California Appellate Tracker

Jury Trial, Right To, Restitution, Mistake of Law, 2, 1 Under Liu v. SEC (2020) 591 U.S. 71, 79, equitable restitution may be awarded to strip a wrongdoer of its ill-gotten gains, but is limited to the wrongdoer's net profits.  Legal restitution, by contrast, is measured by the victim's loss.  Here, hoping to limit the CFPB's recovery to Cashcall's net… Read More

Contracts, Penalty, Shopping Center Lease, Co-Tenancy Clause The co-tenancy clause in this lease of a store in a shopping mall was not an unenforceable penalty under Civ. Code 1671 nor did the clause impose a forfeiture banned by Civ. Code 3275.  The co-tenancy provision allowed the tenant to drastically reduce its rent if less than 60% of the shopping center's… Read More

Real Property, Judicial Foreclosure, Valuing Non-Monetary Obligation Secured by Deed of Trust, 1, 12 When a beneficiary seeks to judicially foreclose a deed of trust that secures a non-monetary obligation, the court must value that obligation in monetary terms to determine the amount that the beneficiary may credit bid at the foreclosure sale.  In this case, the secured obligation was… Read More

Effective Jan. 1, 2021, subdivision (j) was added to Lab. Code 1102.5, providing for an award of attorney fees to an employee who prevails on a claim of retaliation.  This decision holds that the statute applies to and allows fee awards in all pending cases including those filed before Jan. 1, 2021. Read More

This decision reverses the order granting an Anti-SLAPP motion in this FDCPA and UCL class action by a student loan debtor against a collection law firm and debt buyer.  Closely following Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th  1447, the opinion finds that the suit met the three enumerated requirements of a public benefit suit under CCP 425.17(b).  It… Read More

Following Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, not Plancich v. United Parcel Service, Inc. (2011) 198 Cal.App.4th 308, this decision holds that Lab. Code 218.5 and 1194 which bar cost awards to employers who prevail against wage and hour claims precludes application of CCP 998.  The Labor Code sections are more recent and more specific and the… Read More

An amended judgment that simply adds awards of costs and attorneys fees to the original judgment does not restart the time for appealing from the original judgment or the prior interlocutory orders which led up to that judgment. Read More

The Railway Labor Act does not prohibit unions from entering into collective bargaining agreements with employers that contain terms other than those expressly allowed by the Act.  Also, the Act does not prohibit a union and employer from agreeing that employees must either pay union dues or agency fees without joining the union, or lose seniority-based bidding privileges for work… Read More

The district court properly sent plaintiff's other claims to arbitration and then, based on the arbitrator's factual findings, dismissed the Sarbanes-Oxley Act retaliation claim which it had not sent to arbitration.  The SOX Act prevents SOX claims from being subject to mandatory pre-dispute arbitration agreements. 18 U.S.C. § 1514A(e). Although an arbitrator’s decision can never preclude a SOX claim, a… Read More

Ins. Code 10113.71 and 10113.72 require insurers to give specified notice and a 60-day grace period before terminating life insurance policies for non-payment of premiums.  This decision holds that there is no private right of action directly under the statutes; the insured's only remedy is a breach of contract claim alleging breach of the impliedly incorporated statute.  To have a… Read More

The trial court did not err in denying plaintiff's motion for a new trial based on inadequate damages in this case in which the jury awarded her $36,000 in economic damages for disability discrimination.  Plaintiff suffered no physical harm, so emotional distress from the discrimination was not presumed.  There was ample evidence to show that her depression was caused by… Read More

Following Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, this decision holds that when the plaintiff files an amended complaint after expiration of the time for amendment following the sustaining of a demurrer, but before the case is dismissed, the late-filed amended complaint bars dismissal under CCP 581(f)(2) unless and until the late-filed amended complaint is stricken. Read More

FRCivP 26 allows for the recovery of reasonable expenses for the time an expert witness, whose opinions may be presented at trial, spends preparing for a deposition.  It does so even when the opponent argues that the expert's testimony is inadmissible. Read More

Federal courts exercise exclusive jurisdiction over malicious prosecution actions arising from conduct in a federal bankruptcy proceeding, and federal law preempts state law with regard to such a claim.  The malicious prosecution defendant may bring suit in federal court to vacate any state court judgment for the plaintiff in such a suit despite the Rooker-Feldman doctrine.   Read More

In the Discovery Act's sanctions chapter, CCP 2023.010 lists the types of discovery abuses the Legislature sought to preclude, and CCP 2023.030 lists the types of sanctions that can be awarded.  Contrary to the Court of Appeal's reading, this decision holds that a trial court may award sanctions under those sections for a party's pattern of discovery abuse.  The court… Read More

Communications made during visitation exchanges that have been ordered by a family court to be supervised do not meet the definition of  “confidential communications” under the first clause of Penal Code section 632(c).  Those communications are not “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” … Read More

A district judge may review an interlocutory order of a prior judge in the same case for “cogent reasons and exceptional circumstances," however, the prior judge's order should be followed unless  (1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at… Read More

The district court correctly instructed the jury regarding the presumption of intent to defraud creditors flowing from the operation of a Ponzi scheme.  The instructions properly defined a Ponzi scheme as one in which proceeds received from new investors are transferred to previous investors, thereby giving investors the impression that a legitimate profit-making opportunity exists, when it does not.  The… Read More

After Berry sued in district court, the defendants voluntarily paid her the full amount they owed her, including penalties and interest, and sought to dismiss the case as moot. Attorneys’ fees are ancillary to the underlying action, and the existence of an attorneys’ fees claim does not resuscitate an otherwise moot controversy. The panel held that Berry was not entitled… Read More

A contractor's license is automatically suspended by operation of law if the contractor fails to obtain and maintain a current and valid certificate of workers’ compensation insurance.  (Bus. & Prof. Code § 7125.)  The license may be reinstated retroactively if a certificate is obtained and filed within 90 days of the retroactive effective date of the new insurance.  (Bus. &… Read More