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
Under 15 USC 78u(d)(5), in an action commenced by the SEC, the court may award "any equitable relief that may be appropriate or necessary for the benefit of investors." The term "equitable relief" allows the court to grant the categories of relief typically available in equity as shown by consulting works on equity jurisprudence. Those works show that restitution or… Read More
If no objection is raised by the US Trustee or any creditor, it is permissible for a debtor to propose and obtain confirmation of a Chapter 13 plan with an estimated duration rather than a fixed term, so long as the plan duration does not exceed the statutory maximum of three or five years. Read More
Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154 and other cases involving claims that the lawyer's malpractice caused the client to enter into an inadequate settlement--so-called "settle and sue" cases--say that the client must prove the causation and damages elements of the claim to a "legal certainty." Whatever that may mean, this decision holds that it does not mean that the… Read More
The trial court correctly denied an employer's motion to compel arbitration after the ex-employee plaintiff dismissed his UCL claim, leaving only a PAGA claim. The employer's arbitration clause stated that the arbitration clause did not apply to any representative action under PAGA, which instead had to be litigated in court. By specifying that the "action" would be litigated in court,… Read More
The trial court correctly denied defendant's Anti-SLAPP motion. Plaintiff, a celebrity, alleged that Mathews, a private eye, hired by Bauer, a tabloid publisher, had illegally installed a tracking device on the car driven by plaintiff's caretaker. Though news gathering efforts are protected speech under CCP 425.16(e), here Bauer denied that it authorized placing the tracking device, so it couldn't claim… Read More
This decision adopts the majority view that a website that is inaccessible to the blind can be a "place of accommodation" that violates the federal ADA and state Unruh Act if the website has a sufficient nexus to the provision of or access to the goods or services the defendant offers from its physical locations. Here, plaintiff alleged sufficient nexus… Read More
AB 1687 (which enacted Civ. Code 1798.83.5 is an unconstitutional prior restraint on free speech. It required a subscription service, like IMDb, to remove from the service and any affiliated public website at a subscriber's request, the subscriber's age and date of birth. The statute is a prior restraint on speech that bars particular content and applies to specific speakers. … Read More
The parties' contract contained a choice of law clause choosing New York law. Under New York law, prejudgment interest is to be awarded on any contract claim regardless of whether the damages are fixed or reasonably calculable, and interest is awarded at 9%, rather than at 10% as in California. Under Restatement (Second) of Conflicts of Law, section 207, if… Read More
While a default judgment may not award damages in an amount greater than that alleged in the complaint, it is not necessary to plead the amount of prejudgment interest, costs or attorney fees. A default judgment which may otherwise properly award prejudgment interest, costs and attorney fees may do so even if the total judgment, including those items, exceeds the… Read More
A defendant against whom a default has properly been entered is not entitled to service of notice of hearing on entry of default judgment or to service of a copy of the evidence submitted in support of the default judgment. Also, since the defaulted defendant has no right to participate in the prove-up hearing, it cannot show any prejudice from… Read More
The trial court correctly denied defendant's Anti-SLAPP motion in this bad faith case by an insured against its insurer. The insured claimed the insurer had breached its duty of good faith by retaining conflicted counsel, failing to pay amounts owed, and misleading Trilogy regarding obligations under the policies. The insured alleged that the insurer urged or compelled defense counsel to… Read More
Despite the Erie Doctrine, federal law limits the equity jurisdiction of federal courts. Federal courts may not issue equitable relief if the plaintiff has an adequate remedy at law, and that rule holds true even in a diversity case otherwise governed by state law and even though state law might allow state courts, hearing the same claim, to award equitable… Read More
A candidate for public office petitioned for a writ of mandate challenging the opposing candidate's ballot statements as misleading. The petition was dismissed on the merits; then the real party's (opposing candidate's) AntiSLAPP motion was denied as moot and his separate motion for a private attorney general fee award was denied on the ground he had not shown his defense… Read More
Under Wage Order 16, an employer must pay a worker at least the minimum wage for mandated travel time between the place where the employer first exerts control over the employee and the place where the employee performs work. Here, the employee was entitled to minimum wage for all time spent from the check in point, waiting for and then… Read More
The trial court did not err in refusing to instruct the jury on the consumer expectation test in this design defect products liability case. The plaintiff was injured when his forklift, designed for use on uneven surfaces, overturned, and he fell out of the cab and suffered severe injuries. The forklift had a roll-over cage and two-point safety belts as… Read More
Under City of South Lake Tahoe v. California Tahoe Regional Planning Agency (9th Cir. 1980) 625 F.2d 231, 233 and its progeny, a state's political subdivisions lack standing to challenge a state statute on constitutional grounds in federal court. That rule applies to as-applied as well as facial challenges to state statutes. Also, since the PUC is an arm of… Read More
An order denying a motion for a judicial reference is not an appealable order even when made as an alternative to a motion to compel arbitration. Here, the parties' agreement provided for arbitration of disputes with the exception of those involving debts secured by California real property, and as to those provided that either party could demand a judicial reference… Read More
Under CCP 664.6, the court may, if the section's conditions are met, enter judgment enforcing the parties' settlement. However, that judgment must state all terms of the settlement agreement that have not yet been fully performed. The judgment can do nothing else. If the settlement reserves jurisdiction in the court to enforce the settlement, the court may, after entering judgment… Read More
The district court abused its discretion in setting the hourly rate based solely on the amounts awarded the same attorney in prior decisions in other cases while rejecting his affidavits regarding hourly rates of other attorneys prosecuting similar types of actions. No. 16-16179, 2019 U.S. App. LEXIS 27491 (9th Cir. Sep. 12, 2019) Read More
