Thursday, October 20, 2016

In Honor of Francis Walsh

Esparza v. Kaweah DeEsparza v. Kaweah Delta Dist. Hosp., No. F071761 (D5 Sept. 21, 2016)

When he wasn’t randomly digressing on the Warsaw Convention, my torts professor managed to say in pretty much every class—to the blank stares of 120 baffled 1Ls—“DON’T FORGET YOUR CODE CLAIM!”  He must have sued the government a lot or something.

Wednesday, October 19, 2016

Wife Fails to Bounce Divorce Judge with § 170.6 Gambit

Rothstein v. Superior Court, No. B275603 (D2d5 Sept. 16, 2016).

During Husband and Wife’s divorce case, Wife filed a peremptory challenge against the family law judge under Code of Civil Procedure § 170.6. After the case was reassigned, Family Law Judge #2 entered a dissolution judgment, but retained jurisdiction to deal with property division, support, etc. While that was pending, wife’s company sued Husband to collect on a debt. Husband got the matter transferred to FLJ2 as a related matter. WifeCo. then filed its own § 170.6 to strike FLJ2. FLJ2 accepted the strike and transferred the whole case to Judge #3. After husband moved for reconsideration, which was denied, Husband took a writ.

Tuesday, October 18, 2016

Nice Try...

Perez v. U-Haul of Cal., No. B262029 (D2d7 Sept. 16, 2016)

The California Supreme Court held that PAGA claims aren’t arbitrable in the oft-cited Iskanian case. Defendant here raised a clever argument that, while a whole PAGA claim might not be, whether plaintiff is an “aggrieved employee”—a threshold issue that goes to whether PAGA even applies—can be the subject of an agreement to arbitrate. No dice. According to the court, nothing in Iskanian can be read to permit the hiving off of threshold issues and sending them to arbitration.


Monday, October 17, 2016

Good Luck to All That

Randall v. Mousseau, No. B263945 (D2d7, as amended, Sept. 16, 2016)

In California, the appellant bears the burden of showing error. That means, among other things, that she needs to present the record on appeal. There are two different records—a written record, and a record of oral proceedings. And then for each type of record there are various options to compile. For the record of oral proceedings, the standard is a court reporter’s stenographic transcript. (In the lingo of California state court, a “reporter’s transcript.”) See Cal. R. Ct. 8.130. That’s been the case since modern stenography came into place during the mid-20th Century. But there are other options.

Wednesday, October 12, 2016

And Now for Some Qui Tam . . .

People ex rel Allstate Ins. Co. v. Dahan, No. B259799 (D2d3 Sept. 15, 2016)

This is kind of interesting. A relator wins a false claims act case in which the government declined to intervene. The losing defendant tries to argue that its liability on the judgment is improperly allocated between the relator and the government. But, as the court holds here, the defendant/debtor doesn’t have standing to complain about that. Regardless of who it owes to, its still owes. So it isn’t aggrieved by the allocation.

Appeal dismissed.

Tuesday, October 11, 2016

No Arb for Trailer Park

Penilla v. Westmont Corp., No. B262097 (D2d4 Sept. 9, 2016)

The court here finds an arbitration provision in a mobile home park rental agreement to be unconscionable. Procedurally unconscionable in that it did not disclose the expensive fees that a claimant would be expected to shoulder and because it was not provided in Spanish or explained to renters who couldn’t read English. And substantively unconscionable because it imposed steep fees to deter the residents from asserting claims and unreasonably shortened the statute of limitations. So the trial court correctly denied the park owner’s motion to compel. 


Why Arbitrations Tend to Go on Too Long ...

Royal Alliance Assocs., Inc. v. Liebhaber, No. B264619 (D2d4 Aug. 30, 2016)

It’s pretty hard to get an arbitration award vacated. The arbitrators error, even a really really bad one, is not enough. But one way to do it is to show that the arbitrator refused even to hear evidence. Which is what happened here. 

During an informal hearing, Party A gave an informal explanation of her conduct in an effort to exonerate herself. The opposing party had doubts about the veracity of those statements, and asked to question A. The arbitrators—it was a three arbitrator panel—said no, in reliance on the rules of their arbitral forum. They then proceeded to rule in A’s favor, specifically noting in their decision that the found A’s explanation to be credible.

That goes too far, even for arbitration. Code of Civil Procedure § 1286.2 requires vacation of an award when the arbitrators commit misconduct, exceed their powers, or refuse to hear evidence material to the dispute. Regardless of whether the panel complied with their own rules, refusing the hear relevant evidence—such as the cross examination of a witness whose credibility is key to the whole case—crosses a red line. See Code Civ. Proc. § 1286.2(a)(5).