A party who prevailed at trial is generally not aggrieved by the judgment and should not file an appeal or cross-appeal. Moreover, the trial court’s ruling on a motion for non-suit is not an appealable order. In its appellate briefing, a responding party who did not prevail in a motion for nonsuit at trial can […]
The two truisms of taking discovery of the other party’s private financial information: Relevance alone is not enough to compel disclosure; and, courts must engage in balancing in deciding what financial discovery to allow. “[W]hen a discovery request seeks information implicating the constitutional right of privacy, to order discovery simply upon a showing that the
CAL CIV PRO — DISCOVERY AND FINANCIAL PRIVACY Read More »
An agent is one who represents another, called the principal, in dealings with third persons. (Civ. Code, § 2295.) In California, an agency is either actual or ostensible. (Civ. Code, § 2298.) An agency is actual when the agent is really employed by the principal. (Civ. Code, § 2299.) Actual authority is such as a
AGENCY — A REFRESHER ON PRINCIPLES OF AGENCY Read More »
For various reasons, a defendant may make successive CCP 998 offers during the pre-trial phase of litigation. If the matter goes to trial and plaintiff does not obtain an outcome greater than the first or second 998 Offer, is the defendant entitled to costs from the date of the first CCP 998 Offer? Answer: Yes.
CCP 998 – WHEN DEFENDANT MAKES SUCCESSIVE 998 OFFERS Read More »
Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. Bucar v. Ahmad (2016) 244 Cal.App.4th 175, 189. Section 128.7 was adopted to apply rule 11 of the Federal Rules of Civil Procedure, as amended in 1993,
CCP 128.7 – CALIFORNIA’S VERSION OF FRCP 11 Read More »
Once an amended complaint is filed, it supersedes all prior complaints. State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130. In other words, after an amended complaint is filed, the original pleading “ceases to have any effect either as a pleading or as a basis for judgment.” Consequently, “the filing of an
AMENDED PLEADING SUPERSEDES PRIOR PLEADING Read More »
The Federal Arbitration Act (FAA) governs arbitration in written contracts involving interstate commerce. The party asserting FAA preemption has the burden to present evidence establishing a contract affecting interstate commerce. However, Section 1 of the FAA provides a limited exemption from the law’s coverage to “contracts of employment of seamen, railroad employees, or any other
FAA – FAA INCLUDES LIMITED EXCEPTION FOR TRANSPORTATION WORKERS Read More »
California law allows lawsuits against unnamed defendants (the “John Doe” or “Doe” defendant) if the plaintiff doesn’t know the real defendant’s identity when the lawsuit is originally filed. Once the identity is discovered, the lawsuit can be amended to include the real name, and this amendment relates back to the original filing date. The question
CAL CCP 474 — THE DOE AMENDMENT AND RELATION BACK FOR PURPOSES OF SOL Read More »
A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole; (2) The health of the party is such
CIVIL PROCEDURE – TRIAL PRIORITY BASED ON PARTY’S AGE NOT MANDATORY Read More »
A lawsuit is often brought against a primary defendant, but names other defendants who may be vicariously liable on theories like agency or conspiracy. If the primary defendant signed an arbitration agreement and has the right to compel arbitration, the non-signatories may have a similar right. JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222,
ARBITRATION — THE RIGHT OF NON-SIGNATORIES TO COMPEL ARBITRATION Read More »