California Appellate Tracker

Under CCP 1281.91(b), a party has an absolute right to disqualify a neutral arbitrator (once) without cause if done within 15 days of the arbitrator's providing the parties the disclosures required by CCP 1281.9.  This decision holds that the right to peremptorily disqualify a neutral arbitrator under section 1281.91 is not waivable in advance so that defendant could disqualify the… Read More

The Ninth Circuit applies the abuse of discretion standard of review to review a summary judgment in a trademark infringement case if the summary judgment is granted on equitable grounds such as unclean hands, laches or acquiescence. Read More

A student is entitled to notice and an opportunity to be heard before a written disciplinary reprimand is placed in his student file.  However, the student is not entitled to a trial type hearing or to confront and cross-examine witnesses against him when such a low level of discipline is imposed.  A trial-like hearing would impose too great a burden… Read More

The Motor Vehicle Franchise Contract Arbitration Fairness Act (15 USC 1226) creates a narrow exception to the Federal Arbitration Act, banning arbitration (without both parties' post-dispute consent) of claims arising from a motor vehicle franchise contract, which it defines to mean a contract under which the franchisee both sells and services motor vehicles.  Vehicle Code 11713.,3(g) contains the same terms… Read More

The trial court abused its discretion in denying private attorney general fees under CCP 1021.5 to plaintiff who had prevailed on appeal, in a published decision, in reversing the defendant college's decision to expel him for having supposedly committed a sexual assault on another student.  The published appellate decision held that the college had failed to conduct the disciplinary proceedings… Read More

Under CCP 685.040, attorney fees incurred in enforcing a judgment may be recovered if the judgment includes an award of attorney fees pursuant to contract.  This decision holds that a judgment that awards attorney fees, suffices to allow an award of attorney fees incurred in enforcing the judgment even though neither the judgment nor any post-judgment order set an amount… Read More

This decision affirms a judgment against the plaintiff holder of the first deed of trust on a Nevada dwelling that was foreclosed upon by the homeowners association for nonpayment of association dues.  The decision holds that the CC&R clause that expressly subordinated the association's lien for unpaid dues to the first deed of trust did not render the foreclosure sale… Read More

Defendant paid its nurse employees a regular hourly wage plus a fixed $35 per diem for employees working more than 50 miles from home.  This decision holds that the per diem sum is regular wages, not reimbursement for travel and other expenses and so must be included in the employees' regular pay when computing the 150% of regular pay to… Read More

Following Mejia v. DACM, Inc. (2020) 54 Cal.App.5th 691, this decision affirms an order denying a motion to compel arbitration.  As in Mejia, this decision distinguishes Clifford v. Quest Software Inc. (2019) 38 Cal.App.5th 745, saying it involved only the defendant's employees, not the broader public which this suit sought to benefit by an injunction against defendant's allegedly unfair practices… Read More

The trial court properly awarded Attorney General Becerra attorney fees under CCP 1021.5 for successfully defending this lawsuit which produced an earlier published opinion holding that Gov. Code 12503's requirement that the candidate for Attorney General must have been admitted to practice for five years before the election was satisfied by inactive as well as active membership in the State… Read More

Reversing an order denying arbitration, this decision holds that the arbitration clause had only a minimal degree of procedural unconscionability due to the employer's greater economic power and only one clause that was substantively unconscionable but severable.  The employer was not required to give plaintiff a Spanish translation since plaintiff did not show she lacked English language skills, just that… Read More

Employer sent plaintiff a letter offering employment.  The letter contained an integration clause, but also stated that plaintiff would need to sign the employer's separate arbitration agreement.  This decision holds that the integration clause did not bar introduction of evidence of the arbitration agreement since it was not inconsistent with the offer letter's terms.  Also, the the offer letter sufficiently… Read More

While a trial court has broad discretion to appoint a receiver for property or a business owned by a judgment debtor, as a means of enforcing a judgment (CCP 708.620), a receiver is a harsh, expensive remedy that should be employed only based on evidence that the judgment debtors have obfuscated or frustrated the creditor’s collection efforts and that less… Read More

The Foreign Sovereign Immunities Act (28 USC 1604) generally shields foreign sovereigns from suit in United States courts, but permits suit here if rights in property have been taken in violation of international law.  This decision holds that property that a foreign sovereign takes from its own citizens, however wrongfully, does not fall within the exception to foreign sovereign immunity… Read More

After the California Supreme Court's decision on certified questions in Ward v. United Airlines, Inc. (2020) 9 Cal.5th 732, this decision holds that California's application of Labor Code 226 to transport workers who work a majority of their time in California does not violate the dormant Contract Clause and is not preempted by the Airline Deregulation Act or the Railway… Read More

After the California Supreme Court decided that Dynamex and its ABC test of employment for purposes of IWC wage orders applies retroactively, this 9th Circuit decision remands the case to the district court for further proceedings, giving extensive guidance to the district court in the process.  First, the ABC test applies to a three tier franchising operation such as Jan-Pro's. … Read More

The district court correctly granted summary judgment to plaintiff on its copyright infringement claims arising from defendants' copying its copyrighted fabric designs.  To be copyrightable, a work must be original, that is not copied.  But unlike a patent, a copyright does not require that the original work be unlike prior art.  Here, plaintiff's floral fabric coloring design was independently created,… Read More

Summary judgment was properly entered against plaintiff on his FEHA retaliation claims.  The employer introduced evidence showing it promptly investigated plaintiff's complaint about his supervisor's discriminatory conduct and moved plaintiff to a different part of the company under a different supervisor.  When plaintiff was later fired, it was for poor performance, as determined by three supervisory employees who were unaware… Read More

Summary judgment was properly granted the employer on plaintiff's California Family Rights Act claims.  Plaintiff introduced no evidence that he had requested medical leave.  Instead, when he complained about suffering migraine headaches, and the employer asked who could replace plaintiff in supervising his staff, plaintiff said medication would cure the headache in a few hours.  The employer also produced unrebutted… Read More

This decision reverses an order denying an Anti-SLAPP motion by the author of a Facebook post that was later republished by BBC's Vietnamese Service about plaintiff, a self-made and proclaimed billionaire who co-founded a large Vietnamese company and dated a prominent Vietnamese model, thereby making himself a public figure in the Vietnamese community.  The defendant showed that his article was… Read More