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Author Name William N. Hebert
Peter Vestal
769 Pages  
Published date 2017
ISBN no. 978-1-62881-243-5
eBook ISBN no. 978-1-62881-244-2
Condition New
 
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Title
About This Book
About the Contributors
About the Editors
Chapter 1: Corporations
1-1 FORMATION AND PRELIMINARY ISSUES
1-1:1 Promoters
1-1:2 Formation
1-1:3 Articles of Incorporation
1-1:4 Close Corporations
1-1:5 Corporate Existence by Estoppel
1-1:6 Law Governing Internal Affairs
1-2 OFFICERS AND DIRECTORS
1-2:1 Fiduciary Duties
1-2:2 The Business Judgment Rule
1-2:3 Director’s Reliance On Others
1-2:4 Interested Transactions
1-2:5 Appointment and Removal of Directors
1-2:6 Indemnification of Officers and Directors
1-3 SHAREHOLDERS
1-3:1 Shareholder Meetings and Voting
1-3:1.1 Types of Shareholder Meetings
1-3:1.2 Remedies for Corporation’s Failure To Hold Proper Meetings
1-3:1.3 Shareholder Action at a Meeting
1-3:1.4 Notice Required For Shareholder Meetings
1-3:1.5 Shareholder Consent In Lieu of Meeting
1-3:2 Shareholder Liability To Other Shareholders
1-3:3 Distributions, Dividends and Redemptions
1-3:3.1 Definitions
1-3:3.2 When Distributions May Be Made
1-3:3.3 Liability For Improper Distributions
1-3:3.4 Dividends
1-3:3.5 Redemptions
1-4 CORPORATE BOOKS AND RECORDS
1-4:1 Obligation To Maintain
1-4:2 Shareholder Inspection Demands
1-4:3 Director Inspection Demands
1-5 DERIVATIVE SUITS
1-5:1 General Principles
1-5:2 Direct vs. Derivative Claims
1-5:3 Requirements for Pleading and Proof
1-5:4 Attorney’s Fees and Security
1-6 THIRD PARTY LITIGATION
1-6:1 Preliminary Considerations
1-6:2 Alter Ego Doctrine
1-6:2.1 General Principles
1-6:2.2 Pleading and Proof
1-6:2.2a Unity of Interest

1-6:2.2a(1) Inadequate Capitalization

1-6:2.2a(2) Commingling

1-6:2.2a(3) Disregard of Corporate Formalities

1-6:2.2a(4) Representations to Creditors

1-6:2.2b Bad Faith/Fraud
1-6:2.3 Application to Particular Situations
1-6:2.4 Defenses to the Alter Ego Doctrine
1-7 APPOINTMENT OF A RECEIVER
1-7:1 General Principles
1-7:2 Grounds for Appointment
1-7:3 Procedure for Seeking Appointment
1-7:4 Identity of Receiver
1-7:5 Powers of Receivers
1-7:6 Duties of Receivers
1-7:7 Compensation of Receivers
1-7:8 Sale of Receivership Property
1-7:9 Removal of a Receiver
1-7:10 Actions By and Against a Receiver
1-8 REORGANIZATIONS AND SALES OF ASSETS
1-8:1 Merger Reorganizations
1-8:2 Exchange Reorganizations
1-8:3 Sale-of-Assets Reorganizations
1-8:4 Short-Form Mergers
1-8:5 Conversion Rights
1-8:6 Dissenters’ Rights
1-8:6.1 Right to Cash Purchase
1-8:6.2 Eligibility
1-8:6.3 Notice of Buyout Price for Dissenting Shares
1-8:6.4 Litigation to Enforce Dissenters’ Rights
1-8:6.5 Exclusive Remedy
1-8:7 Sales of Assets Other Than Reorganizations
1-9 DISSOLUTION
1-9:1 Voluntary Dissolution
1-9:2 Involuntary Dissolution
1-9:2.1 Eligibility
1-9:2.2 Grounds for Involuntary Dissolution
1-9:3 Winding Up and Liquidation
1-9:3.1 Payment of Corporate Creditors
1-9:3.2 Distributions to Shareholders
1-9:4 Buyout Option to Avoid Dissolution
1-9:4.1 General Principles
1-9:4.2 Invoking the Buyout Option
1-9:4.3 The Appraisal Process
1-9:4.4 Fair Value
1-9:5 Corporate Existence After Dissolution
Chapter 2: Limited Liability Companies
2-1 INTRODUCTION
2-1:1 The History and Purpose of the Limited Liability Company
2-1:2 The Doctrine of Limited Liability
2-1:3 Management and Governance
2-1:3.1 Member-Managed LLCs
2-1:3.2 Manager-Managed LLCs
2-1:3.3 Formation
2-2 GOVERNING LAW
2-2:1 The California Revised Uniform Limited Liability Company Act
2-2:1.1 Applicability of the Revised Act
2-2:1.2 Applicability of California Law to LLCs Under the Revised Act
2-2:1.3 Material Changes Wrought by the Revised Act
2-2:1.4 Interpreting the Revised Act
2-2:2 Residual Applicability of the 1994 Act
2-2:3 The Operating Agreement
2-2:3.1 Constraints on the Operating Agreement
2-2:4 Delaware LLC Law
2-3 MEMBERS’ RIGHTS
2-3:1 Member Meetings and Voting Rights
2-3:2 Business Records
2-3:2.1 Types of Records an LLC Must Maintain
2-3:2.2 Information Rights
2-3:2.3 Inspection Rights
2-3:2.4 LLCs with More than 35 Members
2-3:2.5 Tax Information
2-3:2.6 Enforcement of Information and Inspection Rights
2-3:3 Removal and Replacement of Managers
2-3:4 Distributions
2-4 MEMBER AND MANAGER LIABILITY
2-4:1 Fiduciary Duties and Standards of Conduct in Member-Managed LLCs
2-4:2 Fiduciary Duties and Standards of Conduct in Manager-Managed LLCs
2-4:3 Modification of Fiduciary Duties, Liability and Standards of Conduct
2-4:3.1 Modification of the Duty of Loyalty
2-4:3.2 Modification of the Duty of Care
2-4:3.3 Modification of the Obligation of Good Faith and Fair Dealing
2-4:4 Derivative Action Required if Injury Was to LLC
2-4:5 Reimbursement, Indemnification and Insurance
2-4:6 Allocation of Profits and Losses for Tax Purposes
2-4:7 Potential Liability of Nonmanaging Members
2-4:7.1 Failure to Fund
2-4:7.2 Contractual Stalemates
2-4:8 Arbitration
2-4:9 Attorney-Client Privilege
2-5 LIABILITY TO THIRD PARTIES
2-5:1 Contractual Liability of Members to Third Parties
2-5:2 Tort Liability of Members and Managers to Third Parties
2-5:3 Liability for Federal and State Violations
2-5:4 Liability for Improper Distributions
2-5:5 Liability for Misleading Statements Intended to Affect Market Value
2-5:6 Alter Ego Doctrine
2-5:7 Charging Orders
2-6 LLCs IN THE COURTS
2-6:1 Jurisdictional Issues
2-6:1.1 Diversity Jurisdiction
2-6:1.2 Personal Jurisdiction
2-6:1.3 Subject Matter Jurisdiction and Choice of Forum
2-6:2 Capacity to Sue and Defend
2-6:2.1 LLCs May Not Represent Themselves in Court
2-6:2.2 Suspended LLCs
2-6:2.3 Dissolved LLCs
2-6:2.4 Standing of LLCs to Sue Members
2-6:3 Causes of Action by Members Against Other Members and Managers
2-6:4 Class Action by a Member
2-6:5 Causes of Action by Third Parties Against an LLC
2-7 DISSOCIATION
2-7:1 Voluntary Dissociation
2-7:2 Passive Dissociation
2-7:3 Forcible Dissociation
2-7:4 Rights of Dissociated Member
2-8 DISSOLUTION AND WINDING UP
2-8:1 Events Causing Dissolution
2-8:1.1 Voluntary Dissolution
2-8:1.2 Judicial Dissolution
2-8:1.2a Grounds for Judicial Dissolution
2-8:1.2b Avoiding Judicial Dissolution

