contract-based claim in California

2014Contrary to the trial court’s view of the issue, Sprint’s petition to compel arbitration did not “commence[] an analytically distinct special proceeding . . . nestled within the action[.]” As our colleagues in Division Three recently put it, “[a] petition to compel arbitration filed in a pending lawsuit is ‘part of the underlying action’; it is not a distinct action.” (Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 772 (Phillips).) Instead, “[Plaintiffs’] lawsuit was the action on the contract for purposes of Civil Code section 1717; [Sprint’s] . . . petition to compel arbitration was a co

2014(Frog Creek, supra, 206 Cal.App.4th at p. 535 [“defeating a petition to compel arbitration filed in a pending action does not justify a grant of fees under Civil Code section 1717 where the merits of the contract claims remain pending in that action”].) As our colleagues in Division Three recently put it, in considering the application of res judicata, “[a] petition to compel arbitration filed in a pending lawsuit is ‘part of the underlying action’; it is not a distinct action.” (Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 772 .) Instead, “[plaintiffs’] lawsuit was the action on the con

2014Contrary to the trial court’s view of the issue, Sprint’s petition to compel arbitration did not “commence[] an analytically distinct special proceeding . . . nestled within the action[.]” As our colleagues in Division Three recently put it, “[a] petition to compel arbitration filed in a pending lawsuit is ‘part of the underlying action’; it is not a distinct action.” (Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 772 (Phillips).) Instead, “[Plaintiffs’] lawsuit was the action on the contract for purposes of Civil Code section 1717; [Sprint’s] . . . petition to compel arbitration was a co

2014(Frog Creek, supra, 206 Cal.App.4th at p. 535 [“defeating a petition to compel arbitration filed in a pending action does not justify a grant of fees under Civil Code section 1717 where the merits of the contract claims remain pending in that action”].) As our colleagues in Division Three recently put it, in considering the application of res judicata, “[a] petition to compel arbitration filed in a pending lawsuit is ‘part of the underlying action’; it is not a distinct action.” (Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 772 .) Instead, “[plaintiffs’] lawsuit was the action on the con

2006In Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990 , 22 Cal.Rptr.3d 352 , 102 P.3d 268 , the Supreme Court synthesized the relevant test for allowing a contract based claim to be pursued as a tort cause of action: "`Generally, outside the insurance context, "a tortious breach of contract . . . may be found when (1) the breach is accompanied by a traditional common law tort, such as fraud or conversion; (2) the means used to breach the contract are tortious, involving deceit or undue coercion; or (3) one party intentionally breaches the contract intending *657 or knowing

2006In Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990 , 22 Cal.Rptr.3d 352 , 102 P.3d 268 , the Supreme Court synthesized the relevant test for allowing a contract based claim to be pursued as a tort cause of action: "`Generally, outside the insurance context, "a tortious breach of contract . . . may be found when (1) the breach is accompanied by a traditional common law tort, such as fraud or conversion; (2) the means used to breach the contract are tortious, involving deceit or undue coercion; or (3) one party intentionally breaches the contract intending *657 or knowing

2025(See Bilbao, supra, 217 A.3d at p. 984 [“Under the contractual approach, an agreement between progenitors governing disposition of the pre-embryos is presumed valid and enforceable in a dispute between them”]; Kass v. Kass (N.Y. 1998) 696 N.E.2d 174, 180 [“Agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them”].) As one court explained, “[p]roponents of the contractual approach primarily argue that this approach allows ‘the progenitors—not the [s]tate and not the cour

2012Hsu further emphasized the need to determine who prevailed on the contract as a whole by pointing out in a footnote that a trial court could properly award fees to a defendant who prevailed against the complaint but lost on a cross-complaint if the defendant’s cross-complaint “was essentially defensive in nature.” (Hsu, supra, 9 Cal.4th at p. 875, fn. 10.) Under the Hsu/Bankes approach, Frog Creek’s lawsuit was the action on the contract for purposes of Civil Code section 1717; Brown’s first petition to compel arbitration was a contract-based claim within the larger action and Frog Creek’s vic

2000Corp. (1993) 18 Cal.App.4th 521 [ 22 Cal.Rptr.2d 453 ] addressed substantially the same question, and concluded that Garmon does not require preemption of the contract-based claim.

2000Corp. (1993) 18 Cal.App.4th 521 [ 22 Cal.Rptr.2d 453 ] addressed substantially the same question, and concluded that Garmon does not require preemption of the contract-based claim.