In Berkeley Cement, Inc. v. Regents of the Univ. of California (2019) 30 Cal.App.5th 1153, the court confirmed that a trial court may award mediation fees as costs, whether the mediation is court ordered or privately agreed to. In affirming the award of mediation fees as costs, Berkeley Cement noted that although mediation costs are not expressly allowable in the Code of Civil Procedure, such costs “fall within the category of costs that may be awarded in the trial court’s discretion.” (Id. at p. 1140.)
Waiver of the right to a jury trial cannot be imposed as a sanction. In a Los Angeles unlawful detainer action, the pro per tenant (who was also pro per on appeal) appeared on the trial date without complying with a Los Angeles County Superior Court Civil Division unlawful detainer standing order. The court found “defendant had waived jury by not preparing for a jury trial,” and following a court trial, judgment was entered against her and possession of the premises was awarded to plaintiff. Because the court exceeded its authority in denying defendant’s right to be tried by a jury, the judgment was reversed.
The tenant/defendant had requested the Court to continue the matter to prepare jury instructions, etc. But the Court found the defendant not credible legal reason why she was not prepared for trial.
Code of Civil Procedure section 631, subdivision (f), sets forth the exclusive grounds for a jury waiver, and failure to prepare for trial is not listed. Showing up for trial unprepared may subject a party to monetary sanctions, but it does not constitute a waiver of the right to jury, and a court has no power under these circumstances to refuse to conduct a jury trial.
Guo Zhang Chen v. Lin (Cal. App. Dep’t Super. Ct., Nov. 14, 2019, No. BV 033055) 2019 WL 6341283
Attorneys primary tool is language. How you say something is critical. Attached here is a cheat sheet of how you can think about framing and focusing your argument. Click here:
I had a case where the issue was if the work had been previously published invalidating the US copyright. This case will be very useful for showing no publication occurred if the work was only posted on a foreign website. In Moberg v 33T LLC (D Del 2009) 666 F Supp 2d 415, the district court held that a work posted on a foreign website was not “published” in the United States for purposes of 17 USC §411 and therefore did not trigger the registration requirement.
It pisses me off when companies want charge 3% or more to pay them by credit card. If you don’t want to take credit cards fine, but don’t profit from it! Elavon through Costco only charges 1.99% + 25 ¢ (for phone transactions) so don’t lie and try to make profit from a credit card transaction.
California and about 10 other states were trying to prohibit these surcharges https://oag.ca.gov/consumers/general/credit-card-surcharges
But now, starting with the US Supreme Court, surcharges will probably be allowed. (See Expressions Hair Design https://www.supremecourt.gov/opinions/16pdf/15-1391_g31i.pdf
Technically, Civil Code Section 1748.1(a) prohibits retailers from imposing a surcharge on customers who pay with a credit card, but allows them to offer discounts for cash or check.
There is a work around for merchants, under the first amendment and how this surcharge is advertised. See 9th Circuit Opinion: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/03/15-15873.pdf
In White v. Square, Inc. S249248 (August 12, 2019), the California Supreme Court held that an online business violated the Unruh Act by discriminating based upon occupation (or other protected categories of people) and the discriminated person has standing to sue even if the person did not enter into a contract for the services because he/she was in an excluded category.
“In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services,” The court’s unanimous opinion held: “We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store.”
This ruling may stir up a hornet’s nest of litigation. For example, Square also prohibits sale of occult materials, adult entertainment oriented products or services and escort services. PayPal bars the sale of “sexually oriented digital goods”; both forbid drug paraphernalia sales. Every bank refuses to process credit cards for marijuana dispensaries or persons engaged in sex work. If the occupation is legal, e.g. a state licensed cannabis dispensary or legal brothel in Nevada, that seems to be a form of occupation based discrimination.