2-8:1.2b(1) Valuation

2-8:1.2b(2) Appraisal

2-8:1.2b(3) Judicial Decree for Purchase or Dissolution

2-8:1.3 Dissolution Due to Lack of Members
2-8:1.4 De Facto Dissolution
2-8:2 Certificate of Dissolution
2-8:3 Certificate of Continuation
2-8:4 Winding Up
2-8:4.1 Persons Authorized to Wind Up the LLC
2-8:4.2 Winding Up Upon Judicial Decree
2-8:4.3 Compensation for Winding Up Services
2-8:4.4 Providing for Debts and Liabilities
2-8:4.5 Distribution of Assets
2-8:5 Cancellation of Articles of Organization
2-8:6 Continuation of the LLC for Specified Purposes
2-8:7 Postdissolution Liabilities of the LLC and its Members
2-8:7.1 Return of Distributions by Members to Satisfy Claims Against the LLC
2-8:7.2 Action for Contribution by Members Against Managers and Other Members
2-8:7.3 Member Liability for Unpaid Taxes of the LLC
2-8:7.4 Expiration of Claims Against the LLC and its Members
2-8:7.5 Procedure for Bringing an Action after Dissolution
2-8:7.6 Service of Process on a Dissolved LLC
2-9 CONVERSIONS AND MERGERS
2-9:1 Conversions
2-9:2 Mergers
2-9:3 Dissenters’ Rights
2-10 FOREIGN LLCs
2-10:1 Obtaining Authority to Do Business in California
2-10:2 Doing Business Without a Certificate of Registration
2-10:3 The Internal Affairs Doctrine
2-10:4 Using a Series LLC in a Non-Series State
2-10:5 Forfeiture of Right to Do Business in California
2-10:6 Cancellation of Registration
Chapter 3: Partnerships
3-1 FORMATION
3-1:1 Governing Law
3-1:2 Formation of Partnership
3-1:3 The Partnership Agreement
3-1:4 Statutory Provisions That Control Regardless of Partnership Agreement
3-2 LIABILITY AMONG PARTNERS
3-2:1 Fiduciary Duties
3-2:1.1 Fiduciary Duties
3-2:1.2 Duty of Loyalty
3-2:1.3 Duty of Care
3-2:2 Partners’ Rights and Interest in the Partnership
3-2:3 Partnership vs. Personal Property
3-2:4 Suits Among Partners
3-2:4.1 Types of Litigation Among Partners
3-2:4.2 Remedies in Suits Among Partners
3-2:5 Dissociation
3-2:6 Dissolution
3-2:6.1 Fiduciary Duty of Partners Upon Dissolution
3-2:6.2 Special Rule for Law Firm Partnerships Involving Unfinished Business
3-3 LIABILITY TO THIRD PARTIES
3-3:1 Liability for Tortious Acts Of Partners
3-3:2 Liability for Breach of Contract
3-3:3 Ratification
3-3:4 Proving the Existence of a Partnership
3-3:5 Partnership by Estoppel
3-3:6 New Partners
3-3:7 Withdrawing Partners
3-3:8 Liability to Third Parties Upon Dissolution
3-4 LIMITED LIABILITY PARTNERSHIPS
3-4:1 Formation
3-4:2 Governing Law
3-4:3 Special Requirements
3-4:4 Eligibility
3-4:5 Liability to Third Parties
3-5 LIMITED PARTNERSHIPS
3-5:1 Formation
3-5:2 Governing Law
3-5:3 Rights and Liabilities of General Partners
3-5:4 Rights and Liabilities of Limited Partners
3-5:5 Serving as Both a General and a Limited Partner
3-5:6 Actions by Partners Involving the Partnership
3-5:7 Profits, Losses and Distributions
3-5:8 Dissociation and Withdrawal
3-5:9 Dissolution
Chapter 4: Securities Fraud
4-1 INTRODUCTION TO CALIFORNIA’S STATUTORY SCHEME
4-1:1 Brief Overview of the Law
4-1:2 Forum Selection
4-1:3 Definition of “Security”
4-2 MARKET MANIPULATION (CALIFORNIA CORPORATIONS CODE SECTION 25400)
4-2:1 Jurisdiction
4-2:2 Prohibited Acts
4-2:2.1 Wash Sales or Matched Orders
4-2:2.2 Tipster Sheets
4-2:2.3 Trading Activity Employed for the Purpose of Manipulating the Market Price of a Security
4-2:2.4 Misrepresentations Employed for the Purpose of Manipulating the Market Price of a Security
4-2:3 Defenses
4-2:3.1 Limitations Period
4-2:4 Pleading Standard
4-2:5 Who Can Be Liable?
4-2:6 Scope of Liability
4-2:7 Remedy
4-3 FALSE OR MISLEADING STATEMENTS (CALIFORNIA CORPORATIONS CODE SECTION 25401)
4-3:1 Jurisdiction
4-3:2 Elements of a Section 25401(b) Claim
4-3:2.1 Misleading Statement or Omission
4-3:2.2 A Material Fact
4-3:3 Pleading Standard
4-3:4 Affirmative Defenses
4-3:4.1 Plaintiff’s Knowledge
4-3:4.2 Reasonable Care and Lack of Knowledge
4-3:4.3 Limitations Periods
4-3:4.3a Generally
4-3:4.3b For Actions Against Persons Who Expertize Offering Statements
4-3:5 Who Can Be Liable?
4-3:5.1 Seller or Buyer
4-3:5.2 Collateral Persons
4-3:5.2a Control Persons
4-3:5.2b Aiders and Abettors
4-3:5.2c Expertizers
4-3:6 Remedies
4-3:6.1 Rescission
4-3:6.2 Rescissionary Damages
4-4 INSIDER TRADING (CALIFORNIA CORPORATIONS CODE SECTION 25402)
4-4:1 Jurisdiction
4-4:2 Elements
4-4:2.1 Insider
4-4:2.2 Insider Has Actual Knowledge of Material Information
4-4:2.3 Information Is Nonpublic, and Insider Knows Information Is Nonpublic
4-4:3 Defenses
4-4:3.1 Lack of Materiality/Reliance
4-4:3.2 Trading Plan Defense
4-4:3.3 Limitations Period
4-4:4 Pleading Standard
4-4:5 Who Can Be Liable?
4-4:6 Scope of Liability
4-4:7 Remedy
4-5 RIGHT TO INDEMNIFICATION AND CONTRIBUTION
Chapter 5: Business Torts
5-1 INTRODUCTION
5-2 INTERFERENCE TORTS
