California Appellate Tracker

  If a lawyer enters into a business deal with a client in violation of Rule of Professional Conduct 3-300 (i.e., without fair and reasonable terms, disclosed in writing, advice that client may seek independent legal advice, and client consent in writing) there is a presumption that the attorney exercised undue influence over the client, rendering the transaction voidable by… Read More

 The district court erred in requiring an employer to prove by clear and convincing evidence that an employee fell within the outside salesman exemption from the FLSA's minimum wage requirements.  The statute is silent as to the standard of proof for exemptions.  So the ordinary civil standard of proof by a preponderance of the evidence applies.  More stringent standards of… Read More

Plaintiffs were injured at a nightclub shooting that occurred during a rap concert featuring performers from rival gangs.  Plaintiffs sued the nightclub's owner on claims for negligence per se and strict liability on an ultrahazardous activity theory.  This opinion affirms summary judgment for defendants on both claims.  The defendants’ alleged violation of certain provisions of a conditional use permit to… Read More

Under Gov. Code 66412.6, a subdivision of fewer than five parcels made before 1972 is conclusively presumed to have been lawfully created.  For this purpose, it is not enough to show that a subdivision map was created or recorded.  The lots must also have been conveyed separately from adjoining land.  Thus, in this case, an old conveyance (and later deeds)… Read More

While voluntary abandonment of claims may be treated as a voluntary dismissal under CCP 1717(b)(2), allowing no prevailing party, the plaintiff must affirmatively demonstrate an intent to abandon the claims to obtain this treatment.  Here, plaintiff did not formally abandon its equitable claims but simply didn't ask for an advisory jury verdict on them and then didn't seek the judge's… Read More

The employer bears the burden of proof on the issue of whether an employee falls within one of the exemptions to the FLSA. This decision holds that the employer need only meet the ordinary proof by a preponderance of the evidence standard.  When, as here, the statute is silent as to the standard of proof, the common, default preponderance standard… Read More

Jurisdiction, Federal Supplemental Jurisdiction, Voluntary Amendment Eliminating Federal Claim, 5, 1 When the district court has federal question jurisdiction due to a federal claim alleged in the complaint, a voluntary amendment by the plaintiff which deletes the federal claim also deprives the district court of federal question jurisdiction and therefore also of supplementary jurisdiction over any state law claims under… Read More

Defendant, a Washington resident, was not subject to specific personal jurisdiction in California.  All of defendant's contacts with California arose from plaintiffs' efforts to invest in defendant's non-California companies.  Defendant had not attempted to solicit investments from Californians. Read More

California can exercise specific jurisdiction over Audi, AG, the German manufacturer of Audi cars, under a stream-of-commerce theory because Audi, through its distributor VWGoA, intentionally placed its vehicles into the regular flow of commerce to the United States, including to California.  Audi markets its products through VWGoA, which has agreed to serve as a sales agent in the United States,… Read More

It is well-settled that “a written trial court ruling has no precedential value.”  (Bolanos v. Super. Ct. (2008) 169 Cal.App.4th 744, 761 [denying petitioner’s request for judicial notice of a minute order issued by a trial court in an unrelated case and finding the request improper]. Read More

Pleading, Demurrer, Leave to Amend, Insufficient Voluntary Amendment After First Demurrer Filed, 1, Plaintiff amended his original complaint after defendant filed its first demurrer in which it raised the same substantive arguments, and did not cure any of these defects at that time.  We view plaintiff’s election not to cure these defects previously, and his failure to articulate a potentially… Read More

Defendant was a life or disability insurer not a health care service plan provider; hence it was regulated by the Insurance Commissioner under the Insurance Code, not the Commissioner of Corporations under the Knox-Keene Knox-Keene Act.  Plaintiff emergency medical servicer provider therefore had no claim based on defendant's failure to pay for plaintiff's services at the rate set by the… Read More

After termination of a commercial lease, the lessee did not move out, as the lease required, but continued to send the landlord the same monthly rent as had been due under the lease.  Held, under Civ. Code 1945, the landlord's acceptance and deposit of the post-termination rent checks is presumed to evidence an agreement to renew the lease on a… Read More

In applying the primary assumption of the risk doctrine in sports cases, it is the injury-producing conduct or condition that must be shown to be an inherent risk of the sport--not the particular illness or medical condition which results from encountering that risk.  Thus, in this football case, it was the inherent risk of hits to the head which made… Read More

Following Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, this decision affirms summary judgments in favor of the companies that owned the parking lot around the 49ers' stadium and provided security there on game days.  One fan punched the plaintiff twice in the face, dropping him to the ground and seriously injuring him, in response to plaintiff's having kicked… Read More

Although defendant may have violated Civ. Code 2923.6 initially by recording a notice of sale before expiration of the time for plaintiff to appeal from defendant's denial of plaintiff's application for a loan modification, defendant cured the error and rendered it immaterial by waiting 18 months after it denied plaintiff's appeal to file another notice of sale under which it… Read More

The trial court prejudicially erred in denying defendant's request for jury instructions on Privette and its exceptions.  There was conflicting evidence regarding whether the Hooker exception applied in this case due to defendant's retaining control over some aspects of plant safety for some period of time before the accident which killed the worker whose heirs brought this action.  Defendant was… Read More

This sexual harassment/race discrimination in employment case was initially dismissed as untimely, but that disposition was ultimately reversed by the California Supreme Court.  On remand, the trial judge found plaintiff was the prevailing party and awarded plaintiff more than $500,000 in attorney fees.  Defendant appealed, then shortly before trial settled all other aspects of the case.  The trial court erred… Read More

CACI 471 allows two different standard of care instructions for injuries caused by sports instructors.  One option allows liability only for intentional injury or reckless conduct outside the ordinary range of activity in teaching the sport.  This standard applies when the instructor is accused of urging the plaintiff to engage in a sports activity without adequate instruction or beyond the… Read More

Federal courts follow a two-step process in setting the amount of legal restitution.  First, the plaintiff “bears the burden of proving that the amount it seeks in restitution reasonably approximates the defendant’s unjust gains", which it can do by showing defendant's net revenues.  If plaintiff satisfies that burden, then “the burden shifts to the defendant to demonstrate that the net… Read More