Even though home protection contracts are regulated under a separate part of the Insurance Code (Ins. Code 12740 et seq.) and are subject to the Unfair Insurance Practices Act (Ins. Code 790.03), this decision holds that home protection contracts are sufficiently different from insurance so that the homeowner cannot state a claim against the contract issuer for tortious breach of… Read More
Disagreeing with Lafferty II and Spikener, this decision holds that "recovery" as used in the FTC Holder Rule includes only damages, not attorney fees, and so the consumer may recover unlimited attorney fees against the holder of his or her contract on claims against the dealer. The decision also concludes that the FTC 2019 interpretation of the Holder Rule's second… Read More
The trial court properly denied defendant's motion to compel arbitration. By not raising the point in the trial court, defendant waived its argument that arbitrability questions were delegated to the arbitrator. The trial court properly found that the arbitration provision was unconscionable. It was an adhesion contract, presented to the plaintiffs on a electronic tablet device which the salesman scrolled… Read More
The trial court did not abuse its discretion in awarding attorney fees against plaintiff under CCP 2033.420(a) for denying requests for admission denying factual allegations at the heart of the plaintiff's claims. Plaintiff did not bear his burden of proving that he had reasonable grounds for his denial of those requests for admission. The trial court's denial of defendant's non-suit… Read More
The trial court did not err in awarding attorney fees to defendant noteholder when it prevailed against plaintiff borrower's negligence and fraud claims that were aimed at preventing enforcement of the note and deed of trust through nonjudicial foreclosure. Even though the plaintiff pursued tort theories, the gist of the action was to prevent enforcement of the note and deed… Read More
A patient may sue a physician for negligently recommending a course of treatment if (1) that course stems from a misdiagnosis of the patient’s underlying medical condition, or (2) all reasonable physicians in the relevant medical community would agree that the probable risks of that treatment outweigh its probable benefits. The patient's informed consent to the treatment does not absolve… Read More
Under the Private Securities Litigation Reform Act, forward looking statements are not actionable if accompanied by meaningful cautionary statements, or if not made with actual knowledge of their falsity. Here, plaintiffs claimed that Tesla's stated goal of producing 5,000 Model 3 cars per week by the end of 2017 was misleading, and led to a drop in stock price once… Read More
An order dismissing a co-defendant's cross-complaint for indemnity against another defendant is appealable even if the cross-complainant remains in the case on the plaintiff's complaint. The dismissal finally resolved all claims between the two defendants and thus was a final, appealable order. Read More
Recognizing split of authority on question of whether a defendant may challenge a good faith settlement determination on appeal from a final judgment or whether the only remedy lies in a writ petition from the good faith finding, and choosing to side with those decisions allowing a challenge on appeal from a final judgment even when the appellant did not… Read More
A defendant is not aggrieved by, and so has no standing to appeal from, an order exonerating a co-defendant from liability to the plaintiff, even if the would-be appellant has a claim for contribution or indemnity against the exonerated defendant. So, in this case, one contractor at the work site where plaintiff was injured had no standing to appeal from… Read More
A probate judge has authority to enter orders or take other action necessary or proper to dispose of matters before it. (Prob. Code 12706.) Those incidental powers include the power to order parties to the proceeding to a mandatory mediation session. Here, the probate court did just that. Persons who claimed an interest in the trust but who did not… Read More
Defendant was not a state actor for purposes of 42 USC 1983 and thus could not be sued under that section when it canceled plaintiff's license to use a portion of its leased premises to present a program by a speaker that was anti-LGBT rights and thus contrary to defendant's values. Under Burton v. Wilmington Parking Auth., 365 U.S. 715,… Read More
Whitaker adequately alleged standing to bring a claim under the Americans with Disabilities Act by alleging that the counters in Tesla's showrooms were inaccessible to him (as a wheelchair-bound person) and deterred him from returning to Tesla's showrooms. However, Whitaker's complaint was properly dismissed for failure to meet Iqbal/Twombly pleading standards as it mostly repeated the statutory elements of an… Read More
The regional stay at home order banning public gatherings to avoid spread of COVID-19 which forbade restaurants from indoor or outdoor service (other than take-out or drive-thru service) did not unconstitutionally restrict the First Amendment-protected right of restaurants to present live nude adult entertainment since the health measure was applied to all restaurants regardless of whether they engaged in adult… Read More
This decision reverses a preliminary injunction against the county's implementation of COVID-19 health protocols that shut down restaurants, and particularly, those like plaintiff's restaurant that provided nude or semi-nude adult entertainment with their restaurant services. The preliminary injunction violated due process in banning all restrictions on restaurants generally, when the complaint and preliminary injunction papers were limited to First Amendment… Read More
Section 230 of the Communications Decency Act (47 USC 230) immunized Twitter from liability for suspending Murphy's account after she posted messages critical of transgender women in violation of Twitter's hateful conduct rules. Section 230 immunizes an interactive service provider, like Twitter, from any claim that would treat it as the author or publisher of content provided by another person. … Read More
Plaintiff sought to serve her petition for issuance of a Civil Harrassment injunction on the defendant by social media since she had been unable to serve him by normal means of service of process. Though it notes that some states (New York, New Jersey and Texas) have allowed service of process by social media, this decision holds that at least… Read More
Assuming the conditions subsequent in a deed to SCST were subject to the Marketable Record Title Act, they remained enforceable by injunction (but not power of termination) as equitable servitudes. (Civ. Code 885.060(c).) The trial court erred in employing the forfeiture doctrine to convert one of the conditions subsequent (which required sale of the property to Claremont at a set… Read More
A guide to nutritional supplements that professed to be neutral but was allegedly favorable to a competing manufacturer that paid it handsomely for high rankings was commercial speech, largely because the manufacturer's payments gave the guide an economic motivation (apart from merely selling guides) to make the speech. The guide also made false statements insofar as it denied plaintiff's products… Read More
An organization may have associational standing to sue on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. When… Read More