5-2:1 Interference With Existing Contract
5-2:1.1 Valid, Enforceable Contract and the Defendant’s Knowledge
5-2:1.2 Only Applicable to Strangers to the Contract
5-2:1.2a Corporate Owners and Other Financial Interests
5-2:1.3 The Intent Required to Prove Interference With Existing Contractual Relations
5-2:2 Intentional Interference With Prospective Economic Relations
5-2:2.1 Existence of a Probability of Future Economic Benefit
5-2:2.2 Intent to Cause Disruption
5-2:2.3 Independently Wrongful Conduct
5-2:2.4 Only Applicable to Strangers to the Relationship
5-2:2.5 At-Will Contracts and Contracts with Termination Provisions
5-2:3 Negligent Interference with Prospective Economic Relations
5-2:3.1 Duty of Care
5-2:3.2 Independent Wrongfulness
5-2:3.3 Negligent Interference with Existing Contractual Relations
5-2:4 Defenses
5-2:4.1 Statute of Limitations
5-2:4.2 Free Speech, Petitioning the Government, and the Litigation Privilege
5-2:4.3 An Attorney’s Confidential Relationship
5-2:4.4 No Competition Privilege
5-2:4.5 Financial Interest Privilege
5-3 DECEIT: FRAUD, CONCEALMENT, AND NEGLIGENT MISREPRESENTATION
5-3:1 Statutory Background
5-3:2 Intentional Deceit
5-3:2.1 Deceit as Intentional Misrepresentation
5-3:2.1a False Statement of Fact
5-3:2.1b Knowledge of Falsity (Scienter)
5-3:2.1c Intent to Induce Reliance
5-3:2.1d Plaintiff’s Reliance
5-3:2.1e Reliance as the Cause of Plaintiff’s Damages
5-3:2.2 Deceit as an Omission or Active Concealment
5-3:2.2a Duty to Disclose
5-3:2.3 Pleading and Proving Intentional Misrepresentation or Concealment
5-3:3 Negligent Misrepresentation
5-3:4 Remedies
5-3:4.1 Rescission
5-3:4.2 Damages
5-3:5 Defenses
5-3:5.1 Statute of Limitations
5-3:5.2 Due Diligence
5-4 DEFAMATION AND DISPARAGEMENT
5-4:1 Nature of Torts
5-4:1.1 Libel
5-4:1.2 Slander
5-4:1.3 Trade Libel
5-4:1.4 Slander of Title
5-4:2 Common Elements
5-4:2.1 Publication About Plaintiff or Plaintiff’s Goods, Services or Property
5-4:2.2 Statement of Fact
5-4:2.3 Falsity
5-4:2.4 Damages
5-4:2.4a Libel Per Se
5-4:2.4b Slander Per Se
5-4:2.4c Trade Libel
5-4:2.4d Slander of Title
5-4:2.5 Actual Malice
5-4:2.5a Public Figures
5-4:2.5b Private Plaintiff Involved in Matters of Public Concern
5-4:3 Remedies
5-4:3.1 Monetary Damages
5-4:3.1a Compensatory Damages
5-4:3.1b Punitive Damages
5-4:3.2 Injunctive Relief
5-4:4 Defenses
5-4:4.1 Absolute Privileges
5-4:4.1a Litigation Privilege
5-4:4.1b Other Official Proceedings
5-4:4.1c Fair Report
5-4:4.2 Qualified Privileges
5-4:4.2a Common Interest
5-4:4.2b Fair Comment
5-4:4.3 Statute of Limitations
5-4:4.3a Defamation
5-4:4.3b Disparagement
5-5 INVASION OF PRIVACY
5-5:1 Constitutional Invasion of Privacy
5-5:1.1 Legally Protected Privacy Interest
5-5:1.2 Reasonable Expectation of Privacy
5-5:1.3 Serious Invasion of Privacy Interest
5-5:1.4 Balancing of Interests
5-5:2 Intrusion Into Private Matters
5-5:2.1 Intentional Intrusion
5-5:2.2 Highly Offensive Intrusion
5-5:3 Public Disclosure of Private Facts
5-5:3.1 Public Disclosure
5-5:3.2 Offensive or Embarrassing Private Fact
5-5:3.3 Lack of Newsworthiness
5-5:4 Publicity Placing a Person in a False Light
5-5:4.1 Elements of Cause of Action
5-5:4.2 Defenses
5-5:5 Misappropriation of a Person’s Name or Likeness
5-6 ANTI-SLAPP MOTIONS
5-6:1 Protected Activity
5-6:2 Probability of Prevailing on the Merits
Chapter 6: Trademarks and Trade Names
6-1 TRADEMARKS, SERVICE MARKS AND TRADE NAMES DEFINED
6-1:1 Eligibility for Protection: Non-Traditional Marks
6-1:2 Trade Dress
6-1:2.1 Trade Dress and Functionality
6-1:3 Trade Names Defined
6-1:3.1 Farm Names
6-1:4 Certification Marks and Collective Marks
6-2 TRADEMARK RIGHTS
6-2:1 Legal Origins of Trademarks; Trademark Statutes
6-2:2 Priority is Critical to Establishing Rights
6-2:3 Priority and Federal Registrations
6-2:3.1 Priority and Related Foreign Applications
6-2:4 Marks are Territorial
6-2:5 Marks and the Internet
6-3 REGISTRATION
6-3:1 Trademark Registers
6-3:2 Contents of a Registration
6-3:3 Effect of Registration
6-3:3.1 Benefits of Registration on the Principal Register
6-3:3.2 Benefits of California Farm Name Registration
6-3:4 Assignment of Registrations and Applications
6-4 PRELIMINARY CONSIDERATIONS
6-4:1 Use in Commerce
6-4:1.1 Bona Fide Intent to Use in Commerce
6-4:1.2 Use in Commerce and Trademark Treaties and Conventions
6-4:1.2a United States Applications Based on Foreign Registrations
6-4:1.2b United States Applications Based on Foreign Applications
6-4:1.2c Madrid Protocol Registrations
6-4:2 Distinctiveness
6-4:2.1 Inherent Distinctiveness
6-4:2.2 Secondary Meaning
6-4:3 Federal Precedent and California Statutory Trademark Law
6-5 CAUSES OF ACTION
6-5:1 Trademark Infringement
6-5:1.1 Likelihood of Confusion
6-5:1.1a Strength of the Mark

