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Torts

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In reviewing an order denying an Anti-SLAPP motion in a malicious prosecution case, the appellate court applies the norrmal standard of review, drawing all inferences in favor of the non-moving party.  Those inferences will not affect the case when it proceeds to trial.  And the appellate court's affirmance of the order denying the Anti-SLAPP motion will only preclude a summary… Read More

The interim adverse judgment rule did not prevent this malicious prosecution action because the maliciious prosecution defendant had engineered a denial of the defense summary judgment motion in the underlying action by withholding of a critical piece of evidence in willful violation of multiple court orders--which had it been produced would have resulted in summary judgment being awarded.  The withheld… Read More

A unilateral dismissal of the underlying action while facing a motion for terminating discovery sanctions was a favorable termination sufficient to serve as the basis for a malicious prosecution action by the former defendant even though the dismissal was accompanied by a negotiated payment of less than all of the former defendant's legal fees.  The slight reduction in fees was… Read More

To survive express and implied preemption, a state law claim against a medical device manufacturer must allege a claim that is based on conduct that violates the Federal Food, Drug and Cosmetic Act but is wholly based on state law which would give rise to recovery even if the federal act did not exist. Here, plaintiff's claims of negligence and… Read More

A sorority did not owe a duty of care to guests of its off-campus party to protect them from assault and battery by uninvited persons crashing the party.  The measures that plaintiff claimed the sorority should have taken to prevent the harm--hiring private security personnel and maintaining and enforcing an invited guest list--were highly burdensome.  To justify that degree of… Read More

An animal that is not itself sick is not a product for purposes of a design defect products liability case.  Here, a rat that Petco sold as a pet had a bacterial infection that did not produce a disease affecting the rat but one that rarely, but in this case, fatally, produces a disease in humans.  This decision holds that… Read More

Flying into a tirade at a 13-year-old girl who had been drugged and raped and yelling at her that she was stupid and it was her fault is extreme and outrageous conduct that exceeds that bounds of decency tolerated in a civilized community and so the tirade supports a claim for intentional infliction of emotional distress.  To make matters worse,… Read More

Probate Code 859 provides for an award of double damages if the court finds that the defendant son has in bad faith wrongfully taken . . . property belonging to a . . . dependent adult, . . .  or has taken . . . the property by the use of undue influence in bad faith or through the commission… Read More

A governmental entity is immune from suit for the conduct of its employees or agents which could constitute a tort only if done by the governmental entity itself, in this case an abuse of process suit based on its employees and agents allegedly misuse of discovery in a civil action to audit the plaintiff's records for unclaimed property. Read More

Plaintiff's evidence, if believed by a fact-finder, would have supported the contention that defendant's ginkgo-infused pills had no mind-sharpening properties, contrary to defendant's advertising claims; so defendant was not entitled to summary judgment. Read More

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