Borrower filed a quiet title action against the original beneficiary of her deed of trust, but didn't serve that beneficiary properly and did not nam or serve either later assignee of her deed of trust though both assignments had been recorded. After obtaining judgment and before the original beneficiary obtained an order vacating the quiet title judgment, Tsasu lent the… Read More
A court reviews a agency regulation adopted pursuant to quasi-legislative authority delegated by Congress under an arbitrary and capricious standard, requiring the regulation to be reasonable and reasonably explained. 5 USC 706(2)(A). However, judicial review is deferential. A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues… Read More
Wells Fargo's ERISA plan contained a forum selection clause, choosing the District of Minnesota, where the plan was administered. This decision holds sthat the forum selection clause is enforceable. ERISA allows a plan beneficiary three venues for bringing suit. 29 U.S.C. § 1132. Wells Fargo clause specified one of them. If Congress had meant to bar forum selection clauses in… Read More
Pen. Code 637.2 provides criminal and civil remedies against a person who "without consent of all parties to the communication, intercepts or receives and intentionally records" a phone call in which one phone is a cell phone or a cordless phone. This decision holds that the section applies to parties to the telephone call as well as to non-participants who… Read More
As a general rule, a defendant owes no duty to protect another against harm that the defendant's own act or omission has not caused. In particular, a defendant generally owes no duty of care to protect another from a third party's wrongful acts. In deciding whether an exception to that general rule applies to a particular case, the court should… Read More
To be an autodialer for TCPA purposes, a telephone device must either store phone numbers using a random or sequential number generator or produce phone numbers using such a generator. A device that stores phone numbers by some other means and then dials them is not an autodialer, and 47 USC 227(b)(1)(A) does not prohibit its use to call cell… Read More
To establish organizational standing, the plaintiff associations needed to show that the challenged conduct frustrated their organizational missions and that they diverted resources to combat that conduct. Diversion of resources happens when the plaintiffs alter their resource allocation to combat the challenged practices, but not when they go about their business as usual. Here, the evidence on defendant's Rule 12(b)(1)… Read More
In a proceeding under 9 USC 7 to enforce a subpoena that an arbitrator has issued to a non-party witness, when no federal claim is at stake, a federal court has jurisdiction over the matter only if the requirements for diversity jurisdiction (including the amount in controversy requirement) are satisfied. The amount in controversy exceeds $75,000, if the value of… Read More
Plaintiff, who suffers from PTSD, has a dog to help her cope. She could not afford to pay for formal training and certification of the dog as a service animal. She trained the dog herself. This decision holds that the Americans with Disabilities Act does not require that service animals meet certification standards before their disabled owners are entitled to… Read More
Under the Song-Beverly Warranty Act, a new car manufacturer that is unable to repair the plaintiff's new car after a reasonable number of attempts must replace it or make restitution in an amount equal to the actual price paid or payable by the buyer of the car plus incidental damages. (Civ. Code 1793.2(b)(2).) When the plaintiff has leased rather than… Read More
The Administrative Procedure Act allows only three remedies for discovery abuse in the course of an administrative proceeding. First, the requesting party may file a motion before the ALJ conducting the proceeding to compel the discovery. (Gov. Code, 11507.7(a).) Second, that party may request monetary sanctions from the supervisor ALJ, managing the regional ALJ office. (Gov. Code, 11455.30(a).) Third, the… Read More
Plaintiff sued for a violation of the Brown Open Meeting Act. The suit was timely filed, but plaintiff delayed in seeking a ruling on whether the defendant had improperly conducted a non-public meeting which might have invalidated the dissolution resolution it adopted at the meeting. Based on the resolution, defendant proceeded through the formal steps to dissolve, including holding a… Read More
Following Zehia v. Superior Court (2020) 45 Cal..App.5th 543 and distinguishing Burdick v. Superior Court (2015) 233 Cal.App.4th 8, this decision holds that California may exercise specific jurisdiction over the Canadian resident defendant. He published defamatory internet postings about plaintiff, a California resident, on an internet site run by another California resident as well as on plaintiff's internet site. The… Read More
Following Nieto v. Fresno Beverage Co., Inc. (2019) 33 Cal.App.5th 274, this decision holds that workers for a company 90% of whose business was providing "last mile" transportation of goods from Amazon warehouses to Amazon customers were employees in interstate commerce and thus exempt from the FAA. Though the workers themselves did not cross state lines, they represented the final… Read More
Plaintiff obtained an arbitration award against Adamstos which it sought to collect from Vigorous and Blue Wall as successor corporations or alter egos of Vigorous. Since the claim arose in admiralty, the court applied federal common law. Summary judgment was affirmed. Plaintiff failed to allege that Vigorous or Blue Wall received a transfer of all or substantially all Vigorous' assets… Read More
Employees of a private firm who, under the firm's contract with the district, sorted recyclables from a conveyor belt at a county sanitary district-owned facility were employed to perform "public work" to which the prevailing wage law applied. Lab. Code 1720(a)(2) defines public work to include work done for irrigation, utility and other similar districts. This work for the sanitary… Read More
In a transactional legal malpractice case arising from the defendant lawyer's advising plaintiff to enter into two marketing contracts that conflicted with each other, the plaintiff had to show only that the lawyer's negligent advice was a substantial factor in causing her loss. This she did at least sufficiently to overcome summary judgment by showing that she was considering not… Read More
Questions of fact about when Greenberg's partner stopped working for plaintiff precluded summary judgment in Greenberg's favor on statute of limitations grounds. Read More
The trial court abused its discretion in excluding an expert's opinion as to lost profits in ruling on a summary judgment motion. While most of his opinion was speculative, one part dealt with lost profits using a before-and-after method based on 16 months of actual profits earned before the allegedly harmful event. The before-and-after method is an approved way to… Read More
After a voluntary dismissal, the trial court lacks jurisdiction to adjudicate the merits of the plaintiff's claims but may still rule on ancillary matters not involving the merits, such as in this case, a motion to reconsider discovery sanctions that were issued based on the plaintiff's misleading statement of his lawyer's hourly rate without revealing that the lawyer had agreed… Read More