6-5:1.1a(1) Conceptual Strength

6-5:1.1a(2) Commercial Strength

6-5:1.1b Proximity of the Goods or Services
6-5:1.1c Similarity of the Marks
6-5:1.1d Evidence of Actual Confusion

6-5:1.1d(1) Non-consumer Confusion

6-5:1.1e Marketing Channels Used

6-5:1.1e(1) Internet Marketing

6-5:1.1f Type of Goods and Likely Degree of Care Exercised
6-5:1.1g Accused Infringer’s Intent in Selecting the Mark
6-5:1.1h Likelihood of Expansion of the Product Lines
6-5:1.1i Factors Beyond Sleekcraft
6-5:1.2 Likelihood of Confusion in California Statutory and Common-Law Trademark Cases
6-5:2 Contributory Infringement and Vicarious Liability
6-5:3 Federal Unfair Competition Actions
6-5:3.1 Likelihood of Confusion for Unregistered Marks
6-5:3.2 False Advertising
6-5:3.3 Passing Off and Reverse Passing Off
6-5:3.4 Section 43(a) and the Copyright Act
6-5:4 Dilution
6-5:4.1 Famous Marks Defined
6-5:4.2 Blurring
6-5:4.3 Tarnishment
6-5:5 Anticybersquatting Consumer Protection Act
6-6 SURVEYS
6-7 DEFENSES
6-7:1 Fair Use and First Amendment
6-7:1.1 Fair Use
6-7:1.2 Marks in Titles of Artistic Works
6-7:1.3 Other Speech Protected by the First Amendment
6-7:2 Abandonment
6-7:2.1 Naked Licensing
6-7:3 Genericide
6-7:4 Functionality
6-7:5 Communications Decency Act
6-7:6 Equitable Defenses
6-7:7 Issue Preclusion
6-8 REMEDIES AND RESOLUTIONS
6-8:1 Injunctive Relief
6-8:2 Cancellation
6-8:3 Destruction of Infringing Articles
6-8:4 Damages
6-8:5 Attorney’s Fees
6-8:6 Summary Judgment
6-9 TRADEMARK TRIAL AND APPEAL BOARD INTER PARTES PROCEEDINGS
6-9:1 Interference
6-9:2 Opposition
6-9:3 Concurrent Registration
6-9:4 Cancellation
Chapter 7: Unfair Competition
7-1 INTRODUCTION
7-1:1 California’s Unfair Competition Law
7-1:2 California’s False Advertising Law
7-1:3 The Consumers Legal Remedies Act
7-2 CALIFORNIA’S UNFAIR COMPETITION LAW
7-2:1 Overview
7-2:1.1 History
7-2:2 Statutory Scheme
7-2:3 “Unlawful” Business Practice
7-2:3.1 Overview
7-2:3.2 Laws that Qualify for “Borrowing”
7-2:3.2a Federal Statutes and Regulations
7-2:3.2b State Statutes and Regulations
7-2:3.2c Local Ordinances
7-2:3.2d Miscellaneous Laws for “Borrowing”
7-2:3.3 Proving a Violation
7-2:4 “Unfair” Business Practice
7-2:4.1 Overview
7-2:4.2 “Unfair” Tests
7-2:4.2a Business Competitor Cases: Cel-Tech Test
7-2:4.2b Consumer Cases: Three Different Tests
7-2:4.3 Examples of Unfair Business Practices
7-2:4.4 Proving a Violation
7-2:5 “Fraudulent” Business Practice
7-2:5.1 Overview
7-2:5.2 “Likely to Be Deceived” Test
7-2:5.2a Actual Deception Not Required
7-2:5.2b “Reasonable” Person Standard
7-2:5.3 Omissions Cases
7-2:5.4 Proving a Violation
7-3 CALIFORNIA’S FALSE ADVERTISING LAW
7-3:1 Overview
7-3:1.1 History
7-3:1.2 Comparison with California’s Unfair Competition Law
7-3:2 “Catch-all” Provision for False and Misleading Advertising
7-3:3 Proving a Violation
7-4 DEFENSES TO CALIFORNIA’S UNFAIR COMPETITION LAW AND FALSE ADVERTISING LAW
7-4:1 Overview
7-4:2 Subject Matter Jurisdiction
7-4:2.1 Preemption
7-4:2.1a Express Preemption
7-4:2.1b Field Preemption
7-4:2.1c Conflict Preemption
7-4:2.2 Equitable Abstention
7-4:2.2a Cases Applying Equitable Abstention to UCL Claims
7-4:2.2b Cases Declining to Apply Equitable Abstention to UCL Claims
7-4:2.3 Primary Jurisdiction
7-4:2.3a Farmers Insurance Exchange Test
7-4:2.3b Application of the Primary Jurisdiction Doctrine
7-4:2.4 Exclusive Jurisdiction and Concurrent Exclusive Jurisdiction
7-4:3 Safe Harbor
7-4:4 Defenses to “Unlawful” Business Practices Claims
7-4:4.1 Defenses Available Under the “Borrowed” Law
7-4:4.2 Compliance with Law
7-4:4.3 Miscellaneous Defenses
7-4:4.4 Defenses That Do Not Apply
7-4:5 Defenses to “Unfair” Business Practices Claims
7-4:5.1 Practice Not “Unfair”
7-4:5.2 Miscellaneous Defenses
7-4:5.3 Compliance with the Law No Defense
7-4:6 Defenses to “Fraudulent” Business Practices Claims
7-4:6.1 No Deception
7-4:6.2 Puffery
7-4:6.3 Miscellaneous Defenses
7-4:6.4 Defenses That Do Not Apply
7-5 PROCEDURE UNDER CALIFORNIA’S UNFAIR COMPETITION LAW AND FALSE ADVERTISING LAW
7-5:1 Standing to Sue
7-5:1.1 Categories
7-5:1.1a Private Plaintiffs
