Under the Dodd-Frank Act, 12 U. S. C.§ 25b(b)(1)(B), the National Bank Act preempts state law, as applied to a national bank, only if (a) the state law discriminates in favor of state banks and against national banks, or (b) “prevents or significantly interferes with the exercise by the national bank of its powers,” the standard articulated in Barnett Bank… Read More
Unless it has actual knowledge of a vendor's employee's propensity to engage in such conduct, a regional center administering services for developmentally disabled persons does not owe a duty of care to the "consumer" of those services to protect the consumer from the vendor's employee's sexual assault and hence cannot be held liable for such an assault. Even though the… Read More
Although the interplay between CCP 664.6's two sentences is not entirely clear, this decision holds that if a settlement is entered into before the court and a motion to enforce the settlement is brought while the action is still pending, the court retains jurisdiction to rule on the motion to enforce the settlement even if the parties have not agreed… Read More
The trial court abused its discretion in denying ex-wife's application to renew a DVRO injunction against ex-husband without properly evaluating the three factors set out in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275: The factual predicate for the original DVRO. Any significant change in circumstances that occurred after the DVRO was issued. Whether, and how much, the DVRO burdens the… Read More
Describing but not resolving several areas of ambiguity and conflicting authority in applying H&S Code 1799.110, this decision holds instead that a nurse anesthetist and trauma unit nurse lacked the specialized knowledge required to opine on the standard of care applicable to an intensive care unit neurosurgeon deciding whether a severe traumatic brain injury requires immediate surgical intervention, whether that… Read More
A judge's ruling on an application by a plaintiff over 40 years old for permission to sue for childhood sexual abuse under CCP 340.1(e), (h), and (m) is not a determination of a contested issue of fact and so does not prevent the later served defendant from exercising a 170.6 challenge against the judge who ruled on the application. Read More
This decision affirms an order denying enforcement of the arbitration clause in USC's employment contract on the ground that it is unconscionable in applying to any dispute (whether or not arising from the employment relationship), in being of perpetual duration (providing that it continued in effect after termination of employment unless both parties agreed otherwise), and lacking mutuality in requiring… Read More
Courts, not arbitrators, must decide which of two contracts between the same parties--one with, the other without an arbitration clause--governs a particular dispute. This is true even when the arbitration clause in the one contract containing it has a strong delegation clause, leaving to the arbitrator all arbitrability questions. Here, Coinbase had a basic customer agreement with an arbitration clause… Read More
Although a stipulated judgment is generally not appealable, appeal is allowed when “consent was merely given to facilitate an appeal following adverse determination of a critical issue.” An “adverse determination” of “a critical issue” is not an affirmative requirement or limitation on the doctrine. The only limitation is that the judgment must dispose of all causes of action. The stipulated… Read More
The actual or potential presence of COVID-19 on an insured’s premises generally does not constitute direct physical loss or damage to property within the meaning of a commercial property insurance policy under California law. Direct physical loss or damage to property requires a distinct, demonstrable, physical alteration to property. Any alternation of the premises due to the adherence of COVID-19… Read More
When an employer modifies its employment policy to require employees to arbitrate their disputes and clearly communicates to employees that continued employment will constitute assent to an arbitration agreement, the employees will generally be bound by the agreement if they continue to work for the employer. However, that is not true if, as in this case, an employee promptly rejects… Read More
Following Belyea v. GreenSky, Inc. (N.D. Cal. 2022) 637 F.Supp.3d 745, 756, this decision holds that the FAA preempts CCP 1281.97 (which requires a finding of material breach and waiver of arbitration if the party compelling arbitration doesn't pay arbitration fees within 30 days) because that section treats arbitration agreements and performance under them less favorably than other types of… Read More
An order withdrawing a case from arbitration for the defendant's failure to pay arbitration fees within 30 days under CCP 1281.97 is the functional equivalent of an order denying a motion to compel arbitration and so is an appealable order. Read More
That a corporation's person most qualified attests to the documents does not mean that they are therefore automatically admissible under the business records exception to the hearsay rule. To invoke that exception, a witness must testify from personal knowledge as to the mode of preparation of the documents, among other things. That the person is most qualified to respond to… Read More
In Kesner v. Superior Court (2016) 1 Cal.5th 1132, the Supreme Court held that an employer owes a duty of care to only the members of the employee's household to avoid secondary exposure to asbestos. This decision holds that the same household limitation does not restrict a manufacturer's strict liability for design defects or failures to warn regarding its asbestos-containing… Read More
Monetary sanctions for discovery abuse may include attorney fees and costs that the prevailing party incurred in the meet-and-confer sessions (or any mediation or other settlement effort) undertaken before the motion to compel was filed but may not include fees or costs incurred during a mediation session held after the motion was fully briefed and awaiting oral argument. Read More
The trial court properly sustained a demurrer to this employee's FEHA claims against the district for failure to comply with the Government Claims Act. Even if substantial compliance were allowed, the alleged facts showed no substantial compliance. Plaintiff's complaints were filed with the wrong entities and did not state the facts needed in a proper government claim. A second claim… Read More
Even when an arbitration agreement contains a broad delegation clause, the court must first determine whether the parties entered into the arbitration agreement. Plaintiff who challenges the authenticity of his signature on the arbitration agreement needn't prove it is not authentic but must submit sufficient facts to create a disputed issue of fact, thus shifting the burden back to the… Read More
This decision affirms a judgment for the plaintiff in an age discrimination and harassment case, rejecting all of the employer's many arguments. First, the suit was timely even though the harassment had been on-going for many years. There was no showing that the harassment had achieved "permanence" so as to prevent continued accrual from renewed harassment. Permanence comes from employer… Read More
A CCP 170.6 challenge to a judge may generally be made at any time before a trial or hearing. The master calendar exception does not apply when a party is informed of the reassignment of the case to a different judge by a clerk's email or telephone message because the party cannot immediately respond to the new judicial assignment by… Read More
