Friday, February 23, 2018

Truckers II

Muro v. Cornerstone Staffing Solutions, Inc., No. D070206 (D4d1 Feb. 23, 2018)

Plaintiff is a trucker bringing a wage and hour class action against the Temp Service that employs him. His employment contract has an arb clause with a class action waiver. But as was addressed in the 2015 Garrido case, the FAA has a carve out for transportation worker contracts. So the clause is measured under California state arbitration law, which still applies a pre-AT&T v. Concepcion rule that usually invalidates class action waivers. Which happens here. So, like Mr. Garrido, Plaintiff here gets to keep his case in court as a class action.


Settling Personal Claims Kills PAGA Standing

Kim v. Reins Int’l. Cal., Inc., No. B278642 (D2d4 Dec. 29, 2017)

Plaintiff here brought some PAGA claims along with some regular wage and hour stuff. The wage and hour claims got sent to arbitration, and the PAGA claims—which can never be sent to arbitration—were put on ice while that was happening. The parties settled the stuff in arbitration, and as part of that, Plaintiff dismissed those claims with prejudice.

Wednesday, February 21, 2018

Founder Fends Off Parol Evidence Challenge to Oral Put

Founder was selling his company to Buyers, a private equity outfit. He wanted to just cash out and be done. But Buyers—as private equity guys often dowanted Founder to stick around and keep some skin in the game. So they offered part of the consideration in equity. Founder grudgingly accepted.

Friday, February 16, 2018

Ambiguities Do Not a Sham Affidavit Make

Turley v. Familian Corp., No. A149752 (D1d2 Dec. 22, 2017)

Under D’Amico v. Board of Medical Examiners, 11 Cal. 3d 1 (1974), you can’t avoid summary judgment by submitting a declaration from a witness that contradicts his or her deposition testimony. But for the rule to apply, it has to really contradict. There can’t just be ambiguities from which inferences of inconsistency could be drawn. 

Which was the trial court’s mistake here. The testimony wasn’t really inconsistent with the declaration. In the course of saying it was, the trial court’s order mischaracterized the depo pretty badly. And in any event, none of it mattered because even the depo testimony, standing alone, was enough to crated a fact dispute such that summary judgment should have been denied.


Thursday, February 15, 2018


Boyd v. Freeman, No. B279246 (D2d4 Dec. 20, 2017)

When a case is brought to judgment, res judicata bars litigation of all claims that were brought or could have been brought in the first action. But it applies only when the first judgment is “on the merits.” Interestingly, a demurrer granted on statute of limitations grounds is not, for claim preclusion purposes, on the merits. Not sure why that is the case, but the case law seems pretty clear on the point.

Which means no res judiciata in this case. Of course, given that the prior case was dismissed on the statute of limitations, and that this case was filed three years after that, it’s hard to conceive of how this case isn’t also time-barred. But that’s apparently a problem for the superior court on remand.


Wednesday, February 14, 2018

Attachment 101

Santa Clara Waste Water Co. v. Allied World Natl Assurance Co., No B279679 (D2d6 Dec. 20, 2017)  

To obtain a pretrial writ of attachment, the plaintiff needs to make an evidentiary showing of the “probable validity” of its claims. Code Civ. Proc. §§ 484.090(a). I.e., it must be “‘more likely than not’ [that] the plaintiff will obtain a judgment on that claim.” § 481.190. An order granting an attachment is immediately appealable. § 904.1(a)(5). The Court here affirms appeal of a granted writ of attachment, because the plaintiff did, in fact, show probable validity of several of its claims.


Tuesday, February 13, 2018