California Appellate Tracker

Reversing a summary judgment in defendant's favor, this decision holds that defendant cannot claim a fair use defense to plaintiff's suit for infringement of its copyright on photos of an ephemeral lake in the Death Valley desert.  All four fair use factors weighed against defendant.  Defendant used the pictures for a commercial purpose--to profit from its article that included the… Read More

Same deferential standard of review applies whether evidence presented to trial court is live testimony or written affidavits and exhibits. Read More

Following Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119 and distinguishing Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, this decision affirms a judgment confirming an arbitration award in defendant's favor.  Even though one of defendant's lawyers was unlicensed in California when he performed part of the work under… Read More

Defendant did not owe a duty of care to plaintiff to protect him from falling from a steeply slanted roof covered with broken, slippery clay roof tiles.  The roof's danger was open and obvious.  It was not foreseeable that plaintiff, who was neither required nor invited to climb on the roof, would confront that obvious danger.  He did so while… Read More

The trial court did not abuse its discretion in denying private attorney general fees to Malibu homeowners who successfully challenged a proposed special assessment to protect a beach and nearby homes from erosion.  The trial court correctly estimated the homeowners' potential benefit from the suit as the amount of assessments they sought to avoid over the 20-year period of the… Read More

Owner of a 1% interest in an LLC sued to dissolve the LLC.  Holders of less than 50% of the LLC intervened and moved for a mandatory buyout of the plaintiff's interest under Corp. Code 17707.03. By then owners of a majority of shares (including plaintiff) voted to dissolve the LLC under Corp. Code 17707.01.  This decision holds that the… Read More

Indebtedness arising from the attorney’s obligation to reimburse the State Bar for the payments made to victims of his misconduct is dischargeable in bankruptcy.  Such an indebtedness is not a penalty, fine or forfeiture payable to a governmental agency, but rather is payable to and for the benefit of the State Bar and is compensation for the Fund’s actual pecuniary… Read More

Under 9 USC 201 et seq. governing foreign arbitrations, federal courts have subject matter jurisdiction to enforce arbitrator-issued subpoenas served on US residents.  The subpoena enforcement action may be filed in any district court where venue is proper under 28 USC 1391, the general venue statute, or 9 USC 204, which allows--but does not require--suit in the district in which… Read More

Following Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, this decision holds that the Unruh Act does not prohibit disparate impact discrimination.  So, having a website that is not specially adapted to be readable by the vision-impaired is not an independent violation of the Unruh Act, even if the business is aware that its website can't be read… Read More

The district court abused its discretion in excluding testimony from defendant's sole trial witness and in imposing monetary sanctions for defendants' purported failure to properly identify the areas of testimony of the witness--who had been identified in the defendant's initial disclosures.  Even if the initial disclosures showed only that the witness would testify about the underlying lawsuit for which the… Read More

A public entity (school board) violated plaintiff's First Amendment rights by blocking him from posting on the social media (Facebook) it used to communicate with constituents about public issues.  The page was a public forum.  Blocking plaintiff from using the page altogether was an overly broad restriction of his free speech.  Less restrictive measures would serve the entity's interest in… Read More

This decision holds that Civil Code 1717 does not authorize a trial court to award attorney fees before entry of final judgment.  Here, the trial court granted summary adjudication for plaintiff on contract claims, but tort and statutory claims remained unresolved.  The summary adjudication order was not a final judgment.  It was subject to modification under the court's inherent power. … Read More

Fraud in factum, in execution or in the inception differs from promissory fraud, which is a false promise.  Fraud in execution occurs when the defendant causes the plaintiff to execute a contract that has materially different terms from those on which the parties orally agreed.  To allege a claim for fraud in execution, the plaintiff must allege facts showing the… Read More

(Plaintiff could not allege a breach of contract claim based on a letter of intent that differed from the terms of the written agreement that the parties later signed.  The letter of intent clearly indicated it was not binding but rather was a mere proposal.  See SCC Acquisitions v. Central Pacific Bank (2012) 207 Cal.App.4th 859.) Read More

The trial court in San Francisco abused its discretion in denying defendant's motion to transfer this wrongful death case to San Diego where the accident occurred and most witnesses reside.  The fact that the Legislature authorized remote trial testimony through July 2023 is not a favor that the trial court could properly invoke to ignore the fact that most witnesses… Read More

Summary judgment was properly entered for the defendant in this slip and fall accident on a public sidewalk.  The trivial defect doctrine applied to shield the city from liability.  The discontinuity between slabs of sidewalk paving over which plaintiff tripped was at most 3/4ths of an inch.  There were no other factors adding to the dangerousness of that condition.  Plaintiff… Read More

CCP 575.2 authorizes superior courts to impose sanctions for violation of local rules promulgated under CCP 575.1.  This decision holds that a court may impose sanctions under 575.2 for violation of rules governing submission of documents in preparation for trial (such as in limine motions and jury instructions) as well as for violation of pretrial rules.  It also holds that… Read More

Under Probate Code 16061.8 and 21311, as amended in 2010, a no contest clause may be enforced against a beneficiary of a will or trust if the beneficiary files a "direct contest without probable cause."  A direct contest is one that alleges the invalidity of a protected instrument or one or more of its terms, based on one or more… Read More

Under CCP 1281.97-1281.99, the party that drafted a consumer or employee arbitration agreement must pay its share of the arbitration fees within 30 days of the date they are due.  If it fails to do so, the other party is entitled to a mandatory award of attorney fees and costs related to that breach of the arbitration agreement and may… Read More

(Under CCP 128.5 and 128.7, a party moving for sanctions must serve the opposing party with the motions a full 21 days before filing the sanctions motion in court.  A sanctions motion filed on the 21st day after service does not comply.  A full 21 days must be afforded the opposing party to correct its sanctionable conduct, so the earliest… Read More