California Litigation Blog

California Litigation News & Practice Tips

Tag Archives: Articles

The Pendergrass Rule Is Dead.

Posted in Evidence
This month the California Supreme Court overruled Bank of America v. Pendergrass (1935) 4 Cal.2d 258 (Pendergrass). Seventy-five years ago, the Pendergrass court held that the fraud exception to the parol evidence rule could not be used to contradict any of a contract’s stated terms. In reversing the Pendergrass decision, the Supreme Court in Riverisland… Continue Reading

One More Reason to Settle: Courts Split over Review of Orders Approving Good Faith Settlements

Posted in Settlement
In Oak Springs Villa Homeowners Association v. Advanced Truss Systems, Inc. (2012) 206 Cal.App.4th 1304 (Oak Springs), a Court of Appeal held that a trial court’s good faith settlement determination is a non-appealable interlocutory ruling that is only reviewable by a timely petition for writ of mandate pursuant to Code of Civil Procedure § 877.6.… Continue Reading

A Plaintiff’s Right to Dismiss Is Not Absolute.

Posted in Attorneys' Fees, Contracts
A plaintiff has the right to voluntarily dismiss, with or without prejudice, all or any part of an action before the commencement of trial. Civ. Proc. § 581. A plaintiff that fears losing may simply dismiss his lawsuit to prevent the defendant from obtaining an award of contractual attorney’s fees. Civ. Code § 1717 ("[w]here… Continue Reading

Avoid Waiving Your Opposition to Evidentiary Objections.

Posted in Evidence
Must a party oppose written evidentiary objections? The recent decision of Tarle v. Kaiser Foundation Health Plan, Inc., 2012 WL 2529207, though not officially published, answers this question. The Court of Appeal in Tarle concluded that a plaintiff’s failure to oppose a defendant’s evidentiary objections to her declaration opposing defendant’s summary judgment motion waived her… Continue Reading

He Who Hesitates, May be Too Late!

Posted in Uncategorized
 In Trident Labs, Inc. v. Merrill Lynch Commercial Finance Corp., the Court of Appeal held that a party, who has the option to litigate in more than one forum and litigates extensively in one forum, cannot then decide to enforce its rights to litigate in another forum. Pursuant to a forum selection clause, Trident Labs agreed… Continue Reading

Beware of the Attorneys’ Fee Trap In Arbitration!

Posted in Arbitration, Attorneys' Fees
Did you know that the Commercial Arbitration Rules for the American Arbitration Association permit an arbitrator to award attorneys’ fees if all parties have requested such an award? Pursuant to R-43 of the Rules, the arbitration award may include "an award of attorneys’ fees if all parties have requested such an award." In other words,… Continue Reading

What To Do When You Are Sued!

Posted in Uncategorized
When you are sued, you should react just as a battleship when it comes under attack because you are under attack. Alarm bells should go off and you should immediately act to prevent or contain damage. The following actions will help protect you after you have been sued: Contact Your Insurance Company. Review all of… Continue Reading

Lis Pendens

Posted in Real Estate
The volume of real estate litigation has increased dramatically because of the depressed economy.  In times like these, it is more important than ever for real estate attorneys to be familiar with recent changes in lis pendens law. For an in-depth discussion of recent changes in California lis pendens law, you should read Lis Pendens.… Continue Reading

Spoliation as Evidence of Guilt

Posted in Discovery, Evidence, Trial
In determining what inferences to draw from the evidence against a party, the jury is permitted to consider a party’s willful suppression of evidence. Evid. Code Section 413. In Thor v. Boska (2nd Dist. 1974) 38 Cal.App.3d 558, a doctor, who was sued for malpractice, failed to produce his original charts. His explanation was that, after… Continue Reading

April 2009 Website Recommendation

Posted in Discovery, Practice Tips
In addition to doing traditional legal research, I regularly search the Internet.  One of my favorite websites is California Discovery & Privilege Law hosted by Richard E. Best, a retired San Francisco Superior Court Commissioner.  As a bench officer, Commissioner Best presided over discovery disputes for twenty years.  Commissioner Best currently serves as a private… Continue Reading