7-5:1.1b Competitors
7-5:1.1c Public Prosecutors
7-5:1.2 “Lost Money or Property”
7-5:1.3 “Injury in Fact”
7-5:1.4 “As a Result of”
7-5:2 Liability
7-5:2.1 Who May Be Liable?
7-5:2.2 Secondary Liability
7-5:3 Class Action Considerations
7-5:3.1 Ascertainability
7-5:3.2 Community of Interest
7-5:4 Jurisdictional Reach
7-6 REMEDIES UNDER CALIFORNIA’S UNFAIR COMPETITION LAW AND FALSE ADVERTISING LAW
7-6:1 Overview
7-6:2 Restitution
7-6:2.1 Proof Required
7-6:2.2 Disgorgement Not Permitted
7-6:3 Damages Not Recoverable
7-6:4 Injunctions
7-6:5 Civil Penalties
7-6:6 Attorney’s Fees
7-7 THE CONSUMERS LEGAL REMEDIES ACT
7-7:1 Overview
7-7:1.1 Purpose
7-7:1.2 Coverage
7-7:2 Standing
7-7:3 Prohibited Acts
7-7:3.1 Twenty-four Prohibited Acts
7-7:3.2 Most Frequently Used Subsections
7-7:3.3 Causation and Reliance Required
7-7:4 Mandatory Notice Requirement
7-7:5 Defenses
7-7:5.1 Statute of Limitations
7-7:5.2 Unintentional Acts
7-7:5.3 Safe Harbor
7-7:5.4 Parol Evidence Not a Defense
7-7:6 Procedure
7-7:6.1 No Summary Judgment
7-7:6.2 Class Action Issues
7-7:7 Remedies
7-7:7.1 Actual Damages and Statutory Damages
7-7:7.2 Injunctions
7-7:7.3 Restitution
7-7:7.4 Punitive Damages
7-7:7.5 Treble Damages
7-7:7.6 Ancillary Relief
7-7:7.7 Civil Penalties
7-7:7.8 Attorney’s Fees
Chapter 8: Trade Secrets and Restrictive Covenants
8-1 INTRODUCTION
8-2 CALIFORNIA UNIFORM TRADE SECRET ACT
8-2:1 Elements of a CUTSA Claim
8-2:2 Existence of a Trade Secret
8-2:2.1 Types of Trade Secret Information
8-2:2.2 Independent Economic Value Derived From Secrecy
8-2:2.2a Secrecy; Availability From Public Sources
8-2:2.2b Split of Authority on “Readily Ascertainable” Information
8-2:2.2c Independent Economic Value
8-2:2.3 Reasonable Efforts to Maintain Secrecy
8-2:2.4 Nondisclosure Agreements as Evidence of Trade Secret Status
8-2:3 Misappropriation
8-2:3.1 Acquisition
8-2:3.2 Use
8-2:3.3 Disclosure and “Inevitable Disclosure”
8-2:3.4 Personal Liability of Officers and Directors
8-2:4 Remedies
8-2:4.1 Enjoining Actual or Threatened Misappropriation
8-2:4.2 Injunctions Requiring Affirmative Acts to Protect Trade Secrets
8-2:4.3 Actual Damages
8-2:4.4 Unjust Enrichment
8-2:4.5 Reasonable Royalty
8-2:4.6 Exemplary Damages
8-2:4.7 Attorney’s Fees
8-2:4.7a Bad Faith Litigation by Plaintiffs
8-2:4.7b Willful and Malicious Conduct by Defendants
8-2:4.7c “Prevailing Party”
8-2:4.7d Attorney’s Fees Awards After Voluntary Dismissal
8-2:5 Defenses
8-2:5.1 Statute of Limitations
8-2:5.1a Discovery Rule
8-2:5.1b Continuing Misappropriation
8-2:5.2 First Amendment Defense
8-2:6 Preemption (Supersession) of Other Causes of Action
8-2:6.1 Generally - Purpose
8-2:6.2 “Same Nucleus of Facts” Test
8-2:6.3 UTSA Preemption Authority From Other Jurisdictions Not Considered Persuasive
8-2:6.4 Preemption Determined on the Pleadings
8-2:6.5 Preemption of Claims for the Misappropriation of Non-Trade Secret Information
8-2:6.6 Application
8-2:7 Exception: Contract Claims Not Preempted
8-2:8 Exception: Criminal Actions Not Preempted
8-2:9 Common Law Trade Secret Misappropriation Preempted
8-3 LITIGATING TRADE SECRET CLAIMS
8-3:1 Pre-Suit Correspondence
8-3:2 Retaining Experts
8-3:3 Preservation and Forensic Inspection
8-3:4 Identification of Trade Secrets (Section 2019.210)
8-3:4.1 Purpose of Section 2019.210
8-3:4.2 Sufficiency of Section 2019.210 Disclosure
8-3:4.3 Applicability of Section 2019.210 in Federal Court
8-3:4.4 Confidentiality Clauses in Arbitration Agreements
8-4 THE FEDERAL DEFEND TRADE SECRETS ACT OF 2016 AND ITS RELATION TO CALIFORNIA LAW
8-4:1 Introduction
8-4:2 Definition of Trade Secret
8-4:3 Elements of a Claim
8-4:4 Preemption
8-4:5 Statute of Limitations
8-4:6 Whistleblower Protections
8-4:7 Procedural Considerations
8-4:8 Remedies
8-4:8.1 Ex Parte Civil Seizure Provision
8-4:8.2 Injunctions; Employee Mobility
8-5 COMPUTER FRAUD AND ABUSE ACT
8-5:1 Generally; Purpose
8-5:2 “Exceeds Authorized Access”
8-5:3 “Access[ing] a Computer Without Authorization”
8-5:4 Remedies
8-5:4.1 Private Plaintiffs
8-5:4.2 Not Preempted by the CUTSA
8-6 PENAL CODE SECTION 502
8-6:1 Generally
