California Appellate Tracker

Though the concurrence calls for a change and a footnote in the majority opinion notes many states place the burden on the defense, this decision follows other California Court of Appeal decisions in holding that as part of the plaintiff's burden in proving causation and damages in a legal malpractice action based on bungling the plaintiff's claim in the underlying… Read More

This decision affirms a $25,000 judgment for emotional distress damages by a client who alleged a breach of fiduciary duty claim against her attorney who did nothing to prosecute her claim and then with motions set for hearing the next day coerced her into signing a substitution of attorney form, allowing him to withdraw as her attorney. Read More

Following McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, this decision holds that when a judgment is reversed on appeal for lack of substantial evidence to support the judgment, the plaintiff does not get to retry the case upon remand.  Instead, judgment must be entered in favor of the defendant. Read More

Plaintiff failed to show that the commercial speech exception (CCP 426.27(b)) exempted plaintiff's suit from the Anti-SLAPP statute.  Plaintiff's claim was that Facebook had originally induced it to develop an app by stating that third party apps would be allowed to use Facebook data on its users and their friends, but three years after plaintiff developed its app, Facebook changed… Read More

Section 230 of the Communications Decency Act *47 USC 230) shields internet service providers from liability (other than for breach of contract) based on the provider's refusal to share user data with the plaintiff. Read More

Under Lab. Code 3364.5, a volunteer at a school is treated as an employee for worker's compensation purposes if the school district adopts a resolution deeming the volunteers to be employees.  This decision holds that section 3364.5 applies to all injuries suffered while acting as a school volunteer, including fatal injuries.  It also holds that the school district's resolution adequately… Read More

A 998 offer that allowed the plaintiff to choose between two options, one of which was definite and calculable ($65,000 for a dismissal) and the other which was ambiguous (because it dealt only with categories of damages without quantifying them, thus leaving the offer dependent on post offer proof of disputed items) was sufficient to shift costs and fees in… Read More

The district court improperly excluded plaintiff's economics expert's testimony defining product markets and improperly granted SAP summary judgment on Terradata's antitrust tie-in and trade secret claims.  The expert used recognized economic methods to identify the tying and tied markets.  Terradata's evidence raised genuine issues as to whether SAP had market power in the tying market and adversely affected a not… Read More

Lis Pendens, Real Property Claim, Challenge to Trustee of Trust holding Real Property, 1, 12 Shortly before his death, 90-year-old Mancini, amended his inter vivos trust to make his caregiver, Rollins, the sole trustee and beneficiary.  Newell, Mancini's daughter and pre-amendment beneficiary, sued Rollins to invalidate the trust amendment.  Newell recorded a lis pendens on property that Rollins had purchased… Read More

Effective January 1, 2022, the Legislature amended Civil Code section 52.1 to expressly remove Government Code section 821.6 immunity as to “any peace officer or custodial officer” sued for a violation of the Bane Act.  This decision holds that the amendment is substantive, not procedural, because it removes an otherwise absolute defense to liability under the Bane Act.  Since the… Read More

Torts, Duty of Care, No Duty to Intervene in Dispute between Adjacent Homeowners or Tenants, 1, 12 A homeowners association and its real estate servicing agent owe no duty of care to intervene in a dispute between a homeowner and the tenant of an adjacent home or to report the dispute to the police or other peace officers. Read More

Unfair Competition, Unfair Practice, Disclosure of Emergency Room Charges, 1, 12 It is not unlawful or unfair for a hospital to charge for evaluation and management services (EMS) for emergency room patients in accordance with the hospital's fee schedule as disclosed on a charge-master website reference to which is clearly disclosed in the emergency room as required by California's Payers'… Read More

Under the Song-Beverly Act, Civ. Code 1793.2(d), a manufacturer must "promptly" offer to repurchase a car (or other consumer good) that it has been unable to repair to merchantable condition or to the expressly warranted condition after a reasonable number of repair attempts.  There is no set time deadline for a "prompt" offer, but 40-50 days following a demand has… Read More

The clerk's service of a signed minute order did not start the 60-day period for appealing from that order because the order was not "endorsed" filed.  The endorsement of an electronically filed document must read "Electronically filed by the Superior Court of California, County of _____, on [date].  Cal. Rules of Ct., 2.259(d)(1).  The minute order did not bear such… Read More

A PAGA claim inherently involves at least one claim of a statutory violation with respect to the named plaintiff and it may also involve claims of that and other statutory violations with respect to other employees.  Hence, if the named plaintiff has signed an enforceable arbitration clause governed by the FAA, the court must compel arbitration of the named plaintiff's… Read More

Plaintiff was the head mashgiach who ensured the kosher certification of grape products for the defendant, a non-profit corporation which is the largest certifier of kosher food products in America.  This decision holds that for purposes of the implied First Amendment "ministerial exception" to employment statutes, plaintiff was a "minister" and defendant was a religious organization.   Only an observant Orthodox… Read More

Disagreeing with Miranda v. National Emergency Services, Inc. (1995) 35 Cal.App.4th 894, this decision holds that H&S Code 1799.110’s stricter qualifications requirement for expert witnesses apply when the physician being sued was an on-call radiologist who remotely reviewed X-ray and ultrasound images for an emergency department patient on a “stat” basis as requested by the emergency department.  Only by extending… Read More

Daughter lacked authority to sign a nursing home's arbitration clause on her mother's behalf though she held a durable power of attorney from mother.  The power of attorney allowed her to make financial and health decisions for mother but specifically did not grant her authority to defend, settle or submit to arbitration claims by or against mother.  Though the arbitration… Read More

Employment, Wage & Hour, Attorney Fees and Costs, Successful De Novo Appeal After Berman Hearing, 1, 1 Labor Code 98.2(c) authorizes an attorney fee award against a party that unsuccessfully appealed from the Labor Commissioner's ruling in a Berman hearing on a wage claim.  But that statute says nothing about attorney fee awards when the appeal is successful.  Here, the… Read More

Beneficiaries of an estate sued the estate's lawyer for malpractice claiming that the lawyer negligently failed to file or advise the client to file a protective claim for a refund with the IRS which would have allowed the estate to deduct millions of dollars paid in attorney fees in prior litigation from the estate on which inheritance taxes were assessed. … Read More