforce was… Read More
The district court erred in certifying a plaintiff class in this case challenging defendant's classification of its property preservation workers as independent contractors and asserting claims for overtime pay and expense reimbursement. Plaintiffs could not prove fact of damage--not just amount of damage--by common evidence since some class members had not worked overtime or incurred reimbursable business expenses. The district… Read More
Summary judgment was properly granted to defendant in this 10b-5 suit that came after a dramatic decline in Align's stock price following an abrupt decrease in its sales growth in China. The abrupt decline in sale growth which came only three months after positive remarks by Align's management and was unexplained by other external events was sufficient to give rise… Read More
The trial court correctly granted defendant summary judgment in this slip-and-fall injury suit in an exercise facility's sauna room. The release of claims in the fitness center's membership agreement absolved the fitness center of liability for ordinary negligence. Plaintiff failed to submit evidence creating a triable issue of fact as to gross negligence. She claimed to have fallen because the… Read More
The trial court erred in granting defendant school district summary judgment. Plaintiff, a student at the district's high school was stabbed by third person when following after school sports practice, she briefly visited a Starbucks and then returned to the high school to recover her books from her school locker. The brief diversion to Starbucks did not interrupt the school's… Read More
Following Van Patten v. Vertical Fitness Group, LLC (9th Cir. 2017) 847 F.3d 1037, 1044-1045, this decision affirms summary judgment for defendant in this TCPA suit based on a finding that plaintiff gave his express consent to defendant's text messaging his cellphone. A person who knowingly releases his cellphone number consents to be called at that number so long as… Read More
This decision affirms a summary judgment for Walmart on a model's claim for waiting time penalties for Walmart's failure to pay her all earned wages after each one- or two-day photo shoot. Although triable issues of fact remained as to whether plaintiff was an employee to whom Labor Code 203 applied, Walmart had established its defense of a good faith… 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