Persons with physical handicaps also may have a cause of action as they are effectively excluded from using the services on the website. Blind community members who rely on screen-reader software cannot avail themselves of websites, apps, self-service kiosks” that are not compatible with software as well as persons with dexterity issues who may be timed out of ‘CAPTCHA’ challenge response tests.
Another issue to be decided is if no agreement is needed to be discriminated against, is the person discriminated against required under the terms of service of the web site to arbitrate binding upon the discriminated person? I don’t think so because there is no agreement! It’s good to be a lawyer 😊
The prohibition against bankruptcy lawyers was still on the Square list of prohibited business activities as of August 14, 2019.
A stipulated judgment constituted an unenforceable penalty under Civil Code §1671(b) where the stipulated judgment for $2.8 million bore no reasonable relationship to the range of actual damages the parties could have anticipated from a breach of their agreement to settle a dispute for $2.1 million. (This is established law under Ridgley v. Topa Thrift & Loan Assn. (1998) 17 Cal.4th 970, 977.
In Red & White Distribution v. Osteroid Enterprises, a stipulation provided for entry of judgment for $700,000 more than the settlement amount to be paid plus interest and attorneys’ fees. The Appellate Court held that the judgment with the additional $700,000 was an unenforceable penalty under section Civil Code 1671. There were some unusual issues in this case including the debtor alleging it had paid most of the settlement amount in gold and had a receipt.
The appellate court stated it is publishing this case to remind parties how to properly provide for an incentive for prompt payment, e.g. a carrot not a stick!
The court citing with approval Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635 at 649, that “it is permissible under section 1671 for the parties to agree to a discount for timely payment of an admitted debt. (Jade Fashion, supra, 229 Cal.App.4th at p. 649.) Thus, based on Jade Fashion, if the parties stipulate that the debt is a certain number, they may agree that it may be discharged for that number minus some amount. They may also agree that in the event the debtor does not timely make the agreed payments, a stipulated judgment may be entered for the full amount.”
Red & White Distribution v. Osteroid Enterprises – filed Aug. 9, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 3888 (B291188)
The U.S. Supreme Court just FUCT’d the Lanham Act. The Lanham Act (15 U.S.C. § 1052(a)) prohibits the registration of “immoral or scandalous” trademarks. Respondent founded a clothing line that uses the trademark FUCT. The U.S. Patent and Trademark office decided the trademark was prohibited under the Lanham Act. The U.S. Supreme Court held that the prohibition on “immoral or scandalous” trademarks was facially unconstitutional, stating: “There are a great many immoral and scandalous ideas in the world (even more than there are swear words), and the Lanham Act covers them all. It therefore violates the First Amendment.” (Iancu v. Brunetti (U.S., June 24, 2019) 2019 U.S. LEXIS 4201.)
P.S. FUCT is reportedly an acronym for “Friends U Can’t Trust”.
The day after a responsive pleading was due, plaintiff’s lawyer sent defendant a letter and an email telling her that the time to respond was past due and threatening entry of default if a responsive pleading was not filed by the next business day. When a pleading was not filed by 3:00 p.m. the next business day, plaintiff’s counsel filed a request for entry of default. Defendant quickly hired a lawyer who filed a motion to set aside the default pursuant to Code of Civil Procedure § 473, subdivision (b). The trial court denied defendant’s motion to set aside the default, despite a fact-filled declaration describing how defendant had been up to her neck taking care of urgent personal circumstances. The Court of Appeal reversed and quoted from Code of Civil Procedure § 583.130 that “. . . all parties shall cooperate in bringing the action to trial or other disposition,” and concluded: “Attorneys who do not do so are practicing in contravention of the policy of the state and menacing the future of the profession.” (LaSalle v. Vogel (Cal. App. 4th Dist., Div. 3, June 11, 2019) 36 Cal.App.5th 127.) Continue Reading Lawyer Civility Includes More Than a Pro Forma Attempt to be Civil” (LaSalle v. Vogel (2019) 36 Cal.App.5th 127.)