California Appellate Tracker

(Disagreeing with Estate of Ashlock (2020) 45 Cal.App.5th 1066, this decision holds that the penalty awardable under Probate Code 859 for a defendant's willfully withholding a decedent's property is twice the amount of the withheld property, resulting in a total recovery of three times compensatory damages.) Read More

(This decision holds that California appellate authority since DeWitt v. Western Pacific Railroad Co. (9th Cir. 1983) 719 F.2d 1448 has shown that under California law no longer supports DeWitt's holding.  Under California law, attorney fees and costs incurred in enforcing an indemnity agreement are not, as a general rule, recoverable under that agreement.  That is,  first-party attorney fees are… Read More

(A fuel technician who places fuel in a plane used for foreign and interstate commerce is a transportation worker engaged in commerce for purposes of the FAA's exemption of such workers from the FAA's provisions because such a worker plays a direct and necessary role in the free flow of goods across borders.  To fall within the exemption, there is… Read More

(The district court properly granted summary judgment to defendant employer on plaintiff's Title VII claim that he was fired in retaliation for his aiding other employees.  Plaintiff failed to raise a genuine issue that the employer's stated non-retaliatory reason for firing him was pretextual.  The mere fact that he was terminated 56 days after the last time he assisted another… Read More

(The ministerial exception applied to a work practice apprentice at defendant's Zen Buddhist center.  Even though plaintiff performed mostly menial work, the work itself was an essential component of Zen training, and he therefore played a role in carrying out the Center’s mission. Among other things, plaintiff was responsible for assisting with rituals, participating in meditations and services, cleaning the… Read More

Under the UCL and FAL, if a product’s front label is plausibly misleading to a reasonable consumer, then the court does not consider the back label at the pleadings stage.  The back label may be considered if the front label is ambiguous. Even if the front label is susceptible to two or more meanings, it is treated as unambiguous if… Read More

(The Fair Labor Standards Act (29 USC 207) does not require an employer to pay wages for work performed before or after scheduled work hours where the amount of time in question is “de minimis.” But here a genuine issue of material fact existed as to whether the time spent booting up and shutting down their computers each day outside of… Read More

Torts, Emotional Distress, Dillon Case, Contemporaneous Awareness of Injury, Not of Negligent Cause, 1, 7 Plaintiff mother sued for negligent infliction of emotional distress. She was on the telephone with her daughter while the daughter drove a car at an intersection where her vision of on-coming traffic was obscured by defendants' negligent maintenance of vegetation on adjoining property. That mother… Read More

Corporations, Limited Liability Company Can Ratify Prior Ultra Vires Acts, 1, 7 Like a corporation (see Corp. Code 119), a limited liability company may ratify acts or board resolutions that were not taken or adopted with proper authority.  Under Corp. Code 17701.05 provides that a limited liability company generally “shall have all the powers of a natural person in carrying… Read More

(Snapchat, Facebook, and Instagram are not electronic communication services (ECS) or remote computing services (RCS) for purposes of the Stored Communications Act (18 USC 2510, 2711) which prohibits ECS or RCS disclosure of stored communications even pursuant to subpoena in a criminal case.  Those websites do not just transmit messages for their subscribers or store their information for backup purposes… Read More

(Arbitration agreements signed by family members of persons admitted to elder care facilities are not binding on the persons so admitted absent evidence showing that those who signed the arbitration agreements had actual or apparent authority to act for the admittees.  The signers' statement that they had such authority is insufficient to create or evidence an agency relationship.  Nor can… Read More

(Agreeing with Moran v. Prime Healthcare Management, Inc. (2023) 94 Cal.App.5th 166 and not Torres v. Adventist Health System/West (2022) 77 Cal.App.5th 500 and Naranjo v. Doctors Medical Center of Modesto, Inc. (2023) 90 Cal.App.5th 1193, this decision holds that a plaintiff cannot state an actionable UCL or CLRA claim based on emergency room management fees charged by hospitals if… Read More

Attorneys Fees, Fee Agreement, Flat Fee Earned Only When Work Is Done, 1, 7 Under Rule of Professional Conduct 1.5, an attorney fee agreement may not provide that money paid toward fees is non-refundable or earned upon receipt unless the fee is a true retainer, properly disclosed as payment solely for the lawyer's availability to perform work for the client. … Read More

(Plaintiff enforced an important public right in its suit to enjoin the school district from implementing a COVID-19 vaccination requirement for students which was preempted by state law adopting a comprehensive statewide school immunization policy with new immunization requirements imposed only by the state Department of Public Health, not individual school districts.  The published appellate decision in the case enforced… Read More

(Fire insurance policies must be written on the statutory form that includes a one-year from inception of loss (semi-contractual) statute of limitations.  (Ins. Code 2071.)  This one-year limitations period applies only to actions on the policy to recover any claim.  This decision holds that this one-year limitations period does not apply to a UCL action seeking only declaratory and injunctive… Read More

Arbitration, Defenses To, Unconscionability, Attorney Fees to Prevailing Defendant, 1, 7 In this FEHA employment discrimination case, the court holds the employer's arbitration clause was substantively unconscionable because (1)  the clause lacked mutuality because it excluded most claims the employer would likely bring but required arbitration of most likely claims by an employee, (2) it required the employee to demand… Read More

(McKown v. Wal-Mart Stores Inc. (2002) 27 Cal.4th 219 did not create a separate exception to Privette v. Superior Court (1993) 5 Cal.4th 689 immunity for cases in which the hirer supplies unsafe equipment for use by a contractor or subcontractor.  Instead McKown is a particular application of the Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 exception for… Read More

Tait v. Commonwealth Land Title Ins. Co. (2024) 103 Cal.App.5th 271 The measure of damages against a title insurer for an owner's actual loss when there is a cloud on title is measured by the diminution in market value caused by the existence of the cloud.  Actual loss is determined by the property's highest and best use (as determined by… Read More

An employee is entitled to FMLA leave if he has “a serious health condition that makes the employee unable to perform the functions of the position.” 29 U.S.C. § 2612(a)(1)(D).  This decision holds that an employer may defend a claim by the employee by introducing evidence--other than a medical expert's opinion--to show that despite the employee's medical expert's contrary opinion,… Read More

A party seeking to vacate an arbitration award must do so by filing a petition to vacate within 100 days after service of the arbitration award or within 10 days after service by the opposing party of its petition to confirm the award.  The party seeking to vacate the award must comply with both time limits, so a response or… Read More