UNFAIR COMPETITION LAW AND THE RIGHT TO A JURY TRIAL IN CIVIL MATTERS Nationwide Biweekly Administration, Inc. v. Superior Court (2020) 9 Cal.5th 279 holds that causes of action under California’s unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and California’s false advertising law (FAL) (Bus. & Prof. Code, § 17500 et seq.) shall be tried by the court rather than a jury because they are equitable in nature. More importantly,…
ZOOM VIDEO CONFERENCING, PART II Since many (but not all of you) have been involved in one or more Zoom mediations the last several weeks, I thought some helpful hints regarding that process would be welcome. Before discussing those ideas, I hope everyone is staying healthy in these difficult times. The impact of video conferencing on future legal affairs is still not known, but it’s fair to say that it has many more plusses…
VIDEO CONFERENCING The coronavirus has dramatically impacted our lives in every conceivable way – personally, medically, socially, financially, politically and legally. It is causing us to reconsider how we do everything. I write only as to a small part of the legal picture – the need for video conferencing as a replacement for in person mediations. There is a concern that video conferencing will not be as effective as meeting face-to-face with the neutral…
SPECULATIVE EXPERT TESTIMONY v. EXPERT QUALIFICATIONS Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 holds that the exclusion of speculative expert testimony is one of a trial judge’s gatekeeper functions. (Id. at pp. 771-772.) In other words, “the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture.” (Id. at p….
C.C.P. SECTION 998 OFFERS UPDATED The following appellate decisions from 2018 and 2019 concerning Code of Civil Procedure section 998 offers to compromise, an integral part of the civil settlement process, reflect many interesting subtleties, modifications and revisions to the procedure: Arbitration and 998 Offers (A 998 offer may be made after an arbitration award) Heimlich v. Shivji (2019) 7 Cal.5th 350: “We hold a request for costs under section 998 is timely if filed with the arbitrator…
TENTH ANNUAL YEAR-END REVIEW This year’s ten Mediation Messages and two Arbitration Insights covered a wide variety of subjects involving mediation, arbitration, settlement procedure, “one can never be too careful in the practice of law,” general procedures, evidence and professionalism/civility. Please refer to my website (www.marcusmediation.com) for the Mediation Messages and Arbitration Insights summarized below for a complete discussion of the subject matter. MEDIATION Mediation Message no. 151 (“Recovering Mediation Fees after Trial”) discussed Berkeley…
“THE APPROVED AS TO FORM AND CONTENT CLAUSE” The “Approved as to form and content” clause can be both innocuous or material; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781 explains the distinction. In Monster Energy, parties to a products liability and wrongful death action settled their lawsuit and, in a settlement, which included confidentiality obligations, lawyers for the parties (Schechter for the plaintiff) signed a notation that they approved the written agreement as to…
998 OFFER INVALID FOR BEING TOO EARLY AND “GAMING THE SYSTEM” Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918 provides a tutorial on early C.C.P. sec. 998 offers and, to a lesser degree, when such offers “game the system.” In Licudine, plaintiff’s minimally invasive surgery for gallbladder removal became invasive when the surgeon nicked a vein inside her abdominal cavity. Nineteen days after service of her three-page complaint on Cedars et al. for…
SANCHEZ’S HEARSAY DECISION THREE YEARS LATER People v. Sanchez (2016) 63 Cal.4th 665 holds that the hearsay rule applies to case-specific out-of-court statements considered by experts as true and accurate and relied upon to support their opinions, because such statements are being admitted for the truth. (Id. at p. 686.) “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Id. at p. 676.)…
DEFAULT MOTIONS – PROFESSIONALISM/CIVILITY – ABUSE OF DISCRETION LaSalle v. Vogel (2019) 36 Cal.App.5th 127 provides Justice William Bedsworth, writing for the Court, with a platform to talk about the big picture issue of declining civility and professionalism in the practice of law, the more immediate problem that attorneys are rushing to file default motions without first talking to opposing counsel and that, in the instant matter, before it, the trial court abused its discretion…