California Appellate Tracker

Appeals, Appealable Orders, Sanctions, Uneven Division of Discovery Referee's Fees, 1, 3 A discovery referee's recommendation that his fees be allocated unevenly (in this case, all to the appellant) is not an appealable sanctions order.  Even if the uneven allocation is based on the referee's determination that the appellant's position in the discovery dispute was unjustified, a division of fees… Read More

CCP 437c(b)(3) requires a summary judgment opposition to contain a separate statement responding to the moving party's separate statement.  It also provides that failure to comply with the separate statement requirement may constitute sufficient ground, in the court's discretion, to grant the motion.  This decision affirms a summary judgment granted at least in part because plaintiff did not file a… Read More

In a liability insurer's declaratory relief action, the amount in controversy is not capped at the policy limits--if the insurer can show at least an “arguable basis,” for asserting that the amount in controversy requirement is satisfied by either the potential excess liability from the underlying claim or insurer’s anticipated future defense fees and costs in defending against the underlying… Read More

A permanent injunction may not be issued unless the plaintiff pleads and proves a case warranting that extraordinary equitable relief.  A complaint that pleads only a claim for declaratory relief is insufficient to support the issuance of a permanent injunction.  And proof sufficient for declaratory relief does not automatically entitle the plaintiff to a permanent injunction.  That is true even… Read More

This decision holds that attorney Kim is collaterally estopped by a judgment against his client Central Korean Evangelical Church which held that Kim's lien on the church property for payment of his attorney fees was invalid and voiding it to permit sale of the property to close.  Kim was not just the lawyer for Central Korean but also had a… Read More

To obtain equitable relief from a default judgment based on extrinsic mistake, the defendant must show a meritorious defense, a satisfactory excuse for not presenting the defense in a timely manner, and diligence in seeking to set aside default once discovered.  This decision holds that the trial court did not abuse its discretion in finding all three of these requirements… Read More

Under the Elder Abuse Act (W&I Code 15657.03), a representative (trustee, attorney-in-fact, or other representative) may seek and obtain a restraining order to prevent another from unduly influencing an elder adult without first having to prove that the elder adult lacks mental capacity or competence.  In this case, substantial evidence supported the trial court's finding that Herren had unduly influenced… Read More

On a prior appeal, the Court of Appeal had held that a plaintiff in his own PAGA suit may intervene in another plaintiff's PAGA action against the same employer to challenge the fairness of the settlement.  On remand, the trial court approved a somewhat modified PAGA settlement over Moniz's objection.  She appealed again.  This time, the Court of Appeal holds… Read More

Appeals, Notice to Attorney General, UCL, False Claims Act, 1, 2 Like B&P Code 17209, Gov. Code 12656 requires notice to the Attorney General of any appeal involving the California False Claims Act, or in section 17209's case, the UCL.  Following Californians for Population Stabilization v. Hewlett-Packard Co. (1997) 58 Cal.App.4th 273, 283, this decision holds that service of the… Read More

The California False Claims Act's anti-retaliation section (Gov. Code 12653) does not apply to governmental agencies, like a county, just as the rest of the act's substantive provisions do not apply to governmental agencies.  By contrast, H&S Code 1278.5, which bans retaliation against whistleblowers in health facilities does apply to government agencies that run those facilities since the statute includes… Read More

Settlement, 998 Offer, Shifts Costs If Case Later Settles For Less Than Rejected Offer, 1, 3 CCP 998 applies when the parties settle after a 998 offer is rejected or the time for accepting it expires, if the case later settles for an amount less than the amount of the unaccepted 998 offer--at least when the eventual settlement fully resolves… Read More

The county and its social workers are immune from liability under Gov. Code 820.2, the discretionary decision immunity provision, for alleged failure to investigate plaintiff's complaints that she was being sexually molested in foster homes while a ward of the county welfare agency.   Read More

Plaintiff insured admitted that its insurance policy required an appraisal if the insured and insurer disagreed about the amount of a covered loss.  This suit was filed before the appraisal occurred and was properly dismissed on the ground that any alleged injury was, at that point, too speculative to create an actionable claim or confer Article III standing. Read More

Arbitration, Mass Arbitration, Consolidation of Similar Arbitrations, Judicial Review, 2, 2 The same law firm filed 7,300 separate, but identical arbitration demands by Starz customers who claimed Starz violated Civ. Code 1799.3 by sharing their names and the films they viewed with other internet companies.  JAMS consolidated the customers' cases since they all involved the same legal and factual issues… Read More

Torts, Workers Comp Preemption, Maritime Law, Club Employee As amended in 1984, the Longshoremen’s and Harbor Workers’ Compensation Act excepted from the definition of "employee" "individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet," whether for-profit or not-for-profit, so long as the individuals are covered by a state worker's compensation scheme.  (33 U.S.C. § 902(3)(B).)  This… Read More

Probate, Heirship Petition by Trustee of Testamentary Trust, Prob. Code 11700, 1, 2 Under Probate Code 11700, “any person claiming to be ... entitled to distribution of a share of the estate, may file a petition for a court determination of the persons entitled to distribution of the decedent’s estate."  The trustee of a testamentary trust is entitled to receive… Read More

The decision reverses a summary judgment for the defendant doctor in a medical malpractice case.  The motion was based primarily on a medical expert's declaration stating that the defendant doctor had not performed the operation negligently and a subsequent bile leak was caused by a different medical procedure by a different doctor.  However, the expert declaration stated only those conclusions… Read More

Judgment, Setting Aside, FRCivP 60, Voluntary Dismissal Without Prejudice, 5, 2 An FRCivP 60(b) motion may be brought to obtain relief from a voluntary dismissal without prejudice under FRCivP 41(a).  Voluntary dismissal is a final determination of a proceeding.  Hence, falls within the scope of FRCivP 60(b)'s words allowing relief "from a final judgment, order, or proceeding".  Also Rule 60(b)… Read More

The district court correctly denied the defendant's motion to compel arbitration.  The arbitration agreement was part of the terms of use provisions of the defendant's website through which plaintiff joined defendant's gym subscription service.  However, the website's enrollment pages did not require the subscriber to view the terms of use or affirmatively agree to be bound by them.  The first… Read More

Consumer Protection, Debt Collection, Pay-to-Pay Fees Are Unfair Debt Collection Practice, 2, 2 Pay-to-pay fees, that is convenience fees a debt collector charges for use of speedy means of payment, such as pay by phone or online payment are an unfair debt collection practice violating 15 USC 1692f(1) because the fees are not expressly authorized by the agreement creating the… Read More