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This decision reverses a judgment for fraudulent concealment of an alleged defect in a car because there was no substantial evidence that before the plaintiff bought the car (thus allegedly relying on the concealment) the defendant knew of the alleged defect and that it was unable or unwilling to fix it.  However, the decision also affirms the judgment for plaintiff… Read More

When an employer’s no-fault absenteeism policy provides that an employee may clear absences that otherwise would count for purposes of disciplinary action by working (or being available to work) during a certain clearance period, the employer does not violate the California Family Rights Act (Gov. Code 12945.2) by extending the absence clearance period by the number of days the employee… Read More

Once the attorney-client privilege has been established, the trial judge or counsel for any party may not comment on the fact that a party or witness has exercised the privilege.  (Evid. Code 913(a).)  Moreover, the trier of fact may not draw any inference from a witness’s invocation of a privilege.  The court must so instruct the jury upon request.  (Ibid.)… Read More

Applying Semtek Internat. Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, this decision holds that a federal district court's dismissal of a 42 USC 1983 claim on the ground it was precluded by the res judicata effect of a state administrative decision denying her claim is not a final judgment entitled to claim preclusive effect under federal common law. … Read More

Federal common law governs the effect of a federal court's judgment on federal law claims (Taylor v. Sturgell (2008) 553 U.S. 880, 891) whereas state law governs the res judicata effect of a federal court's judgment on state law claims when exercising diversity jurisdiction (Semtek Internat. Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, 507).  It is unclear which… Read More

A preliminary injunction properly issued to require Uber and Lyft to stop misclassifying their drivers as independent contractors.  Under the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 and AB5 (Lab. Code 2775), one who provides labor or services for pay is presumed to be an employee unless the hiring entity proves all… Read More

When a government entity sues and seeks a preliminary injunction to halt violation of a statute, it need only show a reasonable probability of success on the merits, and then a rebuttable presumption arises that public harm from the violation outweighs harm to the defendant from the injunction. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63.)  To overcome… Read More

Defendant, a vision insurance provider, terminated plaintiff, an optometrist, for using unapproved lens suppliers for defendant's patients.  Defendant's network doctor agreement provided for a two-step review process of disputes, including those over termination under these circumstances.  The first step was review by a three-member panel, the second step was arbitration.  This decision holds that this two-step process does not violate… Read More

Plaintiff was injured while working on a rescue boat owned by defendant.  Plaintiff did not file a timely government claim within 6 months of his injury, but did file a timely application for permission to present a late claim, within one year of the injury.  Defendant's response to the application stated that it had denied plaintiff's claim, not his application,… Read More

Ocwen, a mortgage loan servicer, periodically reviewed credit reports of borrowers who had received bankruptcy discharges of personal liabiity on debts secured deeds of trust on their homes.  This decision holds that Ocwen did not violate the Fair Credit Reporting Act by doing so.  Ocwen had a permissible pupose in trying to determine whether the borrowers qualified for an alternative… Read More

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