The FELA (45 U.S.C. § 55) invalidates any contractual provision “the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act [FELA]." However, a release provided in settlement of a specific liability claim is enforceable. (See Callen v. Pennsylvania R. Co. (1948) 332 U.S. 625, 631.) Federal courts… Read More
Live Nation held a music festival with 65,000 attendees. Live Nation knew that illicit drug use by attendees was a significant risk and took some measures to prevent it and to provide hydration, security and medical care. This decision holds that Live Nation had a special relationship with the festival attendees and owed them a duty of care with respect… Read More
Before enactment of Civ. Code 1009(b) in 1972, an offer to dedicate private land to public use could be implied by law when the public used the land openly and continuously, as if the users believed the public had a right to do so, without objection by the landowner. This decision affirms a decision denying a claim to quiet title… Read More
Defendant's arbitration clause required arbitration of disputes "to the fullest extent permitted by law." It also contained a class action waiver. The "fullest extent" provision did not, on its face, preclude court litigation of public injunction claims, and so did not violate McGill. But in federal court. plaintiff also had to establish Article III standing to proceed on the public… Read More
Stover signed up for a credit score program with Experian in 2014, cancelling her subscription the same year. That year's clickwrap agreement, to which Stover assented, included both a broad arbitration clause encompassing all disputes “to the fullest extent permitted by law,” and a change of terms clause, stating that Stover would be bound by changed terms if she used… Read More
This decision holds that while a trial court does not lose jurisdiction to amend or vacate an interlocutory order simply because a Court of Appeal has issued an order to show cause in response to a mandate petition, the trial court should generally not do so since the Court of Appeal's issuance of an OSC rather than an alternative writ… Read More
Under CCP 446(a), a defendant must file a verified answer to a complaint filed by the state, a county or certain other governmental agencies “unless an admission of the truth of the complaint might subject the party to a criminal prosecution." This decision holds that a defendant corporation is a "party" entitled to file an unverified answer under the quoted… Read More
This decision reverses an order granting defendants equitable relief from a default and default judgment. A court’s ability to grant relief under its inherent equitable power is narrower than its ability to grant relief under CCP 473(b) Equitable relief from a default judgment may be granted only in exceptional circumstances, and the party moving for such relief must make a… Read More
The trial court properly denied the defendant employer's motion to compel arbitration of plaintiff's "standing" to bring the PAGA action he filed against the employer. Requiring plaintiff to arbitrate whether he was an “aggrieved employee” with standing to bring a representative PAGA action would require splitting that single action into two components: an arbitrable “individual” claim (i.e., whether he was… Read More
Lab. Code 432.7 prohibits an employer from asking a job applicant to disclose any conviction that has been judicially dismissed and bars an employer from using any record of a dismissed conviction as a factor in the termination of employment. Here, Premier hired plaintiff but several weeks later received a mistaken notice from the DMV saying that plaintiff had an… Read More
Following the reasoning in Dutra Group v. Batterton (2019) 139 S.Ct. 2275 and the result in Chan v. Society Expeditions, Inc. (9th Cir. 1994) 39 F.3d 1398, this decision holds that a child cannot recover damages for loss of society of a parent injured (but not killed) on the high seas while not a seaman. Neither the Jones Act nor… Read More
Though frowning on the practice, this decision holds that a judge may grant a motion for judgment on the pleadings after a demurrer on the same grounds has been overruled. If there is any impropriety in doing so, the error is harmless if the order granting the motion for judgment on the pleadings is legally correct. Accord: People v. Edward… Read More
The Federal Food, Drug and Cosmetic Act does not preempt state law requirements for dietary supplements that do not differ from those promulgated under the FDCA. So a plaintiff can bring a UCL action against a dietary supplement supplier for failing to substantiate its advertising or labeling claim about the supplement's structure or function--except that while the FDCA and FDA… Read More
Robin held a senior deed of trust. Crowell held a junior lien on the same property. Robin commenced a judicial foreclosure action against the debtor and the property but failed to name and serve Crowell as a defendnat in the suit. Some years after the judicial foreclosure sale, Robin brought this quiet title action against Crowell to "complete" the judicial… Read More
One way to prove loss causation in a securities fraud suit is to show that the defendant corporation's stock, traded in an efficient market, dropped significantly after a disclosure of information correcting the prior misrepresntations on which the plaintiff sues. The plaintiff must also show that the corrective disclosure was a substantial factor in causing the stock drop. This decision… Read More
A court, which has appointed a receiver under H&S Code 17980.7 and CCP 564 to remediate a nuisance caused by substandard housing, may, in its discretion, authorize the receiver to borrow funds to remediate the nuisance and ro give a super-priority lien in the property as security for repayment of the loan. Nothing in the language or legislative history of… Read More
Pen. Code 632 and 632.7 prohibit the recording of any part of a confidential telephone communication without consent of all parties. This decision holds that Yelp's recording only of its own sales persons' words with the sales person's violates these statutes when the other party to the call, whose words were not recorded gave no consent to the recording. It… Read More
While an insured cannot expand the scope of an existing insurance policy's coverage by waiver or estoppel, a would-be insured can rely on waiver or estoppel to show that the insurer agreed to provide the insurance despite the insured's failure to perform a condition precedent to issuance of the policy, such as submission of medical forms or, in this case,… Read More
This decision holds that the trial court properly required a party seeking a preliminary injunction under the Public Records Act (Gov. Code 6250, et seq.) to post an injunction bond under CCP 529--to support an injunction against routine destruction of older public records, some of which plaintiffs sought under the PRA. Nothing in the Public Records Act conflicted with section… Read More
After divorcing Yim, Lee filed this suit on behalf of her daughter Doe, claiming that Yim had sexually molested Doe. Lee, a lawyer, sought to represent Doe in the action. Held, the trial court did not abuse its discretion in disqualifying Lee. Under current Rule of Professional Conduct 3.7, a lawyer cannot act as an advocate "at trial" in a… Read More
