California Appellate Tracker

Under FRCivP 23.1, a derivative action may be maintained only by a plaintiff stockholder that can adequately and fairly represent similarly situated stockholders.  In Larson v. Dumke (9th Cir. 1990) 900 F.2d 1363, the court listed eight factors that a district court could consider in deciding whether the plaintiff was an adequate representative.  However, a district court need not consider… Read More

Defendant offered plaintiff a film role during the COVID crisis, if he would get vaccinated.  He refused.  Defendant hire another actor.  Held, the trial court erred in denying defendant’s Anti-SLAPP motion.  Defendant's casting decision was conduct in furtherance of free speech in connection with two public issues: a prominent entertainment company (1) voted with its feet in the vaccination controversy… Read More

Following Stone v. Alameda Health System (2024) 16 Cal.5th 1040, this decision holds that Labor Code 2802, which requires "employers" to reimburse employee's expenses incurred in performing their jobs, does not apply to state agencies or entities like the California State University. Read More

Although the insurer did not give plaintiff insureds notice of their right to designate a third party to receive notices regarding overdue premiums or impending terminations of their policy and 30 day notice of non-payment of the premium and impending termination of the insurance policy as required by Ins. Code 10113.71 and 10113.72, the insurer was entitled to judgment because… Read More

Gliner filed this proceeding under 28 USC 1782 to obtain discovery in California for use in his defamation action in Great Britain.  Specifically, he sought the name and contact information of the author of the article that allegedly defamed him as well as the name and contact information of the operator of the website on which the article was published. … Read More

RICO, Damages, Antecedent Personal Injury Bar to Damages Overruled, 5, 4 While RICO allows recovery only for harm to business or property, not personal injury, damages are recoverable under RICO for harm to business or property that is caused by a personal injury inflicted as part of a RICO conspiracy. Read More

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