The FDCPA's bona fide error defense does not allow debt collectors to avoid liability by contractually obligating creditor-clients to provide accurate information, nor by requesting that creditor-clients provide notice of any errors in an account assigned for collection without waiting to receive a response to the request before instituting collection efforts. Read More
Under Nev. Rev. Stat. 116.3116, a homeowner's association is allowed a superpriority lien for certain HOA dues and maintenance expenses. This decision holds that the statute does not offend the US Constitution's Takings Clause since no governmental entity takes the value of liens subordinated to the HOA's superpriority lien. It also holds that the statutory notice of foreclosure sent by… Read More
In Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, the Supreme Court held that in the employment context, Bus. & Prof. Code 16600 is to be strictly enforced, prohibiting enforcement of any noncompetition clause except in circumstances that are exempted by B & P Code 16601, 16602 or 16602.5. However, this case holds that outside the employment context, and… Read More
Plaintiffs alleged that defendant had agreed to cremate plaintiff's two dogs individually, but sent them random ashes rather than those of their dogs. Plaintiffs sought to recover for the emotional distress they suffered as a result. Held: Plaintiffs didn't state a breach of contract claim as their vet, not they, had contracted with defendant, but on remand plaintiffs should be… Read More
The complaint in this case adequately alleged loss causation based on a stock price drop after the New York Post ran an article about BofI revealing, based on information it obtained through FOIA requests, that the SEC was investigated BofI for money laundering. The article was close enough to a contradiction of BofI's denial of knowledge of any investigation. The… Read More
In a poorly lawyered case, this decision affirms an order denying a motion to compel arbitration, holding that the trial court properly held the arbitration clause was unconscionable. It was procedurally unconscionable because it was a form contract presented to the patient only moments before the laser hair removal operation in a large stack of other paper she didn't have… Read More
In reaction to San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, the Legisalture amended CCP 128.5 to require in subdivision (f) that the court first find a motion, complaint or other filing to be frvolous under subdivision (a) and then not award sanctions until after a 21-day safe harbor as under CCP 128.7. This… Read More
This decision affirms a $22,000 sanction imposed on plaintiff's counsel under CCP 128.7 for bringing a frivolous motion to lift the stay pending arbitration. The AAA had misapplied the defendant's arbitration fee and then closed the arbitration. When notified of its error, the AAA acknowledged that it had received the fee payment and said it would reopen the arbitration if… Read More
The trial court did not abuse its discretion under CCP 389 in concluding that residents of a mobile home park were necessary parties to the park owner's mandamus proceeding against the Santa Cruz County's rent control board. Before that board, the residents had opposed the park owner's application for a rent increase, even presenting expert testimony regarding the owner's claimed… Read More
Landowners could not invoke Civil Code 836 recreational use immunity to bar a personal injury action by a minor female who was injured riding her motorcycle on the landowners' motocross track because the landowners' 18-year old son who lived with them had invited the plaintiff onto the property to use the motocross track. When a child of the landowner is… Read More
The Song-Beverly Warranty Act requires new car manufacturers to provide restitution of the purchase price to the buyer of a defective car. (Civ. Code 1793.2(d)(2)(B).) This decision holds that if the buyer sells the defective car or trades it in on another car from a third party car dealer, the amount that the manufacturer must pay the buyer is reduced… Read More
This decision holds that CCP 351, which tolls the statute of limitations while the defendant is absent from the state, is unconstiturional as violative of the dorman Commerce Clause insofar as it tolls the statute of limitations on claims against a defendant who was a California resident when the claim accrued, but later moved permanently out of state. Here, plaintiff… Read More
This decision reverses the trial court's denial of defendant's motion to set aside a default judgment and the underlying default under CCP 473.5 and for extrinsic mistake or fraud. Plaintiff lent to defendant's CEO, who without authority pledged defendant's assets as collateral for the loan, which he invested in a Ghanaian scam. Plaintiff filed suit against the CEO and defendant,… Read More
Lawyer's appeal from a contempt citation is dismissed as contempt orders are not appealable; they may only be challenged by a writ petition. Lawyer's appeal from a sanctions order over $5,000 is appealable, but the sanctions order is affirmed. A lawyer owes a court a duty of candor. Here, the lawyer filed a motion to enforce a settlement. He received… Read More
The federal Wiretap Act provides a civil cause of action to any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of 18 U.S.C. §§ 2510–2523. (18 U.S.C. § 2520(a).) Under § 2520(e), the action must be brought no later than two years after the date upon which the claimant first has a reasonable… Read More
When the parties agree to a general reference under CCP 638, unless their agreement provides otherwise, the trial court must enter judgment in accordance with the referee's decision once it is filed with the court. However, following entry of judgment, the court may review the referee's legal conclusions on a party's motion for new trial or to vacate the judgment. … Read More
The district court correctly abstained on Younger v. Harris grounds and dismissed this suit which sought to enjoin the Hawaii Attorney General from proceeding with a state court suit under Hawaii's UDAP statute for deceptively marketing Plavix by concealing the fact that Asians and Pacific Islanders have a genetic modification that impairs the drug's function. The state court suit was… Read More
State Farm's 998 offer was valid and enforceable to shift costs in this case. The signature block contained a space for signature by the attorney for the HOA, which was sufficient to identify the party in the signature line for acceptance. Also, the 998 offer's requirement of signature on a settlement agreement releasing all claims " arising from, relating or… Read More
Under Labor Code 92(f), a forum selection clause in an employment contract is invalid and unenforceable if the contract was "“entered into, modified, or extended on or after January 1, 2017." This decision holds that any modification of the employment contract after January 1, 2017 triggers the application of section 925, even if the modification did not affect the forum… Read More
Wastewater collection workers employed by the city to clean its sewers were not transportation workers governed by IWC Wage Order No. 7 even though their work required them to drive commercial vehicles to clean and pump out sewers and transport refuse to collection locations. So sanitation workers are not entitled to the meal and rest breaks mandated by Wage Order… Read More
