Monday, April 23, 2018

Friday, April 20, 2018

A Trade Association Is Not an Official Proceeding

Kettler v. Gould, No. B282160 (D2d8 Apr. 20, 2018)

Some Heirs are upset with the Trustee who manages their late parents’ trust, to which Heirs are beneficiaries. Heirs complained about Trustee’s conduct, quite vociferously. They accused him of embezzlement, elder abuse, perjury, and a bunch of other bad stuff to, among others, FINRA, the California Department of Insurance, the Certified Financial Planners Board of Standards, Trustee’s employer, and an insurance company.

Wednesday, April 18, 2018

Ninety Days of Tolling

Selvidge v. Tang, No. C083427 (D3 Mar. 5, 2018)

Under Code of Civil Procedure § 340.5, the statute of limitations for med-mal is one year or three years after discovery of the injury. The patient in this case died, so it’s a one year clock. Plaintiff—patient’s next of kin
sued almost three months after the year and run, so she’s too late under § 340.5.

Tuesday, April 17, 2018


Shapria v. Lifetech Res., No. B283445 (D2d4 Apr. 17, 2018)

At trial, prior to making his closing argument, Plaintiff, sensing he was going down, tried to dismiss his case with prejudice under Code of Civil Procedure § 581(e). The trial court denied the motion and, after ruling for Defendant on the merits, awarded Defendant a substantial amount of attorneys' fees under Civil Code § 1717. 

But that was error.

Section 581(e) expressly permits a plaintiff to voluntarily dismiss a case, with prejudice, after the commencement of trial. If the dismissal is requested prior to the case being submitted for decision—which was not the case here because closings were not complete—leave of court is not required. So the trial court didn't have authority to deny the dismissal. And since Civil Code § 1717(b)(2) says there is no prevailing party when a case is terminated by voluntary dismissal, it was therefore also error to award fees to defendant. 

It might not seem fair to let Plaintiff weasel out of a fee award when he bailed while on the cusp of losing, but that’s what the law says.


A Lawsuit over a Lawsuit Meets the Bar of § 47(b)

Herterich v. Peltner, No. A147554 (D1d2, as modified Mar. 28, 2018)

Plaintiff, a disinherited Son in a probate dispute, sued Executor and his Attorney for making various statements alleged to be false during the probate case. The trial court ruled against Son on the merits. He appealed. The Court of Appeal, however, noticed that there’s something more fundamentally problematic about this lawsuitit is a lawsuit over a lawsuit. So it ordered briefing on whether the litigation privilege in Civil Code § 47(b) bars Son’s claim. It does. 

Of course, Executor and Attorney didn’t raise that defense in the trial court, so Son claims they waived it. But the Court doesn’t find that to be much of a barrier, because it presents a pure question of law applied to undisputed facts. Appellate courts have the discretion to consider purely legal questions first raised on appeal. The Court elects to do so here. 

As the Court explains, § 47(b) can and has been applied to lawsuits based on alleged fraudulent representations made in the course of prior probate proceedings. The fact that the probate code puts specific duties of candor on executors and their representatives does not vitiate the privilege in some later case. None of these statutory duties are fundamentally inconsistent with privileging statements made during the course of litigation from serving as the basis of future liability in tort. To the contrary, if a party is defrauding the court in a probate proceeding, the remedy for that fraud is in the probate case itself—including various procedures that permit for post-judgment reliefnot by filing a separate lawsuit. 


Friday, April 13, 2018

Evidence of Inconclusivess Meets SJ Burden

Leyva v. Garcia, No. F073398 (D5 Feb. 28, 2018)

The Court here affirms a grant of summary judgment in favor of defendant, an apartment owner, in a negligence case brought by tenants injured in a fire. The opinion contains a good discussion of the moving party’s burden under California law. 

Thursday, April 12, 2018


Inversiones Papaluchi v. Superior Court, No. B285092 (D2d5 Feb. 27, 2018)

For some random reason, cases arising from helicopters crashes in South America seem to loom large in the jurisprudence of personal jurisdiction and service of process. This is another one.