Appellate Update – January 3, 2022

  1. Appellate Update
  2. Appellate Update – January 3, 2022


This is a case of first impression decided under California’s Automatic Renewal Law (ARL) (Bus. & Prof. Code §§17600 et seq.).

Notices on the “Start my trial” screens of the JustAnswer website were not sufficiently conspicuous to bind Plaintiffs.  Plaintiffs had clicked on the “Start my trial” button, which contained a hyperlink to a 26-page “Terms of Service” agreement, including an arbitration clause. The notices were less conspicuous than the statutory notice requirements of the ARL. They were not sufficiently conspicuous under other criteria courts have considered in determining whether a hyperlinked notice to terms of services is sufficient to put a user on inquiry notice of an arbitration agreement. The Fourth District, therefore, affirmed the trial court’s order denying JustAnswer’s petition to compel arbitration.

Sellers v. JustAnswer LLC, No. D077868, 2021 WL 6144075  (Dec. 30, 2021)


The First District upheld Measure AA, a local special parcel tax adopted by the voters in the City of Oakland by a majority vote. In the nonpublished portion of its opinion, Division One of the First District joined Divisions Four and Five of the First District, and with the Court of Appeal for the Fifth District, in holding that a citizen initiative imposing a special parcel tax is enacted upon a majority vote. In the published portion of its opinion, the Court further held that Measure AA could not be invalidated because ballot materials submitted in its favor stated that the measure required a 2/3 vote. The Court held that the statements did not concern the measure’s substantive features, were not alleged to be intentionally misleading, and cannot override the law governing the applicable voting threshold.

Jobs & Housing Coalition v. City of Oakland, No. A158977, 2021 WL 6142680  (Dec. 30, 2021)

COMMENT: As Justice Banke pointed out in her concurrence, the California Supreme Court held in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, Rossie v. Brown (1995) 9 Cal.4th 688, and Kennedy Wholesale, Inc. v. State Board of Equalization (1991) 53 Cal.3d 245 that citizen initiative tax measures are not subject to the supermajority vote requirements of Proposition 13 and the requirement of Proposition 218 that no general tax may be imposed unless it is approved by the voters at the next general election.

Temporary judges

The parties stipulated to appointment of a family law attorney as a temporary judge. Their stipulation authorized the temporary judge to “hear and try the above-entitled matter,” e.g., the petition for the dissolution of the parties’ marriage, “including hearing and determining all pretrial motions ….” Husband filed a request for a Domestic Violence Restraining Order (DVRO). The temporary judge heard Husband’s motion and granted a restraining order.

The Second District held that the parties’ stipulation gave the temporary judge jurisdiction to hear the DVRO because a DRVO is not an ancillary proceeding. The court held that “a request for a domestic violence restraining order, filed in a pending dissolution case, is a motion in that case. (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 37, 176 Cal.Rptr.3d 567.) Phrased otherwise, a DVRO can, as this case shows, arise out of, and may be the offspring of, or “direct progeny” of, a marital dissolution action. (Gridley, supra, 166 Cal.App. 4th at pp. 1582-1583, 83 Cal.Rptr.3d 715.) Accordingly, the parties’ stipulation authorizing Judge Johnson to hear and determine pretrial motions applies to Husband’s request for a DVRO.”

In re Marriage of Reichental, No. 2D CIVIL B307255, 2021 WL 6132701 (Dec. 29, 2021)

COMMENT: Parties may agree to appoint a private, temporary judge to resolve their disputes. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 907.) The terms of the parties’ agreement should determine the limits of the temporary judge’s jurisdiction. A private judge appointed by agreement of the parties does not have unlimited jurisdiction. Calif. Const. Art. 6, sec. 21 vests judicial authority in the State courts, not in private individuals.

Once a temporary judge has taken an oath of office pursuant to the parties’ agreement, he or she has the same authority as a regular judge, is bound by the same rules of evidence and procedures as those applicable in superior court trials and is empowered to render an appealable judgment in the same manner as a regular judge. (In re Marriage of Assemi, supra, 7 Cal.4th at 908; see also Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 818.)

A judgment is void if the court acts without fundamental authority over the subject matter, question presented, or party. (People v. Fin. Cas. & Sur., Inc. (2021) 64 Cal.App.5th 405, 414; Dolan v. Superior Court (1920) 47 Cal.App. 235, 240.) Questions of jurisdiction are never waived and may be raised for the first time on appeal. (Grados v. Shiau (2021) 63 Cal.App.5th 1042, 1050.)

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