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Appellate Court Update for December 2023


Last month, in DeLeon v. Juanita’s Foods (2022) 85 Cal.App.5th 740, the Second District held that a party’s failure to timely pay its arbitration fees was a material breach of the parties’ arbitration agreement. This month, the Sixth District chimes in with its own decision, affirming a trial court’s order removing a case from arbitration for a party’s failure to pay arbitration fees, and resuming litigation in the Superior Court. The Sixth District held that it was not up to the arbitrator to determine the party’s default. In the past, it has been common for a corporate party to compel arbitration and then, after the court orders the case to arbitration and stays the Superior Court proceeding, fail to initiate the arbitration proceeding, thereby shifting the burden onto the party who opposed arbitration. Although much more work remains to be done, these two decisions are welcome efforts by the Court of Appeal to address widespread and ongoing abuse of California’s system of private judging. Williams v. West Coast Hospitals, Inc., case no. H049177

Sixth Appellate District

December 23, 2022

Personal injury/products liability

Producers of baby and personal products containing asbestos continue to face consequences of the use of asbestos in its talcum powder. In this case, the plaintiff used J&J Baby Powder as a child, and later, Colgate’s Cashmere Bouquet. In 2018, she was diagnosed with mesothelioma. A jury returned a verdict in her favor and defendants appealed. The First District upheld the judgment, holding that the evidence was sufficient to support a finding of fraudulent concealment.

Bader v. Johnson & Johnson, case no. A158868

First Appellate District

December 23, 2022

Family law/sanctions

It is not uncommon for judges frustrated with a party in a family law proceeding to assess sanctions against that party pursuant to Family Code §271. It is uncommon for appellate courts to overturn sanctions orders, however, because appellate courts rely heavily on the trial court’s own observations, exercise of discretion, and control of the courtroom. The decision in this case provides much-needed guidance about sanctionable behavior. In this case, the trial judge sanctioned Mother for her controlling “mindset.” The Court of Appeal held that only a party’s conduct, not a party’s state of mind, is sanctionable. Furthermore, Mother’s stated concern that the trial judge was biased was not sanctionable conduct. Mother’s requests in earlier proceedings and her request that meetings between the parties be videotaped which the judge had encouraged, were also not sanctionable conduct.

Featherstone v. Martinez, case no. B316280

Second Appellate District

December 21, 2022

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