California Appellate Tracker

Under Rule Prof. Conduct 1.18, an attorney may be disqualified from representing the opponent of a prospective client that while negotiating to become a client discloses material confidential information to the attorney.  This decision states that materiality is to be measured at the time of the motion to disqualify so that, for example, the fact that the prospective client intended… Read More

First Amendment, Anti-SLAPP Motion, Breach of Contractual Indemnity Clause, 1, 4 Plaintiff sued the landlord of his ice cream store for damage suffered in a fire that began in a different part of the building and burnt the ice cream store to the ground.  The landlord cross-complained for breach of the ice cream store's lease provision which required the store… Read More

A $10 million judgment in a sex harassment, discrimination, and retaliation case is reversed because the trial court erred in admitting into evidence (i) a newspaper article about a 20-year old expunged misdemeanor conviction of the principal defendant, and (ii) me-too evidence by a dis-similar woman (a student vs. plaintiff, a tenured professor) about a different administrator than the principal… Read More

Attorneys, Malpractice, Limitations, Malicious Prosecution Claim Against Lawyer, 1-yr Statute, CCP 340.6 CCP 335.1 and its two-year statute of limitations for malicious prosecution actions applies to a malicious prosecution action against an attorney, at least if brought by a person who is not the attorney’s client or an intended beneficiary of the client.  CCP 340.6 and its one-year limitations provision… Read More

Bankruptcy, Discharge, Recoupment of Pre-Bankruptcy Overpayment from Blameless Debtor, 2, 3 Despite the discharge injunction, a creditor may recoup pre-bankruptcy debts by offset against post-bankruptcy payments.  The equitable recoupment doctrine allows recovery of a discharged debt where the creditor and debtor share countervailing obligations that meet the logical relationship test. Under that test, obligations are logically related when they arise… Read More

A newspaper intervened in a sex discrimination action against Nike seeking to force disclosure of the sealed names of other women who had complained about sex discrimination at Nike.  Plaintiff's attorney inadvertently disclosed an unredacted version of a document to the newspaper that disclosed those sealed names.  This decision holds that since the newspaper had intervened and was thus a… Read More

Following Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003 and distinguishing and disagreeing with Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, this decision holds that a trial court must set aside a default that the defendant's attorney declares was his fault, even if a deliberately chosen, but bad, strategy rather than an inadvertent error.  Here the default… Read More

Plaintiff sued his employer.  Employer's attorney wrote confidential email to plaintiff's supervisor to inquire about facts of the case.  Supervisor sent a screen shot of the email to plaintiff.  Plaintiff's counsel properly disclosed to employer's counsel that he had received the privileged communication, but then refused employer's demands to destroy or return his copies and instead sent copies to plaintiff's… Read More

An attorney listed on a pleading as "of counsel" may be sanctioned under FRCivP 11 if the pleading otherwise satisfies the rule's requirements for a sanctions award.  Rule 11 sanctions doesn’t violate the First Amendment. Read More

In calculating the amount in controversy for a CAFA removal of a state court complaint that does not allege an amount in controversy, the defendant must provide evidence to support portions of the calculations that it is likely to be able to prove, such as the number of nonexempt employees in a wage and hour case.  However, for parts of… Read More

“A party cannot rely upon an expert’s opinion to establish duty, which is a question of law for the court.” (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1373.) Nor can a party create a triable issue of fact on the issue of duty through expert opinions, because again, the existence of a duty in a given… Read More

A securities broker does not owe non-customers a duty to post a warning on its website or report to FINRA about a third party known to be scamming potential investors by pretending to be a sale agent at the brokerage company.  The decision finds support for its holding in the line of cases holding that banks do not owe any… Read More

  Real Property, Water, Flood Waters Captured In Aquifer Are Real Property, 1, 3 Captured floodwaters stored in an aquifer under a ranch are real property, not personal property.  Hence, a deed of trust encumbering the real property also encumbered the water in the aquifer, and the water as well as the land was transferred to the buyer at the… Read More

Appeals, New Arguments On Appeal, Judgment Not Supported By Substantial Evidence, 1, 3 “Generally, points not urged in the trial court cannot be raised on appeal.  The contention that a judgment is not supported by substantial evidence, however, is an obvious exception.”  (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17.) Read More

Though the concurrence calls for a change and a footnote in the majority opinion notes many states place the burden on the defense, this decision follows other California Court of Appeal decisions in holding that as part of the plaintiff's burden in proving causation and damages in a legal malpractice action based on bungling the plaintiff's claim in the underlying… Read More

This decision affirms a $25,000 judgment for emotional distress damages by a client who alleged a breach of fiduciary duty claim against her attorney who did nothing to prosecute her claim and then with motions set for hearing the next day coerced her into signing a substitution of attorney form, allowing him to withdraw as her attorney. Read More

Following McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, this decision holds that when a judgment is reversed on appeal for lack of substantial evidence to support the judgment, the plaintiff does not get to retry the case upon remand.  Instead, judgment must be entered in favor of the defendant. Read More

Plaintiff failed to show that the commercial speech exception (CCP 426.27(b)) exempted plaintiff's suit from the Anti-SLAPP statute.  Plaintiff's claim was that Facebook had originally induced it to develop an app by stating that third party apps would be allowed to use Facebook data on its users and their friends, but three years after plaintiff developed its app, Facebook changed… Read More

Section 230 of the Communications Decency Act *47 USC 230) shields internet service providers from liability (other than for breach of contract) based on the provider's refusal to share user data with the plaintiff. Read More

Under Lab. Code 3364.5, a volunteer at a school is treated as an employee for worker's compensation purposes if the school district adopts a resolution deeming the volunteers to be employees.  This decision holds that section 3364.5 applies to all injuries suffered while acting as a school volunteer, including fatal injuries.  It also holds that the school district's resolution adequately… Read More