The doctrine of primary assumption of the risk bars liability for injuries caused by a negligent surfer to a fellow surfer because those injuries were caused by risks inherent in the sport of surfing. Wipe-outs are common as are injuries from collisions with other surfers or their surf boards. Surfers often violate unwritten rules of etiquette governing surfing and surf… Read More
The trial court correctly denied defendant's motion to compel arbitration despite the agreement's delegation clause because plaintiff, a minor, disaffirmed all agreements with defendant pursuant to Family Code 6710. The disaffirmance voided not only the underlying agreement and its arbitration clause but also its delegation provision. Plaintiff's disaffirmance of any agreement with defendant was sufficient to disaffirm the delegation clause… Read More
An appellate court may affirm on any ground supported by the record (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16), including grounds not raised by the respondent, and even if the respondent does not file a brief (Fleming Distribution Co. v. Younan (2020) 49 Cal.App.5th 73, 84, fn. 8; Smith v. Smith (2012)… Read More
Website owners brought a class action against Google for displaying related items of interest including competitors' ads and uncomplimentary customer reviews along with copies of the owner's website page in response to a browser user's request to open that website page. This decision holds that the website owners have an insufficient property interest in the copy of the webpage Google… Read More
This decision holds that Jack Daniel's Properties, Inc. v. VIP Products LLC (2023) 599 U.S. 140 effectively overruled prior 9th Circuit decisions to the extent that they held the Rogers v. Grimaldi (2d Cir. 1989) 875 F.2d 994 test exempts all expressive use of trademarks from trademark law. Jack Daniel's held that the Rogers test does not apply when the… Read More
Plaintiffs alleged that Gilead was researching two alternative drugs to treat HIV and both passed Phase III trials with approximately equal effectiveness in HIV treatment but that Gilead chose to pursue the alternative that carried a risk of bone and kidney side effects instead of the alternative because doing so allowed it greater financial returns on its patent for the… Read More
Reversing a summary judgment for defendant, this decision holds that it is question of fact for the jury whether a CDCR peace officer assigned to culinary duties at a prison was acting within the scope of his employment in engaging in a high speed chase of another car on his way to work after the occupants of the other car… Read More
Under Ins. Code 11580.2(f), insured and insurer must arbitrate any dispute about whether the insured is entitled to recover damages from an uninsured motorist and the amount of those damages. The trial court erred in denying the insurer's motion to compel arbitration. The insurer did not waive arbitration by failing to pay the insured the amount that the insured claimed… Read More
CCP 340.1(q) revived sexual abuse claims for three years between 1/1/2020 and 1/1/2023. This decision holds that the revivor is part of the "statute of limitations" and thus was continued for an additional 6 months by Emergency COVID Rule 9(a). Read More
The trial court erred in giving a jury instruction in this invasion of the constitutional right of privacy case which stated unconditionally that bank customers have a reasonable expectation of privacy with respect to financial information disclosed to their bank. While a bank customer has a right to privacy of financial records, the customer does not have an unconditional expectation… Read More
Penal Code 502(c)(2) prohibits knowingly accessing and without permission taking, copying, or making use of any data from a computer, computer system, or computer network. Section 502(e)(1) grants a private right of action to an owner or lessee of the data who suffers damage from a violation of section 502(c)(2). This deciison holds that the trial court erred in giving… Read More
If a jury instruction contains “an incorrect statement of law, the party harmed by that instruction need not have objected to the instruction or proposed a correct instruction of his [or her] own in order to preserve the right to complain of the erroneous instruction on appeal." Read More
To obtain a private attorney general fee award, the applicant must show, among other things, that "the necessity and financial burden of private enforcement ... are such as to make the award appropriate." Private enforcement is a "necessity" unless a public prosecutor or other government agency stands ready to enforce the right. Here, the trial court abused its discretion in… Read More
Disagreeing with several 2d District opinions, this decision holds that the standard of review of an order granting or denying a private attorney general fee award under CCP 1021.5 is abuse of discretion even when the fee award order follows the Court of Appeal's prior opinion (published or not) in favor of the fee applicant. Though the Court of Appeal… Read More
On remand from the US Supreme Court, the Ninth Circuit applies California's governmental interest approach to conflicts of law questions. It finds a true conflict between Spanish law which allows the possessor of stolen art to acquire stronger title to the art than its predecessor in interest had by reason of the passage of the prescriptive period and California law… Read More
The Eleventh Amendment bars a federal court from exercising jurisdiction over a claim against a California superior court, which is an arm of the state government or against the judges of that court, acting in their judicial capacity. Ex parte Young, 209 U.S. 123 (1908) offers no end around the Eleventh Amendment immunity. A court cannot be sued in an… Read More
Under Gov. Code 831.8(b), the state, an irrigation district, and their employees are not liable for injuries suffered in irrigation ditches, canals, or drains used for water distribution "if at the time of the injury the person injured was using the property for any purpose other than that for which the district or state intended it to be used." This… Read More
The district court abused its discretion in denying class certification of a claim that defendant violated California labor laws by requiring employees to remain on premises during rest breaks. The evidence showed that defendant enforced that policy consistently across all its employees, making the claim suitable for class certification. However, the district court did not abuse its discretion in denying… Read More
Costs incurred in connection with setting up depositions that were eventually not taken may still be recoverable court costs under CCP 1033.5 if reasonably necessary to the prosecution or defense of the case. Here, on dismissal of the case, defendant was entitled to fees a deposition reporter charged for late cancellation of one deposition and for preparing a notice of… Read More
This decision affirms an order denying an employer's motion to compel arbitration. The arbitration provision purported to require arbitration of all disputes, but prohibit any form of representative action. Following Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, such a clause is unenforceable as to PAGA claims involving Labor Code violations not suffered by the individual plaintiff. Because the… Read More
