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Following Balistreri v. Balistreri (2022) 75 Cal.App.5th 511, this decision holds that if a trust provides a procedure or method for amending the trust, whether phrased as exclusive or optional, any amendment must conform to that procedure or method; otherwise it is invalid.  Prob. Code 15402’s “qualification ‘[u]nless the trust instrument provides otherwise’ indicates that if any modification method is… Read More

Summary judgment was properly entered against plaintiff on her FEHA disability discrimination claim.  She was fired when she refused to take a flu vaccine which her employer required as a condition of employment.  Plaintiff had undergone chemotherapy for colon cancer, but had survived with the cancer in remission.  Lingering side effects of the chemotherapy were not contraindications for taking a… Read More

28 USC 1367(d) provides that when a case is brought within the federal courts' original jurisdiction and state law claims are also asserted, invoking the federal court's supplemental jurisdiction, any applicable statute of limitations is tolled for a period of 30 days following dismissal of the state law claims if the federal court declines to exercise jurisdiction over them.  This… Read More

Plaintiff's use of Andy Warhol's silkscreen prints of defendant's photograph of Prince is not exempt from copyright infringement under the fair use doctrine.  While Andy Warhol transformed the photograph somewhat, the proposed use of his silkscreen as a magazine cover directly competed with defendant's initial use of the photograph for the same purpose.  The direct competition brought the use outside… Read More

Reversing Gonzalez v. Google LLC (9th Cir. 2021) 2 F.4th 871, the Supreme Court holds that the Justice Against Sponsors of International Terrorism Act of 2016 (JASTA; 18 USC 2333) which amended the ATA to include secondary civil liability for aiding and abetting, or conspiring to commit, acts of international terrorism requires proof of knowing assistance in criminal activity according… Read More

Kinder was a patient at defendant's residential skilled nursing facility.  The trial court correctly denied a motion to compel arbitration of Kinder's personal injury claim because she did not sign the facility's arbitration agreement.  Instead, her adult child signed for her.  The facility produced no evidence to show that the signer had actual or ostensible authority to sign for Kinder. … 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

Under CCP 1281.91 and the Ethical Standards for Neutral Arbitrators, an arbitrator must disclose pending and prior arbitrations (during the previous 5 years) involving the parties to a dispute referred to him.  The arbitrator must also disclose the results in the prior cases.  However, this decision holds that the arbitrator need not disclose the results in pending cases as those… Read More

Kaiser's arbitration clause satisfied H&S Code 1363.1's requirement that a health plan's arbitration clause be prominently displayed immediately before the patient's signature.  The enrollment was by computer.  The arbitration clause appeared just before a button marked "save" and a warning that by hitting that button, the patient would be agreeing to Kaiser's terms and conditions and enrolling in the health… Read More

Defendant didn't infringe on plaintiff's First Amendment rights by restricting him from talking to potential witnesses and other of defendant's employees about plaintiff's alleged transgressions while defendant conducted an investigation of those matters.  Plaintiff was not prevented from speaking about matters of public concern, but only from discussing his own alleged violation of defendant's policies—a matter of private, personal concern. Read More

Judgment was entered against Hewitt in 2012 for violating the FTC's Telemarketing Sales Rule.  The judgment required him to pay nearly $500 million in equitable monetary relief.  In AMG Capital Management, LLC v. FTC (2021) 141 S.Ct. 1341, the Supreme Court held that the FTC Act did not authorize awards of equitable monetary relief.  Hewitt moved to vacate that portion… Read More

The Federal Food, Drug, and Cosmetic Act preempted plaintiff's claim that defendant's label on a dietary supplement was misleading in naming the supplement "Glucosamine Sulfate" when its active ingredient was glucosamine hydrochloride.  The majority held that the FDA's labeling regulations governed the product name as well as the information in the nutrition facts panel and that following those regulations, the… Read More

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