California Appellate Tracker

Subscribe to California Appellate Tracker

Thank you for your desire to subscribe to Severson & Werson’s Appellate Tracker Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

This decision affirms dismissal of plaintiff's 42 USC 1983 claims against Twitter and California's Secretary of State for lack of state action.  After the Secretary of State's office flagged plaintiff's tweets as false or misleading, Twitter removed them for violating its content-moderation policy.  Despite its interaction with state officials, Twitter's enforcement of its own content moderation policy did not constitute… Read More

Following Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221 and Terry v. Conlan (2005) 131 Cal.App.4th 1445, this decision affirms an order denying a trustee payment from the trust of attorney fees that the trustee incurred in defending against one putative beneficiary's suit to invalidate an amendment to the trust.  The challenge to the amendment would not, even if successful, have… Read More

Following Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, this decision affirms an order denying arbitration after the defendant refused to pay all arbitration costs.  Substantial evidence supported the trial court's finding that Daniel Hang was indigent when he died while in defendant's care.  His son brought suit for elder abuse and negligent hiring and supervision as Hang's successor-in-interest. … Read More

Reaching the same result as Galarsa v. Dolgen California, LLC (2023) 2023 Cal. App. LEXIS 129, this decision holds that plaintiff's individual PAGA claims (i.e., those which are based on Lab. Code violations affecting the plaintiff) must be arbitrated.  However, representative PAGA claims based on Lab. Code violations affecting only employees other than the plaintiff are not subject to arbitration,… Read More

A third party’s occupancy and payment of rent may lead to a permissive inference, but not a mandatory presumption, of assignment of the lease to the third party in breach of an anti-assignment clause in the lease.  Here, a woman rented the apartment but did not occupy it for extended periods while she was outside the country attending to her… Read More

Defendant's posts on social media about plaintiff who was a lobbyist assisting a church in seeking city council approval of a development project were not absolutely privileged under CC 47(b).  The social media posts were not made in preparation for the official proceedings before the city council.  The unprivileged social media posts were defamatory, accusing the plaintiff of engaging in… Read More

The trial court properly granted defendants' Anti-SLAPP motion.  Despite plaintiff's allegation that defendant had engaged in extortion, this case was distinguishable from Flatley v. Mauro (2006) 39 Cal.4th 299 because defendant denied that he had threatened to report plaintiff to the State Bar unless he settled defendant's client's suit for refund of an unearned retainer fee.  His emails, though contentious,… Read More

Following Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, this decision holds that an arbitration clause that merely calls for arbitration of all disputes arising under the agreement but does not specifically mention disputes about arbitrability issues fails to meet the "clear and unmistakable" standard for delegation of arbitrability questions to the arbitrator.  It also follows Ajamian in folding that… Read More

Under 11 U. S. C. §523(a)(2)(A), a bankrupt may not discharge a debt for money, etc., to the extent obtained by false pretenses, a false representation, or actual fraud.  This decision holds that a fraud debt is nondischargeable even if the bankrupt did not commit the fraud but is held vicariously liable under state law for the fraud as a… Read More

Under the FLSA, an employer need not pay overtime pay to employees who work in a bona fide executive, administrative, or professional capacity.  Dept. of Labor regulations impose three tests for the exemption's applicability, one of which is that the employee must be paid on a "salary basis."  This decision holds that the regulation defining "salary basis" requires that the… Read More

Summary judgment for defendant employer was reversed in this disability discrimination in employment case.  Defendant tentatively decided to lay plaintiff off before she became disabled, but didn't follow through with that decision until after plaintiff suffered a disabling injury.  Plaintiff produced sufficient evidence to raise a triable issue of fact as to whether defendant's concern with plaintiff's disability led to… Read More

An equitable servitude may be created in personal property by agreement. (Nadell & Co. v. Grasso (1959) 175 Cal.App.2d 420.)  Here, the Academy of Motion Picture Arts & Sciences, which confers Oscars, created an equitable servitude in the statuettes (the Oscars) it distritubes to winners of its prize.  The servitude allows the Academy to repurchase the statuette if the winner… Read More

Part of the Healthy Workplaces, Healthy Families Act of 2014, Lab. Code 248.5(e) provides that  “any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief ."  This decision holds that "enforcing this article on behalf of the public" refers… Read More

The court that wrote Inns-by-the-Sea v. California Mutual Ins. Co. (2021) 71 Cal.App.5th 688 affirms summary judgment for the defendant insurer in the COVID-19 case.  While the plaintiff introduced sufficient evidence to show that COVID-19 airborne particles might have caused physical damage to the motel, the plaintiff couldn't show that its business losses were due to that contamination rather than… Read More

The district court correctly dismissed this suit, invoking Younger abstention.  Plaintiff sought to enjoin the defendant district attorney from prosecuting it in state court for employing a vendor to make harassing collection calls in violation of state law.  The four Younger factors all weighed in favor of abstention.  The state action was ongoing as no proceedings of substance had yet… Read More

1 2 3 148