Impossibility of contractual performance

To excuse compliance with a contractual term, “the impossibility of performance must attach to the nature of the thing to be done and not to the inability of the obligor to do it.” (Hensler v. City of Los Angeles (1954) 124 Cal.App.2d 71, 83 (Hensler).) Impossibility means not only strict impossibility, but also “`impracticability because of […]

Adverse employment action

CACI No. 2509. “Adverse Employment Action” Explained [Name of plaintiff] must prove that [he/she/nonbinary pronoun] was subjected to an adverse employment action. Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course […]

Damages under the California Fair Employment and Housing Act

A successful plaintiff under FEHA may recover the following: back pay (also referred to as back wages or lost earnings) (see Govt C §12965(c). Commodore Home Sys., Inc. v Superior Court (1982) 32 C3d 211.); front pay (or lost future earnings) to offset future pecuniary losses until he or she finds appropriate new employment; actual and general compensatory damages, including […]

Civil extortion

“Extortion is the obtaining of property from another, with his consent … induced by a wrongful use of force or fear….” (Pen.Code, § 518.) Fear, for purposes of extortion “may be induced by a threat, either: [¶] … [¶] 2. To accuse the individual threatened … of any crime; or, [¶] 3. To expose, or […]

Promissory estoppel

The Restatement Second of Contracts, section 90 (hereafter Restatement section 90), subdivision (1) provides as follows concerning claims for promissory estoppel: “A promise which the promisor should reasonably expect to induce action or 905*905 forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice […]

Employee’s duty of loyalty to employer

California The duty of loyalty arises not from a contract but from a relationship-here, the relationship of principal and agent. Agency is “the fiduciary relationship that arises when one person (a `principal’) manifests assent to another person (an `agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and […]

Intentional infliction of emotional distress (California and Colorado)

California A cause of action for intentional infliction of emotional distress exists when there is “`”`(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the […]

Copyright protection for music compilations (9th Cir)

From Skidmore v. ZEPPELIN, 952 F. 3d 1051 – Court of Appeals, 9th Circuit 2020 I. THE 1909 COPYRIGHT ACT The world of copyright protection for music changed dramatically during the twentieth century and those changes dictate our analysis here. The baseline issue we address is the scope of Wolfe’s copyright in the unpublished composition […]

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