8-6:2 Meaning of “Access … Without Permission”
8-6:2.1 Provisions That Do Not Contain an “Access” Requirement
8-6:3 Exceptions
8-6:3.1 Acts Within the Scope of Lawful Employment
8-6:3.2 Acts Outside the Scope of Lawful Employment
8-6:4 Remedies
8-6:4.1 Criminal
8-6:4.2 Civil
8-7 RESTRICTIVE COVENANTS
8-7:1 Business and Professions Code Section 16600
8-7:1.1 Generally; Purpose; Public Policy
8-7:1.2 Statutory Exceptions
8-7:2 Agreements
8-7:3 Nonsolicitation Agreements
8-7:3.1 Nonsolicitation of Clients
8-7:3.2 Nonsolicitation of Employees
8-7:4 Nondisclosure Agreements
8-7:5 Statutory Exceptions
8-7:5.1 Sale of Goodwill of Business or Ownership Interest in or Operating Assets of Business Entity or Division of Subsidiary
8-7:5.2 Partnership Dissolution
8-7:5.3 Dissolution or Sale of a Limited Liability Company
8-7:6 Noncompetition Prohibitions While Employed Are Still Permissible
8-7:7 No Narrow Restraint Exception
8-7:8 Limited Trade Secret Exception
8-7:9 Non-Assignable Personal Services Contracts Limited to Seven Years
8-7:10 Declaratory Relief
8-7:11 Violation of Section 16600 as Predicate for Unfair Competition Claim
8-7:12 Injunctions Available if Based on Trade Secret Misappropriation
8-7:13 Restraints of Trade; No Discrimination
8-7:14 Applicability of Forum Selection Clauses
Chapter 9: Employment Litigation
9-1 EMPLOYMENT DISCRIMINATION AND HARASSMENT
9-1:1 Overview of State and Federal Laws and Coverage Analysis
9-1:2 Forms of Discrimination and Harassment, Elements and Burdens of Proof
9-1:2.1 Disparate Treatment and Impact
9-1:2.2 Harassment
9-1:2.3 Failures to Accommodate
9-1:2.4 Retaliation
9-1:3 Enforcement
9-1:3.1 Procedures and Limitations Periods
9-1:3.2 Remedies
9-1:3.2a Economic Damages
9-1:3.2b Non-economic Damages
9-1:3.2c Injunctive Relief
9-1:3.2d Attorney’s Fees and Costs
9-2 RETALIATION AND WHISTLEBLOWER LAW
9-2:1 California Retaliation Law
9-2:1.1 Statutory Claims
9-2:1.2 Wrongful Termination in Violation of Public Policy (Tameny Claims)
9-2:2 Federal Law
9-2:2.1 The Sarbanes-Oxley Act
9-2:2.2 The Dodd-Frank Act
9-3 REDUCTIONS IN FORCE (STATE AND FEDERAL)
9-3:1 Federal WARN Act
9-3:2 California WARN Act
9-3:3 Other Mass Layoff Considerations
9-4 LEAVES OF ABSENCE
9-4:1 Family and Medical Leave Act and California Family Rights Act
9-4:2 Pregnancy Disability Leave
9-4:3 Paid Sick Leave
9-4:4 Other Forms of Leave
9-4:4.1 Paid Family Leave
9-4:4.2 Organ and Bone Marrow Donors
9-4:4.3 School Activity Leave
9-4:4.4 Attending Court Proceedings
9-4:4.5 Military Leave
9-5 WAGE AND HOUR LAW
9-5:1 Sources of Law
9-5:1.1 The Fair Labor Standards Act
9-5:1.2 The California Labor Code
9-5:1.3 The California Industrial Welfare Commission Wage Orders
9-5:2 The Employment Relationship
9-5:2.1 Presumption of Employee Status
9-5:2.2 Employees vs. Independent Contractor
9-5:2.2a The California Employment Development Department Factors for Determining Employee Status
9-5:2.2b The Internal Revenue Service (IRS) Factors for Determining Employee Status
9-5:2.2c The California Workers’ Compensation Test for Determining Employee Status
9-5:2.2d The California Common Law Factors for Determining Employee Status
9-5:2.3 Other Types of Employment Relationships
9-5:2.3a Volunteers
9-5:2.3b Temporary or Leased Employees
9-5:2.3c Students/Trainees
9-5:2.3d Interns
9-5:2.4 Penalties for Misclassification
9-5:3 Compensation
9-5:3.1 Minimum Wage
9-5:3.1a Federal
9-5:3.1b State
9-5:3.1c Living Wage Ordinances
9-5:3.2 Overtime
9-5:3.2a Federal
9-5:3.2b State
9-5:3.3 Vacation Pay
9-5:4 Meal Periods
9-5:5 Rest Breaks
9-5:6 Penalties for Employer Noncompliance in the Providing of Meal Periods and Rest Breaks
9-5:7 Wage Statements and Other Records
9-5:8 Pay at Termination
9-5:9 The Labor Code Private Attorneys General Act of 2004
9-5:10 Unfair Business Acts and Practices
9-5:10.1a Elements
9-5:10.1b Statute of Limitations
9-5:10.1c Remedies
9-5:10.1d Defenses
9-5:11 Exemptions from Overtime Compensation Requirements
9-5:11.1 Exempt Status
9-5:11.1a Minimum Salary Requirements
9-5:11.1b Basis of Compensation
9-5:11.1c Exempt Duties Generally
9-5:11.1d Specific Exemptions

