Tuesday, November 21, 2017

Et tu, Calder?

Hogue v. Hogue, No. C083285 (D3 Oct. 30, 2017) 

Wife fled her allegedly abusive Husband in Georgia and moved back in with her mom in California. Wife then sought a domestic violence restraining order in Sacto Superior Court. Husband specially appeared and moved to quash for lack of personal jurisdiction because there was no evidence of abuse that occurred in California, only Georgia. Husband’s only California contact related to any abuse was a video of him simulating suicide that he sent to Wife over the Internet, although at a time he knew she was in California. The superior court quashed for lack of personal jurisdiction.

Reversing the trial court, the Court of Appeal holds that the video was a sufficient minimum contact to satisfy due process. It met the test “under a species of specific jurisdiction in which a defendant acting elsewhere causes effects in California of a nature that are ‘exceptional’ and subject to ‘special regulation’ in this state.” The availability of domestic violence restraining orders “bespeaks California’s concern with an exceptional type of conduct that it subjects to special regulation.” So when Husband directed the video to Wife, who he knew was in California, with clear intent to cause her the kind of distress that a DVRO protects against, he did enough to merit jurisdiction here.


This result seems fine, but the nomenclature is a little weird. Isn’t this just a routine application of the “effects test” from Calder v. Jones, 465 U.S. 783 (1984)? I.e., when you undertake a tortious or wrongful act that is “expressly aimed” at harming someone in a particular state, you subject yourself to the jurisdiction of its courts so long as its generally fair to do so. See Pavlovich v. Superior Court, 29 Cal. 4th 262 (2002) (explaining the outer limits of the Calder test in California).

This “special regulation” test seems like both more and potentially less than that is required. Notably, the quote comes out of a Court of Appeal case from the ‘70s, so it predates Calder. Calder doesn’t require a state to “specially regulate” something for its effects test to apply—it is the defendant’s act of purposefully aiming harmful conduct into a state that matters. Notably, Calder dealt with plain ‘ol defamation of a TV celebrity, which hardly an area subject to some kind of special heighened protection under substantive law. 

On the other hand, even if there were a specific or special California regulation, without “expressly aimed acts by the defendant that constitute purposeful availment, federal due process would nonetheless preclude hailing him into court here. See HealthMarkets, Inc. v. Superior Court, 171 Cal. App. 4th 1160, 1171 n.2 (2009). Particularly since personal jurisdiction in California is a question of the outer limits of federal law, see Code Civ. Proc. § 410.10, the existence of particular state prerogatives seems beside the point.

Monday, November 20, 2017

Too Much Might as Well Be None

Baxter v. Genworth N. Am. Corp., No. A144744 (D1d3 Oct. 26, 2017)

This case turns on the enforceability of an arbitration clause in an employment agreement. It is really pro-employer. It bars the employee from even contacting other employees as part of an informal investigation. But it also severely curtails formal discovery, document discovery in particular. It imposes a four-step procedure to attempt to remediate any dispute that has the practical effect of eating up a bunch of the limitations period to file a complaint with the DFEH and making it impossible for the employee to get any relief through the administrative system. So unsurprisingly the court affirms the trial court’s finding that the arbitration agreement isn’t enforceable because it is unconscionable. 


Wednesday, November 15, 2017

You Have the Right to Demur

Butenschoen v. Flacker, No. BV 310862 (L.A. Super. App. Div. Oct. 16, 2017)

The trial court in a unlawful detainer case denied Tenant’s motion to quash service and ordered her to “file and serve an answer only” within five days. Instead of an answer, Tenant demurred. That led to a default, presumably for failure to answer. Tenant appealed, and the LA Superior Appellate Division reverses.

UD practice has some procedures that are particular to it. Their defining characteristic is very short deadlines. If a defendant moves to quash service and the motion is denied, she gets only five calendar days to file a responsive pleading. But one way in which UD is like ordinary civil procedure is that appropriate responsive pleadings include both an answer and a demurrer. So the trial court couldn’t effectively order Tenant to forego a demurrer, just because the motion to quash was denied. So the default’s no good.


Tuesday, November 14, 2017

It's Just Too Big a Mess

Kendall v. Scripps Health, No. D070390A (D4d1 Oct. 23, 2017)

A Patient got a $17,500 bill for services that the Hospital admitted would have been reimbursed at about $2k to Medicare or Medi-Cal. So he brought a class action to challenge the Hospital’s opaque billing practices. But the trial court denied class cert because common questions weren’t predominant and the class was not ascertainable. The Court of Appeal affirms on both grounds.

Thursday, November 9, 2017

Will the Judgment Ever Be Satisfied ...

Comercia Bank v. Runyon, No. G053691 (D4d3 Oct. 20, 2017)

Code of Civil Procedure §§ 881–883 provide procedures for joint judgment debtors other than joint tortfeasors—e.g., debtors jointly liable on a contract—to obtain contribution from one another. Section 883 requires an application for contribution to be filed within 30 days after “the judgment is satisfied in full.”

In this case, a joint judgement Debtor filed an application for contribution more than thirty days after the judgment been paid off to a zero balance, but while the creditor’s application to add costs to the judgment remained pending. The costs motion was ultimately partially granted to permit the addition of some costs, which had not been paid at the time Debtor filed his contribution application. But the trial court nonetheless denied the application as untimely.

That was error. A judgment can only be “satisfied in full” once—at the point where the creditor has been paid in full and the obligation fully extinguished. Once that happens, on written request of a debtor, the creditor is obliged to file and serve an acknowledgement of the full satisfaction. § 724.050(a)(1), (2). Te court here holds, as used in § 883, “satisfied in full” means the filing of that acknowledgement. A mere zero balance doesn’t cut it. And since the creditor hadn’t yet filed an acknowledgement when Debtor filed his contribution application, Debtor’s application was, in fact, timely under § 883. 

Reversed and remanded.

Friday, November 3, 2017

Outside the Clause, But Heading for Arb Nonetheless

Melendez v. S.F. Baseball Assocs. LLC, No. A149482 (D1d3 Oct. 17, 2017)

Security guards at AT&T Park bring a wage and hour case against the SF Giants. Plaintiffs, who are less than full time workers, are not consistently employed by the Giants. So their theory is that they are periodically “discharged,” and thus entitled to immediate payment of their wages under Labor Code § 701. There is a complication, however, because Plaintiffs are members of the SEIU and parties to a collective bargaining agreement. The Giants move to dismiss because the claim is preempted by the Labor Management Relations Act, or in the alternative, to compel arbitration under the terms of the CBA.

Friday, October 27, 2017

The Dead Hand of the Past

Ly v. Cnty. of Fresno, No. F072351 (D5 Oct. 12, 2017)

Plaintiffs are some prison guards who claim employment discrimination. But along with their FEHA claims, they also filed a workers’ comp appeal for the emotional injuries that arose from the same alleged discriminatory acts. The workers’ comp cases—which are an ALJ proceedings—moved faster than the discrimination case in court. The ALJs found adversely to plaintiffs in each of the workers comp cases, with each case finding that the adverse actions were not motivated by discriminatory animus.