California Appellate Tracker

Insurance, Exclusions, Sexual Molestation, "Care, Custody, or Control", 1, 12 Gordon sued the owner and operator of a massage parlor for sexually molesting her while giving her a massage.  This decision holds that the massage parlor's insurer owed no duty to defend  or indemnify with respect to the claim due to a sexual molestation exclusion in the policy.  The exclusion… Read More

Summary judgment was properly entered against plaintiff who tried to hold Farmers vicariously liable for its agent's underestimate the replacement cost of plaintiff's house and thus ordered inadequate fire insurance from California FAIR Plan.  Farmers' contract with the agent allowed the agent to write insurance on Farmers but not on the FAIR Plan.  And Farmers had not engaged in any… Read More

Under Com. Code 2305(2), a party that has the discretionary power to set the price of goods under the parties' contract must set that price in good faith.  Section 2305 defines good faith as the observance of reasonable commercial standards of fair dealing in the trade, and .includes a “safe harbor” provision, providing that “in the normal case a posted… Read More

The trial court improperly allowed plaintiff to avoid arbitration under CCP 1281.98 when her employer defendant missed paying an arbitrator's fee in a timely manner after having paid for a year in a timely manner.  The reason the section did not apply was that the parties had agreed to arbitration only after suit was filed and only after weeks of… Read More

A preliminary injunction issued against a defendant who had not been served with the complaint and summons was void for lack of fundamental jurisdiction.  The unserved defendant did not waive the objection to lack of service in the trial court; lack of fundamental jurisdiction may be raised for the first time on appeal.  Also, the unserved defendant did not consent… Read More

Under Civ. Code 845, the owner of an easement must maintain it in good repair.  This decision holds that the required maintenance is maintaining or keeping up and preserving the easement in good and sound condition but the owner of the easement is not required to build improvements that might benefit the easement, by, in this case, preventing further erosion… Read More

Similar harms that occur to the same primary right at different times raise separate causes of action.  So a judgment in a prior action arising from a flood's destruction of the land under an easement was not claim preclusive of a claim for additional erosion caused by a later flood at the same location.  However, the prior judgment was issue… Read More

Family Law, Sperm Donor Loses Parental Rights Upon Child's Adoption, 1, 11 Plaintiff donated his sperm so that the defendant lesbian couple could have a child.  Shortly after the child's birth, plaintiff consented to the couple's adoption of the child.  A decree of adoption was duly entered.  Under Fam. Code 8617(a), that decree ended plaintiff's parental rights in the child,… Read More

Ordinarily, a plaintiff is entitled to recover only the lesser of the amount he or his insurer paid for past medical expenses or the reasonable value of the medical services provided to him.  However, to subsidize hospital emergency room care, the Legislature enacted Civ. Code 3045.1, which allows hospitals to collect from third party tortfeasors the difference between their negotiated… Read More

The trial court erred in sustaining defendant's demurrer.  It was a question of fact for the jury to decide whether a school police officer was acting within the course and scope of this employment when he assaulted plaintiffs in the course of retrieving his cellphone from them.  The officer showed his badge and pulled his gun, using it in his… Read More

A single incident--here an assault by a school police officer--can be sufficient to support a claim under the Bane Act (Civ. Code 52.1). Read More

Plaintiff adequately alleged a claim for negligent hiring, training, and retention of a school police officer by the defendant school district.  Plaintiff alleged that the school district employees who should have conducted an investigation into the officer's background before hiring him acted negligently.  There was no need for the plaintiff to allege that the officer had a past history of… Read More

Paramedics did not owe a duty of care to an adult car driver who, following a head-on collision, repeatedly told the paramedics she was not injured and did not want or need medical assistance--even after the paramedics warned her she should be seen at a hospital and might have sustained injuries that were still asymptomatic.  After the paramedics left her… Read More

Plaintiff waived his objections to the trial court's statement of decision by failing to object to specific findings and not pointing out any ambiguities or omissions but simply disagreeing with some of the findings and citing some evidence that might have supported a contrary finding.  Consequently, the doctrine of implied findings applied to bolster the statement of decision against attack… Read More

Plaintiff waived his substantial evidence challenge to the judgment by failing to recite in his opening brief the evidence favorable to the judgment; just referencing the evidence supporting his contrary arguments was insufficient.  The Court of Appeal does not take a fresh look at the evidence but instead credits all evidence supporting the judgment and disregards all contrary evidence.  The… Read More

Summary judgment for shopping center is affirmed in this case involving a slip and fall injury caused by oranges on the floor of the shopping center.  The owner's evidence showed training and protocol for inspections by employees who traversed common areas in serpentine pattern of walking looking for debris or other hazards on the floor.  The owner's evidence also showed… Read More

An amusement park operator is not subject to the heightened standard of care of a common carrier under Civ. Code 2168 when the plaintiff was injured before she passed the final inspection by amusement park employees for ride eligibility and while she was still able to exit from the platform and bypass the ride itself.  When a passenger has not… Read More

Courts, Contempt, Post-Judgment Discovery, Non-Party Witness, Attorney Fee Award, 1, 11 CCP 1218(a) authorizes a court to award attorney fees in favor of the party prosecuting a contempt proceeding and against a person who is subject to court order as a party to the action and is found to have committed contempt by violating a court order.  This decision holds… Read More

A claim against the county for malpractice by the public defender at a probation revocation hearing is a tort claim, not a contract claim, and so under the Government Claim statute, the plaintiff had to file a claim with the county within six months after his claim accrued.  Here, he waited 11 months before filing his claim.  The trial court… Read More

Limitations, Waiver, Failure to Plead Properly or Raise by Motion, 1, 11 Defendant waived her statute of limitations defense under CCP 340.6 (attorney malpractice) by failing to raise it in her timely first Anti-SLAPP motion to strike.  She did raise the statute in a second Anti-SLAPP motion which was denied as untimely.  But then in her answer, defendant raised the… Read More