9-5:11.1d(1) Executive Employees

9-5:11.1d(2) Administrative Employees

9-5:11.1d(3) Professional Employees

9-5:11.1d(4) Computer Employees

9-5:11.1d(5) Outside Sales

9-5:11.1d(6) Inside Sales

9-5:11.1d(7) Highly Compensated Employees

9-5:11.2 Domestic Worker Bill of Rights and Personnel Attendants
9-5:11.3 Federal Personnel Attendant Companionship Exemption
9-5:12 Settling Wage Claims
9-5:12.1 FLSA
9-5:12.2 State Claims
9-6 EMPLOYMENT TORTS
9-6:1 Constructive Discharge
9-6:1.1 Prima Facie Case
9-6:1.2 Statute of Limitations
9-6:1.3 Defenses
9-6:1.4 Illustrative Constructive Discharge Cases
9-6:2 Negligent Hiring and Retention
9-6:2.1 Prima Facie Case
9-6:2.2 Statute of Limitations
9-6:2.3 Defenses
9-6:2.4 Relevant Case Law
9-6:3 Fraudulent Misrepresentation in the Employment Context
9-6:3.1 Labor Code Section 970-Solicitation of Employee by Misrepresentation
9-6:3.1a Prima Facie Case
9-6:3.1b Statute of Limitations
9-6:3.1c Defenses
9-6:3.1d Relevant Case Law
9-6:3.2 Labor Code Section 1054—Preventing Subsequent Employment by Misrepresentation
9-6:3.2a Prima Facie Case
9-6:3.2b Statute of Limitations
9-6:3.2c Defenses
9-6:3.2d Relevant Case Law
9-7 EMPLOYMENT CONTRACT CLAIMS
9-7:1 At-Will Employment
9-7:2 General Principles of Contract Law Govern Employment Contracts
9-7:3 Implied-In-Fact Employment Contracts
9-7:4 The Implied Covenant of Good Faith and Fair Dealing
9-7:5 Damages
9-7:6 Breach of Contract Based Upon Promissory Estoppel
9-7:7 Statutes of Limitations
9-7:7.1 Oral Contracts
9-7:7.2 Written Contracts
9-8 PUBLIC EMPLOYERS
9-8:1 California Tort Claims Act
9-8:1.1 Procedural Requirements
9-8:1.2 Timelines
9-8:1.3 Immunities
9-8:1.4 Claims Not Covered
9-8:2 Punitive Damages and Civil Penalties
9-8:3 Public Employee Due Process Rights
Chapter 10: Alternative Dispute Resolution
10-1 INTRODUCTION
10-2 MEDIATION
10-2:1 Overview
10-2:2 Scope of Agreements to Mediate
10-2:3 Mediation is Voluntary
10-2:4 Mediation is Confidential
10-2:5 Mediator Incompetent to Testify
10-2:6 Mediator Disclosures—Bias
10-2:7 Enforceability of the Settlement
10-3 CIVIL ACTION MEDIATION PROGRAM
10-3:1 Submission to Mediation
10-3:2 Selection of the Mediator
10-3:3 No Suspension of the Trial Delay Reduction Act or Statutory Requirements of Diligent Prosecution of Action
10-3:4 Attendance at the Mediation
10-3:5 Mediation Participant List and Mediation Statement
10-3:6 Deadline for Completing Mediation and the Filing of the Statement of Agreement or Nonagreement
10-3:7 Discovery Rights
10-3:8 Confidentiality
10:3-9 Costs of the Mediation
10-4 CONTRACTUAL ARBITRATION
10-4:1 The California Arbitration Act
10-4:2 Compelling and Resisting Arbitration
10-4:2.1 Jurisdiction and Venue
10-4:2.2 Venue for Petition to Compel Prior to Arbitration
10-4:2.3 Venue for Petition to Superior Court After Arbitration Commenced
10-4:2.4 Petitioning to Compel Arbitration
10-4:3 Grounds for the Petition to Compel Arbitration
10-4:4 Opposing Motions to Compel Arbitration
10-4:4.1 Unconscionable Arbitration Clauses
10-4:4.1a Substantive Unconscionability
10-4:4.1b Procedural Unconscionability
10-4:4.2 Waiver
10-4:5 Parties Who May Enforce the Arbitration Agreement
10-4:6 Parties Against Whom the Arbitration Agreement May Be Enforced
10-4:7 Motion to Stay Litigation Pending Arbitration
10-4:8 Appeal of Order Granting or Denying Motion to Compel Arbitration
10-4:9 Petition to Consolidate Separate Arbitration Proceedings
10-4:10 Selecting the Arbitration Provider and the Arbitrator
10-4:10.1 Disclosures
10-4:10.2 Disqualification
10-4:10.3 Ethics Standards for Neutral Arbitrators in Contractual Arbitration
10-4:10.3a Scope of Duty
10-4:10.3b Duration of Duty
10-4:10.3c Timing of Disclosures
10-4:10.3d Specific Disclosures in Consumer Arbitrations
10-4:10.3e Disqualification of a Neutral Arbitrator
