Consumer advocates, defense attorneys, tort reformists, and trial judges are all eagerly awaiting a decision by the Ninth Circuit which all hope will clarify the process for certifying a nationwide settlement class in the Ninth Circuit. Specifically, an en banc Ninth Circuit panel will decide whether “variations in state law can defeat” predominance in class … Continue Reading
California overhauled its Rules of Professional Conduct effective November 1, 2018. This post highlights some impactful revisions for commercial litigators. However, all California lawyers should familiarize themselves with the sixty-nine new and revised rules.… Continue Reading
A recent California Court of Appeal decision highlights the narrow construction given to the commercial speech exemption of California’s anti-SLAPP statute, and the burden on plaintiffs opposing an anti-SLAPP motion on the basis of the exemption.… Continue Reading
Trying to collect attorney’s fees based on a void contract? Surprisingly, you can, according to a recent California Court of Appeal case. In California-American Water Co. v. Marina Coast Water Dist., the California Court of Appeal held that prevailing parties were entitled to recover attorney’s fees and costs based on a contract, even though the … Continue Reading
Should Titanic’s Box Office release or the debut of Harry Potter already be described as events from the ancient past? It would hardly seem so. But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements … Continue Reading
When it overturned a federal court’s order suppressing a litigant’s right to publicly gripe about a pending suit late last month, the Ninth Circuit took the opportunity to remind those of us in the legal profession that we are held to a different, higher standard when it comes to public comment on litigation. In an … Continue Reading
Last week, a federal judge in California denied the plaintiff’s motions to disqualify the defendant’s counsel, finding that the firm’s former representation of the plaintiff was not sufficiently recent, substantial, or substantively related to the firm’s current representation of the defendant to warrant disqualification. The plaintiff, IPS Group, Inc., brought two related lawsuits against Duncan … Continue Reading
When drafting settlement agreements, most lawyers give due attention to the scope of any release clause. And for good reason: for defendants, the extent to which the release protects against future litigation is critical, and for plaintiffs, the extent to which it preserves future claims may be equally critical. But lawyers – and particularly those … Continue Reading
California defendants in class actions should be wary of seeking a strategic advantage by litigating before seeking to compel arbitration. The Court of Appeal held recently in Sprunk v. Prisma LLC that a defendant in class action litigation can waive its right to seek arbitration against absent, unnamed class members by deciding not to compel … Continue Reading
When a contract awards attorneys’ fees to one party in a contract action, California Civil Code § 1717 intervenes by a) directing the attorney’s fees to the prevailing party, regardless of the party awarded fees in the contract, and b) requiring the court to fix the attorney’s fees as an element of the costs of … Continue Reading
A California Court of Appeal recently provided a reminder that under Code of Civil Procedure § 368, assignment of a right to recover money or other personal property (“a thing in action”) is subject to any defense existing at or before notice of the assignment, including defenses regarding the assignor’s corporate status. Thus, an assignee … Continue Reading
It is not uncommon for parties to enter into agreements containing jury waiver provisions. However, enforcing such provisions in California courts may be a losing battle. California has a strong public policy in favor of the right to a trial by jury, and California courts will not enforce a jury waiver except under limited circumstances. … Continue Reading
The New Year brought with it many new rule changes for federal and California courts, including in the area of electronic service and filing. A few key rules regarding requirements for electronic paperwork and service are summarized below.… Continue Reading
On December 22, 2016, a federal District Court Judge in the Northern District of California denied certification of three proposed classes of statewide consumers who purchased or leased certain Ford Fusion or Ford Focus vehicles. The plaintiffs allege that their vehicles contain defective Electronic Power Assisted Steering (“EPAS”) systems prone to sudden and premature failure … Continue Reading
The California Court of Appeal recently confirmed, in case there was any doubt, that plaintiffs must allege (and ultimately prove) actual reliance to adequately state a fraudulent prong Unfair Competition Law claim (Cal. Bus. & Prof. Code 17200). In Goonewardene v. ADP, LLC, the plaintiff brought a variety of claims related to her alleged wrongful termination, both against … Continue Reading
In September, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) announced that it had adopted amendments to the regulations governing California’s Proposition 65, which requires that businesses provide a “clear and reasonable warning” before exposing an individual to any chemicals that California has determined cause cancer or reproductive harm. Although a business can create its … Continue Reading
In Baral v. Schnitt, the California Supreme Court addressed a question that has divided California appellate courts for more than a decade: whether a special motion to strike under California’s anti-SLAPP statute (C.C.P. 425.16) can be granted with respect to a “mixed cause of action” that combines allegations concerning both protected conduct, i.e., the rights … Continue Reading
Settlement agreements often include broad general releases covering claims existing from the “beginning of the world” to the settlement date – whether the claims are known or unknown to the releasing party. And in many states, such broad releases are valid and enforceable. Indeed, it is the peace provided by such releases that often makes … Continue Reading
The California Court of Appeal recently ruled that an inspection demand under California Corporations Code section 1601 requires a corporation to make its books and records available for inspection at an office where they normally are kept, rather than at an office in California. Innes v. Diablo Controls, Inc.. Section 1601, likely familiar to most … Continue Reading
Consistent filing and service procedures will become less of an oxymoron in California – especially for those legal practitioners who appear in the state’s appellate courts. E-filing is currently not mandatory in most cases in appellate courts, but soon will be uniformly required, except for pro-se litigants. The State’s trial courts, California Superior Courts, can … Continue Reading
