Wednesday, June 28, 2017

Sketchy Default; Sketchy Vacation ...

Grapo v. McMills, No. A147522 (May 23, 2017)

So this case involves a crazy default judgment scenario where an individual was served with a pro se complaint with his name in the caption, but he wasn’t mentioned in the counts. He didn’t respond. His default was taken, but before the default judgment was entered, he died. Plaintiff tried to get a $10 million judgment, which was rejected. Then he amended the complaint and sought $12 million, but the complaint also mentioned $60k in lost property. The trial court ultimately signed off on a $60k judgment.

On Call Claims Merit Class Cert

Bartoni v. Am. Med. Response W., No. A143784 (D1d May 24, 2017) 

For a while, it seemed like there was an opinion on class cert in a wage and hour case—usually reversing a denial—every week. But it’s been a dry spell of late. 

Thursday, June 22, 2017

You're the Puppet!!!

Kinney v. Clark, No. B265267 (D2d1, as modified Jun. 14, 2017)

This appeal is just the latest in a lengthy saga where a Disbarred Lawyer has been trying to duck a ten-year old order that he pay an adversary’s attorneys’ fees. He’s also been declared a vexatious litigant pretty much everywhere in Southern California and has pre-filing orders against him. This case is no different and the court dismisses the appeal as frivolous because the arguments D.L. raises have already been raised and lost in many other cases over and over again.

As a sanction, the court enters an expanded pre-filing order against D.L. that applies even to cases where he is represented by counsel! Code of Civil Procedure § 391.7 facially authorizes pre-filing orders only against pro se filings, on the theory that the ethical obligations of lawyers should be enough to prevent truly vexatious filings. But prior cases permit expanded orders when a vexatious litigant recruits attorneys to act as “puppets” in the filing of new frivolous litigation.

Dicta in the Supreme Court’s recent decision in John v. Superior Court, 63 Cal. 4th 91 (2016), doesn’t bode otherwise. There, the court held that a pre-filing order doesn’t apply to an appeal in a case where the vexatious litigant appeals a judgment in a case where he is a defendant. In passing, the Court referenced that “the “vexatious litigant statutory scheme [citation] applies exclusively to self-represented litigants.” But that statement alone doesn’t mean that the scheme can’t apply when attorneys act a mere puppets to vexatious litigants without exercising any independent professional judgment.

In any event, the court here finds that the puppet standard is met because the attorneys representing D.L. are just regurgitating old arguments that D.L. has made and lost on in a bunch of old resolved cases. Moreover, since prior orders have been ineffective, the court further notes that it can impose the limits under its inherent powers, as a means necessary to protect from abuse of the judicial process. But the expanded order applies only to additional filings in connection with the long-dead dispute that underlies this case.

In addition, the court issues $10,000 in monetary sanctions against the disbarred lawyer and orders the opinion sent to the state bar, lest he seek reinstatement at some point in the future.

Appeal dismissed and sanctions awarded.

Wednesday, June 21, 2017

Stretching to Compel Third Party Arb

Garcia v. Pexco, LLC, No. G052872 (D4d3 May 16, 2017)

Temp works for Temp Service. He brings a wage-and-hour class action against Temp Service and a Company where he was assigned to work. The employment contract between Temp and Temp Service has an arbitration clause with a class action waiver. Company isn’t a party, but joins Temp Service’s motion to compel, which the trial court grants. 

Tuesday, June 20, 2017

Lien Filing Triggers Limited Civil SLAPP

O'Neil-Rosales v. Citibank (South Dakota) N.A., No. JAD17-03 (L.A. Super. App. Div. May 10, 2017)

Appellate department decision affirming an appeal of a granted anti-SLAPP motion in a limited civil case brought under the federal Fair Debt Collection Practices Act and California’s Rosenthal Fair Debt Collection Practices Act. Because the underlying act was recording a lien, the case arose from protected activity. And because plaintiff’s allegations didn’t describe debt collection practices as defined in the statutes, she had not probability of prevailing. So the motion was appropriately granted.

Affirmed.

Monday, June 19, 2017

Coordination Good.

In re Ford Motor Warranty Cases, No. B277725 (D2d8 May 8, 2017)

Where federal court has multi-district litigation proceedings, California has “coordination” under Code of Civil Procedure § 404.1. When there’s a potential for coordination, the Judicial Council assigns the matter to a “coordination motion judge,” whose job it is to decide if coordination is merited. And if it is, the matter is then assigned to a “coordination trial judge” whose job is to manage the litigation, to decide common legal, factual, and procedural questions, and then to farm cases out for trial.