California Appellate Tracker

An employer's arbitration clause that excluded from arbitration representative claims under PAGA excluded all PAGA claims from arbitration, both "individual" claims that the plaintiff employee could assert on his own behalf and those her asserted on behalf of other employees.  The arbitration clause had been entered into before Viking River, at which point it was settled California law that all… Read More

Defendant forfeited any challenge to CACI 423 by not raising an objection to that instruction, as modified, during the court's conference with the attorneys to settle on the jury instructions and by not objecting when the court read that jury instruction to the jury. Read More

In a wrongful death action in which the jury decided only whether defendant was negligent and whether its negligence caused the plaintiff's son's death, the defendant waived any challenge to the sufficiency of the evidence by admitting in closing argument that mistakes were made. Read More

CCP 1281.98, which allows the plaintiff to opt out of arbitration if the defendant doesn't pay the arbitrator's fees within 30 days, is not preempted by the FAA.  Instead, section 1281.98 furthers the FAA's goal to require expeditious arbitration of disputes.  The statute gives the plaintiff the unilateral right to opt out of arbitration on non-payment of the arbitrator's fees. … Read More

Release, Public Policy, Gross Negligence, Summary Judgment Burdens, 1, 4 If the plaintiff in a personal injury suit alleges a gross negligence claim to avoid his pre-accident release of the defendant, the defendant in moving for summary judgment bears the burden of establishing it was not grossly negligent.  However, if the complaint alleges a simple negligence claim without mentioning the… Read More

Employment, Wage & Hour, Prospective, Revocable Waiver Of Meal Break Enforceable, 1, 4 Under Lab. Code 512, if a work shift is more than 5 but less than 6 hours long, the otherwise required meal break may be waived by mutual consent of the employer and employee.  This decision holds that so long as the employer does not coerce assent… Read More

Pensions, Suit Against Fiduciary, Transactions with Parties in Interest, Exemptions, Pleading, 5, 4 ERISA (29 USC 1106) generally prohibits pension plan trustees from causing the plan to engage in an arrangement for the furnishing of goods, services, or facilities to the plan by a party in interest.  However, 29 USC 1108 exempts from that prohibition reasonable contractual arrangements with a… Read More

Employment, Wage & Hour Regulation, PAGA, Limitations, Suit On Behalf Of Other Employees, 1, 4 A PAGA suit to collect statutory penalties is governed by CCP 340(c)'s one-year limitations period.  If that one-year limitations period has expired before the named plaintiff files suit, that plaintiff may not sue to collect statutory penalties on behalf of other employees as to whom… Read More

Jurisdiction, Personal, Internet, Invasion of Privacy of California Shoppers, Calder Test, 2, 4 Defendants operate a web-based payment processing platform offered to merchants nationwide.  Plaintiff alleged that defendants violated California's privacy laws by installing cookies on their cellphones when they purchased goods from the merchants defendants serviced.  The cookies obtained customers' personal data which defendant then sold to third parties… Read More

Admin Law, Public Records, No Class Action Allowed, 1, 4 The California Public Records Act does not allow for class actions.  Instead, Gov. Code 7923.000 et seq. allow for individual suit by the person whose request for public records has been improperly denied and do not allow one person to enforce another person's inspection rights. Read More

Fraud, False Informational Tax Return, Tax Preparer Liability, 1, 4 Recognizing a split of federal authority on the question, this decision holds that the person or entity preparing an informational tax return may be held liable under 26 USC 7434, as well as the tax return filing entity, for willfully filing a fraudulent information return (1099 or 1098 form). Read More

Contracts, Limitation of Liability, Intentional Tort< Civil Code 1668, 1, 4 This decision holds that Civil Code 1668 denies enforcement to a contractual limitation of liability clause limiting the amount and types of damage (i.e., no consequential damages or lost profits damages) insofar as the clause applied to plaintiff's claims for  intentional interference with prospective economic advantage, which the court… Read More

Arbitration, Non-Parties Compelling Arbitration, FINRA Arbitration, "Customer," 2, 4 Under FINRA Rule 12200, a "customer" of a FINRA member may commence FINRA arbitration against the member.  A “customer” under FINRA Rule 12200 includes any non-broker and non-dealer who purchases commodities or services from a FINRA member or its associated person.  Oppenheimer's "associated person" Woods ran a Ponzi scheme.  Mitchell invested… Read More

On remand from the Ninth Circuit, the district court ordered CashCall to pay $134 million in legal restitution.  The decision holds that CashCall made a knowing, voluntary waiver of its right to a jury trial of the restitution amount even though, at the time, the CFPB was arguing that its restitution claim was equitable, not legal.  CashCall was not confused about… Read More

A party moving for summary judgment bears the burden of presenting a coherent theory of why it is entitled to judgment based on the evidence it submits in support of its motion.  Here, defendant did not satisfy that burden.  Plaintiff sued it in negligence for a personal injury she suffered when she tripped on a pothole in defendant's parking lot. … Read More

Torts, Workers Comp Preemption, Employer, Home Owner, 1, 4 Under Lab. Code 3351(d) workers’ compensation exclusively covers individuals who are employed by owners or occupants of a “residential dwelling” to perform “duties [that] are incidental to the ownership, maintenance, or use of the dwelling . . . or . . . are personal and not in the course of the… Read More

Appeals, Appealable Orders, Denial of Class Certification, Leaving PAGA Claims Intact, Not Death Knell, 1, 4 Plaintiff filed individual and class wage-and-hour claims against his employer along with PAGA claims arising from the same alleged Labor Code violations.  The trial court denied class certification, but plaintiff's individual and PAGA claims remained.  Held, the order denying class certification in these circumstances… Read More

Pleading, Demurrer, Time to File, Before Hearing, 1, 4 This decision holds that the time to file a demurrer to a probate petition is governed by Probate Code 1043, not CCP 430.30, governs the time to file a demurrer to a probate petition.  Under section 1043, the demurrer may be presented at or before the hearing on the petition.  By… Read More

Release, Public Policy, Negligent Violation of Statutory Law Regarding Safety, 1, 5 This decision holds that Civ. Code 1668 makes unenforceable as against public policy a pre-accident release of claims for personal injury suffered as a result of the defendant's negligent violation of a statutory duty designed to protect public safety.  Here, a participant in a bicycle ride event was… Read More

A farmworker who could not drive and had no way to take public transportation from his home to the workplace 60 miles away was injured in an accident when the multi-passenger van driven by a coworker was involved in an accident.  This decision reverses the Worker's Comp. Appeals Bd. decision awarding the plaintiff workers compensation for his injuries.  The injury… Read More