10-4:10.3f Prohibition on the Receipt of Gifts, Bequests, Favors or Honoraria
10-4:10.3g Duty of Fairness, Promptness, and Diligence
10-4:10.3h Prohibition on Ex Parte Communications
10-4:10.3i Duty of Confidentiality
10-4:10.3j Restrictions on Compensation
10-4:10.3k Restrictions on Marketing and Direct Solicitation of Services
10-4:11 Submitting the Claim
10-4:12 Tolling the Time to Commence Arbitration
10-4:13 Filing Fees
10-4:14 Payment of the Arbitrator’s Fees and Expenses
10-4:14.1 Restrictions on Payment of the Arbitrator’s Fees and Expenses in Consumer Arbitrations
10-4:15 Responding to the Claim
10-4:15.1 Answers
10-4:15.2 Failure to Answer: Claims Generally Deemed Denied
10-4:15.3 Counterclaims
10-4:16 Scope of the Arbitrator’s Authority
10-4:17 Provisional Remedies
10-4:18 Discovery
10-4:18.1 Discovery Pursuant to the Arbitration Agreement
10-4:18.2 Discovery In Special Situations
10-4:18.2a Uninsured Motorist Claims
10-4:18.2b Employment Discrimination Claims
10-4:18.2c Nonstatutory Public Policy Claims
10-4:18.3 Documents and Evidence
10-4:18.4 Depositions
10-4:18.5 Nonparty Discovery
10-4:18.6 Resolving Discovery Disputes
10-4:18.6a Motions to Compel Discovery
10-4:18.6b Quashing Subpoenas
10-4:19 Dispositive Motions
10-4:20 The Hearing
10-4:20.1 Prehearing Exchanges of Information
10-4:20.2 Prehearing Briefing
10-4:20.3 Party Attendance
10-4:20.4 Presenting the Case at Arbitration
10-4:20.5 Opening Statement
10-4:20.6 Presentation of Documentary Evidence
10-4:20.7 Presentation of Witnesses
10-4:20.7a Compelling Appearance of Witnesses
10-4:20.7b Cross-Examination
10-4:20.8 Expert Testimony
10-4:20.9 Closing Arguments and Briefing
10-4:21 The Award
10-4:21.1 Available Remedies
10-4:21.1a Damages
10-4:21.1b Equitable Relief
10-4:21.2 Conclusiveness of the Award
10-4:21.2a Generally
10-4:21.2b Res Judicata and Collateral Estoppel
10-4:22 Judicial Review
10-4:23 Post-Award Proceedings in Arbitration
10-4:23.1 Application to Correct the Award
10-4:23.2 Motion for Attorney’s Fees
10-4:24 Petition to Confirm, Correct or Vacate Arbitration Award in Court
10-4:24.1 Time Limit to Petition to Confirm, Correct or Vacate and Award
10-4:24.2 Contents of the Petition and Response
10-4:24.3 Effect of an Award Not Confirmed or Vacated
10-4:25 Entry of Judgment Upon Arbitration Award
10-4:26 Costs and Attorney’s Fees
10-4:27 Post-Award Appellate Rights
10-4:27.1 Appeals Pursuant to Agreement
10-4:27.2 Appeal From an Order Confirming, Correcting or Vacating an Arbitration Award
10-4:27.2a Grounds for Appeal
10-4:27.2b Time to Appeal
10-5 JUDICIAL ARBITRATION
10-5:1 Purpose
10-5:2 Criteria for Assignment of a Case to Judicial Arbitration
10-5:3 Selecting the Arbitrator
10-5:3.1 Selection Procedures
10-5:3.2 Disqualification
10-5:4 Deadline to Notice and Hold Hearing
10-5:5 Right to Discovery and Discovery Cut-Off
10-5:6 Powers of the Arbitrator to Conduct the Proceedings
10-5:7 Rules of Evidence at the Hearing
10-5:7.1 Written Reports and Other Documents
10-5:7.2 Witness Statements
10-5:7.3 Depositions
10-5:7.4 Subpoenas
10-5:8 The Arbitrator’s Award
10-5:9 Post-Arbitration Procedures and Request for Trial De Novo
10-5:10 Effects of Entry of Judgment Upon Award in Judicial Arbitration
10-5:11 Vacating a Judgment Upon Award in Judicial Arbitration
10-5:11.1 Impacts of Requesting a Trial De Novo
10-5:11.2 Conduct of the Trial De Novo in Superior Court
10-6 THE FEDERAL ARBITRATION ACT
10-6:1 Scope and Applicability
10:6-2 Federal Preemption
10-6:3 Appealability of an Order Granting or Denying a Petition to Compel Arbitration
10-6:4 Selection of the Arbitrator
10-6:5 Subpoena Power
10-6:6 Petition to Confirm, Vacate, Modify or Correct the Award
Table of Cases
Index
Forms
Back Page
 
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