California Appellate Tracker

(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

The mere fact that plaintiff's suit was filed in retaliation for an earlier claim against the plaintiff by the defendant does not make the plaintiff's suit a SLAPP subject to a special motion to strike under CCP 425.16.  Instead, whether it is a SLAPP depends on whether the defendant's earlier claim (or other protected activity) forms a basis for the… Read More

Under CCP 1281.4, a court may stay an action in court pending arbitration “of a controversy which is an issue involved” in the action.  This decision holds that the statute does not apply unless the court has ordered parties in the judicial action to arbitration, the arbitrable issue arises in the pending court action, and the parties in the arbitration… Read More

Under Fed. R. Civ. P. 4(k)(2), a plaintiff may establish personal jurisdiction over a foreign defendant by (a) alleging a federal law claim against the defendant, (b) showing that the defendant is not subject to personal jurisdiction in any state, and (c) showing that exercise of jurisdiction over the defendant is consistent with due process, considering the defendant's contacts with… Read More

A PAGA claim is not the same cause of action as an employee's individual claim for damages for an employer's violation of wage and hour laws.  Also, the parties to the two suits are different.  Though the same employee brings both, the real party in interest in the PAGA suit is the State of California.  Accordingly, an employee may bring… Read More

Agreeing with Switzer v. Wood (2019) 35 Cal.App.5th 116, this decision holds that Penal Code 496(c)  authorizes an award of treble damages and attorney fees whenever the plaintiff proves any type of theft—whether it be fraud, misrepresentation, conversion, or breach of fiduciary duty—by which the defendant obtains money or property. Read More

A defaulted defendant (or in this case, one against whom terminating discovery sanctions had been entered) may, nevertheless, move for a new trial on the ground that the court made an “error in law” in calculating damages.  Even a defaulting defendant may appeal the resulting default judgment on the grounds that the damages award (1) “is so disproportionate to the… Read More

The trial court abused its discretion in disqualifying plaintiff's counsel from all phases of the case shortly before trial on the ground that he would be a witness at trial.  The trial court erroneously failed to apply California Rule of Professional Conduct 3.7(3), which unlike the ABA rule from which it is drawn, allows an attorney to also testify with… Read More

Four individuals protested the Golden Gate racetrack's allegedly improper treatment of race horses by sneaking onto the track, linking their arms by PVC pipes and lying across the track in a manner that prevented the racetrack from holding races.  The racetrack owner sued the four individuals for trespass and intentional interference with prospective economic advantage, naming Direct Action as an… Read More

The trial court erred in granting the defendant attorney summary judgment on statute of limitations grounds since there was a triable issue of fact as to when his representation of the plaintiff was terminated--either slightly more or slightly less than a year before the malpractice action was filed.  There was no formal withdrawal until less than a year before suit. … Read More

Under IWC Wage Order no. 7, an employer must "provide" a seat to covered clerical employees, unless work requirements preclude work while seated.  This decision holds that except for the most obvious cases (such as where the employer has a seat at work station) whether the employer has "provided" a seat raises a question of fact that precludes summary judgment… Read More

To obtain a right to attach order, the plaintiff must prove it is more likely than not that the plaintiff will obtain a judgment against the defendant on the claim on which it seeks an attachment, and that claim must be either a claim for money based on contract or a claim for elder abuse. (CCP 481.190, 483.010; Welf. &… Read More

The FAA applies to an arbitration agreement between defendant, a paratransit provider, and plaintiff, one of its drivers.  Though plaintiff was not an employer "in" interstate commerce since he drove only local, in-state routes not necessarily connected to airports or other modes of interstate commerce, his employer  provided paratransit services mandated by the ADA.  Plaintiff was hired to and did… Read More

Reasoning that Kirkeby v. Superior Court (2004) 33 Cal.4th 642 impliedly overruled BGJ Associates v. Superior Court (1999) 75 Cal.App.4th 952, this decision holds that when a plaintiff seeks to impose a constructive trust on specific property so as to become (again) the owner of that property wrongfully taken from him, the action "affects title to real property" sufficiently so… Read More

Google sent emails to contributors to Google Maps stating that they could "unlock" benefits like a free terabyte of storage by making further contributions to Google Maps as Local Guides.  This decision holds that the emails did not constitute enforceable unilateral offers of a terabyte of storage because the emails did not say how much content the offerees had to… Read More

Petrella v. Metro-Goldwin-Mayer, Inc. (2014) 134 S.Ct. 1962 did not abrogate the rule that the 3-year statute of limitations for copyright infringement in modified by the discovery to allow suit within 3 years of the date when the plaintiff first knew or reasonably should have known of the infringement. Read More

A judgment is not one "on the merits" entitled to claim or issue preclusive effect if the appeal from the judgment is dismissed solely on the ground that the appeal is moot due to post-judgment events--such as, in this case, completion of the development project that allegedly violated zoning of CEQA requirements.  See also Coalition for a Sustainable Future in… Read More

Plaintiff, a jewelry store, stated a viable breach of contract action against Sotheby's.  Plaintiff owned $4 million in diamonds which it had obtained from Rechnitz as security for his debt.  Plaintiff and Rechnitz met with a Sotheby's agent, giving him the diamonds to have appraised for possible auction at Sotheby's.  Sotheby's form contract referred to only a single consignor, but… Read More

Plaintiff sued insurer #1, claiming it owed a duty to defend him against a suit by a conservation land trust that he had violated the trust's conservation easement over his land by various development activities he undertook on the property.  That suit resulted in a judgment for the insurer, affirmed on appeal, denying coverage on the ground that the suit… Read More

Plaintiff leased a commercial property from defendant.  The lease gave plaintiff an option to buy the property at its fair market value.  Plaintiff exercised the option but the parties disagreed about the fair market value.  After much litigation, the trial court set the price and ordered the parties to perform, but before they could  do so, the Department of Transportation… Read More