A dispute between a client and an attorney over which owned the attorney fees awarded to the "prevailing party" in the underlying litigation was in the nature of a claim for specific performance of the fee agreement or for determination of ownership of property not in the plaintiff's possession, both of which were equitable claims. So there was no right… Read More
Following Flannery v. Prentice (2001) 26 Cal.4th 572, this decision holds that absent a clear provision to the contrary in the client's fee agreement with its lawyer, the attorney fees awarded to a prevailing party under Civil Code, § 3426.4 (part of the Uniform Trade Secrets Act) belong to the attorney, not the client to the extent they exceed fees… Read More
An excess insurer may not challenge an underlying insurer’s payment decision as outside the scope of coverage and thus as improperly eroding the primary insurer's coverage and prematurely triggering the excess insurer's coverage—unless there is an indication that the payments were motivated by fraud or bad faith or the excess policy contains specific language reserving the excess insurer's right to… Read More
Though the defendant did not appear and defaulted, it did not thereby waive any objection to personal jurisdiction. A trial court may and should determine its own subject matter and personal jurisdiction before entering a default judgment to assure that it is not a void decree. Here, the trial court properly gave plaintiff notice of its doubt that it had… Read More
The trial court properly dismissed this personal injury suit by a bicyclist against Orange County under Gov. Code 831.4 which provides government entities absolute immunity from suit for injuries sustained while engaged in bike riding or while on a bike trail. Plaintiff was injured when he rode his bike into a fence separating two parts of a bike trail. The… Read More
Generally, an insurance agent owes only a regular agent's duties of reasonable care, diligence, and judgment in procuring the insurance requested by an insured. However, an insurance agent may assume a greater duty to the insured when one of the following three exceptions arise: “(a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided,… Read More
Under 42 USC 12182(b), an owner violates the ADA if it fails to remove architectural barriers to handicap access in existing facilities where removal is readily achievable, or, if removal is not readily achievable, if it fails to make its goods or services available to a handicapped person through alternative methods, if they can be achieved without much difficulty or… Read More
Applying Arizona law, this decision holds: (1) An ordinary fiduciary owes no duty to warn the beneficiary about an arbitration clause in the contract between them. (2) An arbitration clause is presumed to continue to govern litigation arising from a contract even after the contract's other provisions have terminated--unless the agreement expressly or by clear implication provides otherwise. Merely including… Read More
Under Gov. Code section 12974, DFEH can seek a preliminary injunction from a court to halt what it believes is a discriminatory act or practice pending completion of DFEH's administrative proceedings. Here, DFEH sought, and the trial court denied, such an injunction. The DFEH continued its administrative proceedings thereafter until the defendants in that proceeding got the trial court to… Read More
Government Code section 12974 provides for one-way attorney fee awards in favor of the DFEH, if successful in discrimination suits it brings. That statute conflicts with CCP 1021.5 to the extent that 1021.5 would permit a successful defendant to obtain a fee award against the DFEH in a discrimination suit. Since section 12974 is the more specific statute, it prevails… Read More
An unincorporated association can sue and be sued, and so can be a "party" entitled to a private attorney general fee award if successful. When an unincorporated association represents its members in an election contest, it must show that its members live in the area affected by the outcome of the election, its members would suffer injury from an adverse… Read More
Notwithstanding United States v. Paramount Pictures (1948) 334 U.S. 131, which applied a per se test to circuit-dealing contracts in movie theaters, this decision holds that the rule of reason test applies to a non-monopoly claim of circuit-dealing contracts under the Cartwright Act. Paramount Pictures dealt with a unique market structure which has since vanished from the motion picture industry. … Read More
Moritz produced a series of Fast and Furious films for Universal. In connection with those films, Moritz entered into contracts with Universal which contained arbitration clauses requiring arbitration of disputes arising out of or related to those agreements. Some of the early films' arbitration clauses delegated arbitrability issues to the arbitrator by choosing JAMS rules. But later ones did not. … Read More
This decision dismisses an appeal as untimely. The appealed orders were issued before the COVID-19 court closures. The trial court's emergency rules treated dates during the closure as holidays, so under CCP 12a, the notice of appeal was due the next day which was not a holiday, namely, June 1, when the trial court reopened. The Court of Appeal's emergency… Read More
When the complaint does not allege facts disclosing the amount in controversy, a defendant removing the case under CAFA need only allege facts that plausibly show that the case satisfies CAFA's jurisdictional requirements, including the amount in controversy. The notice of removal need not cite evidence supporting the allegations of those jurisdictional facts. The plaintiff can challenge the notice of… Read More
The district court made a clear error as a matter of law in holding that an Uber driver was not a worker engaged in interstate commerce and thus exempt from the FAA. Though interstate transportion of people as well as goods may constitute interstate commerce for FAA purposes, the focus under the FAA is on the employer's business and whether… Read More
A signed, filed-endorsed minute order granting an Anti-SLAPP motion as to the entire complaint was a final appealable order. Plaintiff had 60 days from the date the clerk mailed a copy of the order in which to appeal. The appeal time was not extended when the trial court thereafter needlessly entered a one-page formal order granting the motion. Plaintiff's motion… Read More
Under Lab. Code 3366 civilian who assists any peace officer in active law enforcement service at the request of the peace officer's request is deemed to be a public employee as a matter of law and is entitled to workers compensation for any injury sustained while providing that assistance. However, since workers compensation is available, the person assisting the police… Read More
Following Woods v. Fox Broadcasting Sub. Inc. (2005) 129 Cal.App.4th 344 and Asahi Kasei Pharma Corp. v. Actelion, Ltd. (2013) 222 Cal.App.4th 945, not PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, this decision holds that a claim for intentional interference with (or inducing breach of) contract may be stated against any defendant that was not a party to… Read More
The Equal Access to Justice Act (28 U.S.C. § 2412(d)) does not authorize a fee award against the bankruptcy court that, sua sponte, refused to confirm movan't Chapter 13 plan because it did not state a definite end date for performance of the plan. The EAJA does not treat courts as part of the "United States" for purposes of a… Read More
