Saturday, December 3, 2016

Ok =< 10(Damages + Brandts)

Nickerson v. Stonebridge Life Ins. Co., No. B234271 (D2d3 Nov. 3, 2016)

This is our third go-round on this case, having covered the original D2 opinion and the Supreme Court’s partial reversal. The Supremes held that Brandt fees—fees incurred by an insured in its effort to obtain wrongfully denied coverage—should count in the denominator for the 9:1 or 10:1 ratio that more or less limits the ratio between actual and punitive damages under the constitutional Gore/State Farm due process framework.

On remand, the court runs through a full analysis on the puni award, finding that although the jury award of $19 million on a compensatory award of $35,000 and 12,500 in Brandt fees was out of whack, a punitive award of ten times that sum—$475,000—would hold up under Gore/State Farm. So the court vacates the new trial award that pertained to the remittitur and orders the trial court to amend the judgment to reflect punitives of $475,000. 

Affirmed, as modified.

Thursday, December 1, 2016

Garbage Battle Is a SLAPP.

Indus. Waste & Debris Box. Serv., Inc. v. Murphy, No A142388 (D1d2 Oct. 28, 2016)

Defendant is a waste and recycling consultant. On behalf of Client, it wrote a report about recycling rates that was positive for Client but questioned the veracity of Client’s Competitor’s statements about how much of the waste it collected was ultimately recycled. Client ultimately submitted the report to a local government in Sonoma County, resulting in Client getting a waste hauling contract that Competitor previously held. Competitor sued Defendant for defamation and other similar causes of action.

If you haven’t yet guessed where this is going, you might be new to California.

Wednesday, November 30, 2016

Client Conflicts Confound Counsel on Class Claims

Walker vs. _________, No. D069713 (D4d1 Oct. 28, 2016)

Counsel represents plaintiffs in two wage-and-hour class actions against the same Employer. The class in the first case is certified. A non-exempt Employee who is a member of the class in Case #1 subsequently got promoted to an exempt position as a low-level manager. She’s now a potential Employer witness in this second—yet-to-be-certified—class case. Indeed, she fired some of the employees in Class #2. So Employer moves to DQ Counsel in Case #2 on the grounds that he might have to cross examine his own client. The trial court agreed.

Monday, November 28, 2016

Unexpected Comeuppance for Jerky Trial Behavior

Bigler-Engler v. Berg, Inc. No D063556 (D4d1 Oct. 28, 2016)

This is a really loooonnnng opinion arising from an appeal of a products liability trial. Defendants sold, marketed, and prescribed a cold therapy device, But as the court explains
unlike normal cold therapy remedies like an icepack or “a bag of frozen peas”—this device managed to give plaintiff some kind of super awful infection due to constant application of cold. Defendants were, it appears, kind of a motley crew as far as the medical device industry goes and they got tagged with big-time damages, including $5 million in non-economic generals, plus punitives.

Tuesday, November 22, 2016

Progress Be Damned....

Khosh v. Staples Constr. Co., No. B268937 (D2d6 Oct. 26, 2016)

Another of D2’s “new font” opinions. I am on record that the Century Schoolbook is an improvement. But I still find the line spacing kind of annoying. It’s not single-spaced with a full break between paragraphs like a Ninth Circuit slip opinion, a Westlaw printout, or a US Supreme Court brief. But it’s also not 1 1/2 like a readable appellate brief. It’s like 1.2, which I find a little distracting for some reason. The paragraph indents are also weirdly large. What’s the point of a 1 1/2” indent?

You Ain't an AG

Millview Cnty. Water Dist. v. State Water Res. Control Bd., No. A145428 (D1d1 Oct. 26, 2016)

A local water district and some citizens who leased it a riparian water rights claim won a lawsuit against the State Water Resources Control Board. Plaintiffs sought to recover their attorneys’ fees under Code of Civil Procedure § 1021.5, the private attorney general doctrine. But an award under § 1021.5 is only warranted when, among other factors, the plaintiff’s burden of litigating is out of proportion to their stake in the matter. Given that the water rights in issue were worth millions, that can’t be the case here.