California Supreme Court will decide whether the “fraud exception” to the parol evidence rule permits evidence of a prior or contemporaneous representation as to the terms contained in a written agreement which are directly at variance with the terms of t

Posted by Dowling Aaron on

RiverIsland Cold Storage, Inc. v. Fresno-Madera Production Credit Association (2011) 191 Cal.App.4th 611, review granted April 20, 2011 (S190581) California’s parol evidence rule generally prohibits a party from introducing any parol evidence which varies or contradicts the terms of an integrated written agreement. (Code of Civil Procedure section 1856, subdivision (a).) Under the statutory “fraud […]

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City of Lemoore MFA Court of Appeal Decision (2010)

Posted by Dowling Aaron on

Homebuilders Association of Tulare-Kings Counties (“HBA”) challenged City of Lemoore’s adoption in late 2006 and early 2007 of Fire Protection, Police, Park Land Acquisition, Community Recreation, Municipal Facilities, and Refuse Vehicle and Container Impact Fees. HBA claimed the fees violated the Mitigation Fee Act (MFA) in identifying the use of the fee by facility type […]

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Contractor, licensed as individual, may recover for work performed even though he used varied business name

Posted by Steven Vartabedian on

Before any reader gets too excited with this caption, be aware that the California Business & Professions Code section 7031, subdivision (a) bar of compensation for contract work done by anyone other than a person or entity stated in a state-registered license is unaffected by the recent case discussed below. As I wrote in Opp […]

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Saving Appeals and Assessing the Case

Posted by Steven Vartabedian on

An appellate court can assist counsel on a discretionary basis by construing appeals from non-appealable orders. It may treat the matter as a writ petition. (Munger v. Gates (1987) 193 Cal.App.3d 1248, 1254.) It may view them as appeals from existing orders. (Vibert v. E. I. DuPont de Nemours & Co. (1995) 32 Cal.App.4th 1525, […]

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More on the question of whether an order is appealable: discovery sanctions and defaults

Posted by Steven Vartabedian on

In my June 2 blog article I discussed some general rules concerning whether a judgment is appealable. Today, the focus is on these two specific types of orders that have some tricky applications. The majority view is that discovery sanctions, regardless of amount, are not directly appealable, but are reviewable only on appeal after final […]

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Tort Claim Is Actionable As Plaintiff May Recover Damages for Reasonable Treatment of Pet Even If Animal Has No Market Value

Posted by Steven Vartabedian on

Recently, the issue of awardability of claimed medical damages against tortfeasors has been a hot appellate topic. The California Supreme Court currently has under submission the case of Howell v. Hamilton Meats concerning medical expenses incurred yet paid to the provider in a lesser sum due to downwardly negotiated collateral medical insurance benefits. (See March […]

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“Green” Labeling Does Not Mislead Reasonable Consumer to Believe Company’s Product is Environmentally Superior

Posted by Steven Vartabedian on

Protecting the environment has become a noteworthy objective for conscientious consumers. Not surprisingly, commercial producers have tapped into this market in labeling products. What does such labeling actually tell a consumer about the product? One such consumer, Ayana Hill, thought the green drop on the label of Fiji bottled water meant the product was “environmentally […]

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Loss of Consortium Need Not Be Complete Nor Must Spouse’s Injury Hurt Relationship To be Compensable

Posted by Steven Vartabedian on

Television trial dramas tend to give us the impression that the verdict in a particular case will turn on a witness blurting out an admission to a magically determinative inquiry. However the real-life experience of most trial attorneys is that a trial consists more of a mosaic of evidence from which the fact-finder endeavors to […]

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Uniform Payment for Each Car Sold Constitutes “Commission” in Determining Car- Dealer Employee is Exempt from Overtime Pay

Posted by Steven Vartabedian on

CarMax instituted a pay plan for its sales consultants designed to avoid an incentive for salespersons to push customers to higher-priced vehicles. Rather than include in the salesperson’s compensation package a percentage of the person’s total dollars of sales, it would pay the employee a fixed payment for each vehicle sold. California Labor Code section […]

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