California Appellate Tracker

Defendant, an attorney, called plaintiff, ex-wife, to a meeting with defendant's client, the ex-husband, who was subject to a criminal DVRO forbidding him from contracting plaintiff.  At the meeting, defendant joined with the ex-husband in verbally abusing plaintiff and urging her to sign a stipulation giving the ex-husband custody of the children, threatening her with a suit to obtain custody. … Read More

CHP policies that do not take into account ability to pay in assessing fees for impounding and storing cars do not violate car owners' due process rights.  The fees are not criminal fines but are reimbursements for third party costs in taking and storing the cars.  Also, the CHP gives the owners notice of the seizures and provides an opportunity… Read More

The McDonnell Douglas burden-shifting test applied in race discrimination in employment cases does not apply to a policeman's mandate petition seeking to compel the department to grant him a promotion and complaining not of racial or ethnic discrimination but rather of the fact that the department considered evidence of misconduct from a disciplinary proceeding against him which had been terminated… Read More

Appeals, Appealable Orders, Nonsuit Order, Not Appealable, 1, 11 An order granting a nonsuit motion on the plaintiff's complaint is not an appealable order.  Only a document labeled judgment or dismissal or containing language granting a judgment or dismissal is appealable. Read More

Falsity is a key element of a claim under Securities Act section 11 and Securities Exchange Act section 10 (and Rule 10b-5).  To satisfy Rule 9(b) and the PLRSA's heightened pleading requirements, a plaintiff must plead specific facts showing what was represented and why it was false.  In this case, plaintiff failed to do so because it failed to define… Read More

The Court of Appeals reviews de novo whether the trial court properly denied leave to amend (following granting a motion to dismiss) on the ground of futility.  Here, the Court of Appeals agreed with the district court that further amendment would be futile because in dismissing the previous complaint, the district court explained in some detail what needed to be… Read More

Judgment, Vacation of, No Time Limit On Motion To Vacate Void Judgment, CCP 473(d), 1, 11 Disapproving Trackman v. Kenney (2010) 187 Cal.App.4th 175, Rogers v. Silverman (1989) 216 Cal.App.3d 1114 and similar decisions, this decision holds that there is no time limit within which a party must file a motion under CCP 473(d) on the ground that the judgment… Read More

Defendant's Anti-SLAPP motion to strike was frivolous, entitling the plaintiff to an award of attorney fees.  The petition plainly alleged claims based in part (if not completely) on non-protected activity, yet the motion did not identify within each claim the portions of the claim that were allegedly based on protected activity, as is the moving party's burden in bringing an… Read More

Unfair Competition, Limitations, Delayed Discovery Rule Applies, 1, 11 This case holds that delayed discovery may toll the four year statute of limitations on a public prosecutor's claim for civil penalties under the UCL for a violation that does not involve fraud.  Generally, the common law exceptions to statutes of limitations apply when those statutes are silent, as B&P Code… Read More

The trial of this unlawful detainer action was electronically recorded, without a court reporter present.  The recording was lost.  After the Appellate Department affirmed the judgment, largely due to the lack of a reporter's transcript of the trial, defendant moved for a new trial and appealed from denial of that motion.  This decision holds that CCP 911 which allows a… Read More

Contracts, Forum Selection, Nonwaivable Rights, Jury Trial Waiver, 1, 11 Following Handoush v. Lease Finance Group, LLC (2019) 41 Cal.App.5th 729, this decision holds that the trial court erred in enforcing a forum selection clause selecting a Washington state court forum because the contract also contained a jury trial waiver clause.  The moving defendant bore the burden of showing that… Read More

This decision affirms a default judgment despite the plaintiff's plea on appeal that the trial court had erred in not awarding more damages, attorney fees, and discovery sanctions.  Trial courts must serve as gatekeepers when default judgments are sought, assuring that the plaintiff proves with evidence the claimed damages.  Here, the fight was over a $47,000 bill for inadequate plumbing… Read More

A probate court order granting, in part, a petition under Probate Code 17200 seeking to invalidate a provision of a testamentary trust was an appealable order under Probate Code 1304 despite leaving undecided certain aspects of the relief that the petition requested.   Read More

Real Property, Restraint on Alienation, Testamentary Trust Restriction On Resale, 1, 11 Civ. Code 711 voids “conditions restraining alienation, when repugnant to the interest created."  This decision holds that section 711 applies to restrictions a testamentary trust imposes on resale of property to be conveyed to a beneficiary under the trust.  Here, in an attempt to keep the family home… Read More

Debt Collection, False Representation, Misidentifying The Debtor, 1, 11 Plaintiff, a debt collector, sued one Yolanda Rodriguez on a debt owed by a different woman with the same name, but a different age and Social Security Number.  After this was shown to plaintiff, it dismissed the suit, but this decision holds that the trial court erred in granting plaintiff's Anti-SLAPP… Read More

Appeals, Appealable Orders, Probate, Order Suspending A Trustee & Appointing Interim Trustee, 1, 11 An probate court order suspending a trustee and appointing an interim trustee is not directly appealable.  Probate Code 1300-1304 list the types of probate court orders that are appealable.  Suspension of a trustee is a provisional remedy; whereas as removal of a trustee is a final… Read More

The trial court erred in granting defendant summary judgment on plaintiff's FEHA claims for sex discrimination and harassment.  On the discrimination claim, plaintiff's evidence showed that male flight attendants were not disciplined as severely as she was for posting suggestive pictures in uniform on her social media page.  Additional evidence raising a triable issue as to discrimination included the evidence… Read More

Employment, PAGA Suit, Standing To Bring PAGA Claim After Arbitration Loss On Individual Claims, 1, 11 Following Rocha v. U-Haul Co. of California (2023) 88 Cal.App.5th 65 and not Gavriiloglou v. Prime Healthcare Management, Inc. (2022) 83 Cal.App.5th 595, this decision holds that an arbitration award in the employer's favor on all of  the employee's individual Labor Code violation claims… Read More

The arbitrator issued what he titled an Interim Award which seemed to resolve all of plaintiff's claims against her.  However, the award stated that it would become final unless a party filed a motion within 20 days pointing to an issue that the Interim Award did not resolve.  Plaintiff filed such a motion within 20 days, pointing out that the… Read More

After the trial court sustained defendants' demurrer with leave to amend, plaintiff filed an amended complaint which no longer named the HOA as a defendant and stated no claim against it.  Under CCP 581(f)(2), the trial court had discretion (which it did not abuse) to dismiss the HOA with prejudice.  If plaintiff had wished to dismiss the HOA without prejudice,… Read More