Thursday, March 15, 2018

Post #800: An Issue of Duty

Klean Hollywood LLC v. Superior Court, No. B283816 (D2d4 Mar. 8, 2018) 

This isn’t about procedure, but it is my 800th post, and a good life lesson nonetheless:

If you are a heroin addict and check into a rehab, and then proceed to smuggle in heroin on which you OD, you don’t get to sue the rehab for negligence for failing to stop you from doing that.

Writ granted.

Wednesday, March 14, 2018

Ahh the CEQA

Heron Bay Homeowners Assoc. v. City of San Leandro, No. A143985 (D1d4 Jan. 12, 2018)

A Homeowners’ Association obtained a writ of mandate under CEQA, ordering a City and a Manufacturer to prepare an environmental impact report before beginning construction of a 100-foot tall wind turbine near the HOA’s neighborhood. City and Manufacturer gave up on the project. But the trial court nonetheless awarded the HOA its fees under the private attorney general doctrine, Code of Civil Procedure § 1021.5.

Tuesday, March 13, 2018

Big Class Certified Under Brinker

In re ABM Indus. Overtime Cases, No. A132387 (D1d4 Jan. 10, 2018)

This is a big wage and hour class action—it covers 35,000 janitors—and it has been pending for a long time—the complaint was filed in 2007 and the first notice of appeal in 2011. Indeed, the appeal has been pending so long that the trial court’s order denying class cert predates Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1049 (2012), the California Supreme Court’s seminal decision on class cert in wage-and-hour cases.

Monday, March 12, 2018

The Joys of § 425.16(i)

Cent. Valley Hospitalists v. Dignity Health, No. A148742 (D1d2 Jan. 9, 2018)

The complaint in this case was crappy. So crappy it wouldn’t hold up to a demurrer. Practically the only thing it was specific about was that it disclaimed being directed at any anti-SLAPP-worthy activity. But defendant filed both a demurrer and an anti-SLAPP motion anyway. The demurrer was granted, with leave. But the trial court denied the anti-SLAPP without prejudice, expressly stating that Defendant could bring a new anti-SLAPP against a better fleshed out complaint, if merited. Defendant, however, didn’t wait to SLAPP the new complaint. Instead, it took an appeal, as it could as a matter of right.

The Court of Appeal isn’t pleased. Defendant managed to waste 22 months with a stupid appeal of an anti-SLAPP motion it could have more meaningfully directed to a better complaint. Moreover, the complaint here, crappy as it was, did not state claims that arose from protected conduct. It indeed disclaimed that it did. So this appeal was a worthless waste of time. But the Court here declines to award any monetary sanctions and finds it sufficient to browbeat Defendant, mostly because Plaintiff didn’t really ask for them.


Friday, March 9, 2018

Victorious Non-Alter Ego Gets 1717 Fees

Burkhalter Kessler Clement & George LLP v. Hamilton, No. G054337 (D4d3 Jan. 8, 2018)

P sues D for breach of contract. P also sues AE on the same contract, on the theory that AE is D’s alter ego. The P/D contract has an attorney’s fee clause. P wins as to D on breach, but fails to prove that AE is D’s alter ego. 

Q: Who recovers fees?

A: P gets them against D, but AE gets them against P.

One of the upshots of Civil Code § 1717 is that if you try to enforce a contract with a fee provision in it against a nonparty (like an alleged alter ego) that party gets fees under the contract if it wins. That’s the case even if plaintiff wins on liability against the principal defendant, but fails to prove the nonparty is bound. Nothing in § 1717 prevents there from being two different prevailing parties on a claim by claim basis.

Thursday, March 8, 2018

A Demand for Everything Is Apparently Not an Offer of Compromise

Arave v. Merrill Lynch, Pierce, Fenner & Smith Inc., No E061677 (D4d2, as modified, Jan. 23, 2018)

First things first. A footnote at the beginning of this 95-page opinion says “We certify this opinion for publication under California Rules of Court, rules 8.1105(b) and 8.1110, except for parts I.B., I.C., I.D., I.E., I.F., I.G., II.A.1., II.A.2., II.A.4., II.A.5., II.A.6., II.B., II.C., II.D., II.E., II.F., and II.I.” (On a publication request the court struck II.C from the footnote.) 
So to figure out what is actually being published, you’ll need to make a list (like literally write it down) then scroll through the opinion and figure out by process of elimination what’s not excluded.

Monday, March 5, 2018

Taxpayers Have Standing to Litigate Consitutional Claims

Cal. DUI Lawyers Assoc. v. Dep’t of Motor Vehicles, No. B278092 (D2d4 Mar. 2, 2018)

The California DUI Lawyers Association brought a taxpayer action under Code of Civil Procedure § 526a, alleging that the DMV’s administrative license suspension procedures for DUI arrestees violate procedural due process. In particular, the CDLA argued that the hearing officers who adjudicate license suspension claims are not independent of the DMV and tasked with a hybrid investigative/adjudicatory function that makes them insufficiently neutral to satisfy due process. The DMV argued, and the trial court agreed, that CDLA didn’t have taxpayer standing because the DMV procedure was “legal,” i.e., consistent with the Vehicular Code. But that’s not right. A taxpayer can sue under § 526a to enjoin public agency acts that constitute “waste.” And “waste” includes not only acts that contravene statutory authority, but also acts that are unconstitutional. Since the CDLA made a colorable constitutional challenge, they had standing to bring their claims under § 526a. 

Reversed and remanded.