California Appellate Tracker

No matter what its title, an order assigning a case (or here, a habeas corpus petition) to a particular judge is an all purpose assignment that requires a party to file a 170.6 motion within ten days of the assignment or of the party's appearance, whichever is later if (a) the order instantly pinpoints the judge whom the parties can… Read More

This decision holds that the US Supreme Court's later decision in Granite Rock Co. v. Int’l Bhd. Of Teamsters (2010) 561 U.S. 287, which expressly rejected the notion that labor arbitration disputes should be analyzed differently than commercial arbitration disputes undermined the reasoning of both Pacesetter Construction Co. v. Carpenters 46 Northern California Counties Conference Bd. (9th Cir. 1997) 116… Read More

A class action waiver is conceptually distinct from an arbitration agreement, though the two are often found together.  FINRA Rule 13204 forbids class action FINRA arbitrations.  Subsection (a)(4) also forbids an employer from enforcing an arbitration agreement against an employee who is a member of a certified class in a court action, at least with respect to the claims asserted… Read More

This decision holds that Trustees v. Greenough (1882) 105 U.S. 527, and Central Railroad & Banking Co. v. Pettus (1885) 113 U.S. 116 prohibit routine awards of incentive payments to named plaintiffs from a common fund class recovery.  Greenough upheld an award of attorneys’ fees and litigation expenses but rejected as without legal basis an award for the lead plaintiff's… Read More

This decision affirms the trial court's denial of the City's Anti-SLAPP motion to strike several allegations of allegedly protected activity from a complaint otherwise alleging contract and tort claims based on the City's obstruction of plaintiff's contract rights to process coal shipments through the Port of Oakland.  The decision ends with a lengthy and insistent call for reform of the… Read More

After the district court finally approved the class action settlement, the claims review committee adopted a "framework" for dealing with "branded title" claims, which for the first time disqualified vehicles purchased at insurance auto auctions from participating in the settlement benefits.  This decision holds that the appellant purchasers who had been denied benefits under this new framework rule were third… Read More

A commercial lease provided that tenant-paid renovations or fixtures became the landlord's property on termination of the lease.  Here, the lessee was a beauty salon which had installed a water heater and sinks in a built-in counter.  This decision holds the heater and sinks were fixtures even though they could easily be removed.  If the personalty attached to the realty… Read More

Under Civil Code 1950.7(c), a commercial landlord can use a tenant's security deposit to pay the tenant's defaults in payment of rent, repair damage to the premises or to clean the premises after the tenant's move-out--but only if the lease provides that the landlord can use the deposit for those purposes.  Here, the lease authorized use of the security deposit… Read More

California's automatic renewal law, B&P Code 17600 et seq. requires a consumer’s affirmative consent to any subscription agreement automatically renewed for a new term when the initial term ends as well as “clear and conspicuous” disclosure of the offer terms, and an “easy-to-use mechanism for cancellation.  However, this decision holds that the law's provision that "all available civil remedies that… Read More

When employees are compensated on a piece work basis, they must be separately compensated at either the minimum wage or higher contractual wage rate for the rest breaks to which they are legally entitled.  If the employees are allowed to take the rest breaks, but are not separately compensated for them, they can choose either, but not both, of the… Read More

A 998 offer made jointly to a defendant surgeon and his putative employer was invalid because it required both to agree to the offer.  Consent of a single defendant would be insufficient to accept the offer as presented.  The case illustrates why 998 offers are invalid when made to multiple defendants requiring all to consent.  The putative employer had defenses… Read More

Civil Code section 3333.2 which limits the recovery of noneconomic damages to $250,000 against health professionals in "professional negligence" cases does not apply to claims against such professionals for battery--at least when the battery is the performance of a surgery or other medical procedure to which the patient did not give his consent.  Here, the patient consented to removal of… Read More

A dispute between a client and an attorney over which owned the attorney fees awarded to the "prevailing party" in the underlying litigation was in the nature of a claim for specific performance of the fee agreement or for determination of ownership of property not in the plaintiff's possession, both of which were equitable claims.  So there was no right… Read More

Following Flannery v. Prentice (2001) 26 Cal.4th 572, this decision holds that absent a clear provision to the contrary in the client's fee agreement with its lawyer, the attorney fees awarded to a prevailing party under Civil Code, § 3426.4 (part of the Uniform Trade Secrets Act) belong to the attorney, not the client to the extent they exceed fees… Read More

An excess insurer may not challenge an underlying insurer’s payment decision as outside the scope of coverage and thus as improperly eroding the primary insurer's coverage and prematurely triggering the excess insurer's coverage—unless there is an indication that the payments were motivated by fraud or bad faith or the excess policy contains specific language reserving the excess insurer's right to… Read More

Though the defendant did not appear and defaulted, it did not thereby waive any objection to personal jurisdiction.  A trial court may and should determine its own subject matter and personal jurisdiction before entering a default judgment to assure that it is not a void decree.  Here, the trial court properly gave plaintiff notice of its doubt that it had… Read More

The trial court properly dismissed this personal injury suit by a bicyclist against Orange County under Gov. Code 831.4 which provides government entities absolute immunity from suit for injuries sustained while engaged in bike riding or while on a bike trail.  Plaintiff was injured when he rode his bike into a fence separating two parts of a bike trail.  The… Read More

Generally, an insurance agent owes only a regular agent's duties of reasonable care, diligence, and judgment in procuring the insurance requested by an insured.  However, an insurance agent may assume a greater duty to the insured when one of the following three exceptions arise: “(a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided,… Read More

Under 42 USC 12182(b), an owner violates the ADA if it fails to remove architectural barriers to handicap access in existing facilities where removal is readily achievable, or, if removal is not readily achievable, if it fails to make its goods or services available to a handicapped person through alternative methods, if they can be achieved without much difficulty or… Read More

Applying Arizona law, this decision holds:  (1) An ordinary fiduciary owes no duty to warn the beneficiary about an arbitration clause in the contract between them.  (2) An arbitration clause is presumed to continue to govern litigation arising from a contract even after the contract's other provisions have terminated--unless the agreement expressly or by clear implication provides otherwise.  Merely including… Read More