The Court of Appeal for the Second District of California affirmed an order denying class certification in a wage and hour litigation, holding that the plaintiffs’ proposed anonymous, double-blind survey and statistical sampling failed to address individualized issues for liability and damages. In so ruling, the Appellate Court held that the plaintiffs’ trial plan was unmanageable and unfair because, among other things, the proposed survey deprived the defendants of the ability to cross-examine the witnesses and to assert defenses. A copy of the opinion in McCleery v. Allstate Insurance Company is available at: Link to Opinion. In this putative class…
Posts tagged as “California”
Disagreeing with contrary rulings from the First and Sixth Districts, the California Court of Appeal for the Second District recently affirmed a trial court’s ruling that no duty of care is owed to a borrower during contract negotiations for a mortgage loan modification. A copy of the opinion in Sheen v. Wells Fargo Bank, N.A. is available at: Link to Opinion. In 1998, the plaintiff borrower obtained a $500,000 loan secured by a deed of trust (the “first loan”). The first loan is not at issue. In 2005, the borrower obtained two junior loans from the defendant bank in the amounts $167,820 (the…
The Court of Appeal for the Fourth District of California recently held that a trustee conducting a non-judicial foreclosure is not subject to tort liability unless it violated duties established by the deed of trust and governing statutes, or if the trustee has effectively taken on a different or modified duty by its actions. A copy of the opinion in Citrus El Dorado, LLC v. Chicago Title Company is available at: Link to Opinion. A commercial developer purchased real property and obtained a loan to fund construction. The loan was secured by a deed of trust on the property. The lender…
The Court of Appeal for the Second District of California held that California’s fee shifting statue in California Civil Code § 1717 permitted a former loan servicer and foreclosure trustee to recover their attorneys’ fees authorized by the contract, even though the deed of trust was assigned to another financial institution. However, the Court vacated the trial court’s award of attorneys’ fees against the borrower because the deed of trust only permitted attorneys’ fees to be added to the loan balance. A copy of the opinion in Chacker v. JPMorgan Chase Bank, N.A. is available at: Link to Opinion. The borrower…
On June 28, California passed into law the California Consumer Privacy Act of 2018, which becomes operative on Jan. 1, 2020. As with the EU’s General Data Protection Regulation, the Privacy Act gives consumers greater control over the use and sharing of their personal information. The Privacy Act allows a consumer to request that a business disclose: the categories and specific pieces of personal information that it collects about the consumer; the categories of sources from which that information is collected; the business purposes for collecting or selling the information; the categories of third parties with which the information is…
The California Court of Appeal, Fourth District, recently reversed summary judgment awarded in favor of the defendant based on violations of the California Invasion of Privacy Act, which prohibits the recording of confidential communications without the knowledge or consent of the other party, and the intentional recording of communications using a cellular or cordless telephone. In so ruling, the Appellate Court held that the defendant could not establish that it lacked the requisite intent to violate the Privacy Act, because the defendant’s full-time “always on” recording system recorded all calls on the company phones regardless of whether the calls were…
The California Supreme Court recently held that unnamed class members do not become parties of record under Cal. Code of Civil Procedure section 902, with the right to appeal the class settlement, judgment or attorney fees award, unless they formally intervene in the class litigation before the action is final. A copy of the opinion in Hernandez v. Restoration Hardware, Inc. is available at: Link to Opinion. In 2008, the plaintiff filed a class action law suit against the defendant, alleging the furniture company committed numerous violations of the California Song-Beverly Credit Card Act, Cal. Civ. Code § 1747, et seq.,…
The Court of Appeal of California, First District, recently concluded that if two deeds of trust are submitted at the same time for recording, the order in which they are indexed is not determinative of priority. Instead, according to the Court, the intent of the parties will determine priority. In this case, one originating lender extended two loans secured by the same real estate, and it was apparent that the expectation was that the larger mortgage loan would have priority. The trial court had held that the defendant was the senior lienholder even though the defendant’s mortgage was indexed after…
The Court of Appeal of California, First District, recently held that an assignee of the original beneficiary of a deed of trust, as the current holder of an obligation, has the right under California Civil Code § 2941(b)(6) to prove damages against the title company that allegedly recorded a release of the deed of trust in error. A copy of the opinion in SMS Financial XXIII, LLC v. Cornerstone Title Company is available at: Link to Opinion. In 2004, a bank made a business loan to an investment company. The loan was guaranteed by the investment company’s principals (“guarantors”) and secured…
The California Court of Appeal for the Second District recently held that a correction offer under the California Consumer Legal Remedies Act did not prevent a consumer from pursuing causes of action for fraud and violation of the California Unfair Competition Law based on the same conduct because the CLRA’s remedies are cumulative and non-exhaustive. A copy of the opinion in Flores v. Southcoast Automotive Liquidators, Inc. is available at: Link to Opinion. An automotive dealer published print advertisements showing low prices for specific cars to attract customers to the dealership. Small print at the bottom of the advertisements stated that the…
The California Court of Appeal for the First District recently affirmed an order denying class certification because the plaintiff did not present evidence to demonstrate how putative class members can be identified from the defendant’s records. A copy of the opinion in Noel v. Thrifty Payless, Inc. is available at: Link to Opinion. In July 2013, the plaintiff purchased an inflatable kids pool from a retail vendor. The plaintiff based his decision to purchase the pool on the pool’s packaging, which showed a photograph of a group of three adults and two children sitting and playing in the pool. The plaintiff…
The California Court of Appeal for the Fourth District recently affirmed an order denying class certification in a declaratory relief action because the plaintiff failed to establish ascertainability, predominance and superiority. In so ruling, the Appellate Court held that California Code of Civil Procedure section 382 did not have an equivalent to Rule 23(b)(1)(A) or (b)(2) of the Federal Rules of Civil Procedure, and that the federal rule provided less onerous requirements for declaratory or injunctive relief actions than for damages. A copy of the opinion in Hefczyc v. Rady Children’s Hospital-San Diego is available at: Link to Opinion. In November…