Monday, December 30, 2013

Not So Clear Sailing ...

Ruiz v. California State Automobile Association Inter-Insurance Bureau, No. A136275 (D1d4 Dec. 20, 2013)

This case a must-read for anyone who drafts class action settlement documents. The court of appeal holds that a so-called “clear sailing” attorneys’ fees clause in a class action settlement agreement does not implicitly waive the class counsel’s right to appeal the trial court’s fee award.

Friday, December 27, 2013

Apparently Fax Cover Sheets Have an Actual Purpose

Fry v. Superior Court, No. B248923 (Dec. 19, 2013) 

Division One of the Second District holds that faxing a form affidavit to the trial court's general fax filing number is insufficient to make a peremptory strike under Code of Civil Procedure § 170.6.

Friday, December 20, 2013

Dicta Didn't Dictate that Court Couldn't Say It Was Too Late to Arbitrate

Hong v. CJ CGV America Holdings, Inc., No B246945 (D2d5 Dec. 18, 2013)

In an appeal of the denial of a motion to compel arbitration, the court holds that under the Federal Arbitration Act, the issue of whether a party waived arbitration by substantially participating in litigation is an issue for the court, not the arbitrator.  

Too Late to the Collections Party to Strike the Judge

National Financial Lending, LLC v. Superior Court, No. D064226 (D4d1 as modified, Dec. 18, 2013)

Q: Can a third-party debtor from whom a judgment creditor tries to collect during post-judgment collections proceedings strike the judge under Code of Civil Procedure § 170.6. 

A: No.

The Appeal Clock Runs from a Voluntary Dismissal

Dattani v. Lee, No. A13852 (D1d3, as modified Jan 14, 2013)

After the trial court granted summary adjudication in favor of defendant, plaintiffs filed a notice of voluntary dismissal of the remainder of their claims without prejudice. Almost six months later, the court signed a proposed defense judgment prepared by plaintiffs’ counsel. Plaintiffs filed a notice of appeal three weeks later. The court of appeal dismisses the appeal as untimely. An appeal of the summary adjudication was not barred by the subsequent voluntary dismissal, because, unlike in the recent Kurwa v. Kislinger, 57 Cal. 4th 1097 (2013), the appeal was not rendered unripe by an agreement to toll the statute of limitations. But when combined with the summary adjudication order, plaintiffs’ voluntary dismissal of the remainder of their claims ended the case and was effective as a final appealable judgment as soon as the dismissal was submitted to the court.  Since the notice of appeal was filed more than 180 days after the dismissal, the appeal was untimely under Rule of Court 8.104(a)(1)(C).

Appeal dismissed.

Civil Code § 1714.10 Is Not a Shield in Attorney-Client Disputes

Stueve v. Berger Kahn, No. G046253 (D4d3 Dec. 18, 2013)

This case concerns an alleged Ponzi scheme set up by some lawyers to skim off the assets of the heirs to the Alta Dena Dairy fortune. The trial court granted defendants’ motion under Civil Code § 1714.10 to strike the conspiracy allegations from the complaint. The court of appeal reversed. According to the court, § 1714.10 “was enacted to combat the use of frivolous conspiracy claims that were brought as a tactical ploy against attorneys and their clients and that were designed to disrupt the attorney-client relationship.” (internal quotes omitted). It “performs a ‘gatekeeping’ function and requires a plaintiff to establish a reasonable probability of prevailing before he or she may pursue a ‘cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute.”
It works much like the anti-SLAPP statute. But the statute, by its own terms, is limited to when the attorney’s services are related to settling or litigating a “claim or dispute.” Because the alleged conspiracy here was based on the defendants ripping off their clients (the plaintiffs) through fraudulent estate planning, there was no claim or dispute, so the statute did not apply. That the defendants' conspiracy also included some of their other clients does not change the result.


The Superior Court Can't Play Lucy to the Regents' Charlie Brown

Regents of the University of California v. Superior Court, No. A138136 (D1d2, as modified Jan 14, 2013)

On the merits, the court of appeal holds that records of private venture capital funds in which the Regents invested some pension funds do not fall within the Public Records Act. But it also resolves a procedural issue. In the course of the  litigation, the Regents provisionally lodged some records under seal pursuant to Rule of Court 2.551(b)(4), pending a ruling on an application to seal them. The Regents' counsel made clear during argument that if the court declined to seal the records, the Regents wanted them returned under Rule of Court 2.551(b)(6). The superior court did not rule on the sealing application right away. When it ultimately ruled on the merits, however, it also ruled that the Regents were judicially estopped from requesting the return of their documents because they submitted them for the court to consider on the merits of the PRA request. 

In this the trial court erred. Judicial estoppel did not apply because the Regents never took an inconsistent position—they consistently claimed that the records were not public and that they wanted them returned without filing if the court would not seal them. The trial court had two options under the Rule: Order the records sealed or deny the application return the records under Rule 2.551(b)(6). If it took the latter tack it could not consider the returned records in addressing the merits. Of course, a trial court is free to delay its ruling on sealing, and there are often good reasons to do so. But there's a catch. The trial court might consider the provisionally lodged materials in ruling on the merits and also decide that the did not meet the standard for sealing. If that happens, and if the submitting party won't consent to the materials' public filing, the court will need to go back and reevaluate the merits without the provisionally sealed material. That, however, is the risk a trial court bears when it delays ruling on sealing.

Writ granted.

Why Write Fifty Pages but Decline to Publish?

Asahi Kasei Pharma Corp. v. Actelion Ltd., No. A133927 (D1d5, as modifed Jan. 16, 2013)

This is a very long and detailed opinion that is well worth reading if you litigate business torts. It addresses, among other things: instructional sanctions for failure to timely produce discovery; what to do when an expert relies on materials that are not produced because he is no longer able to obtain them; the requirement that hearsay evidence submitted for non-hearsay must be relevant as to those specific issues; hearsay exceptions for the effect on the listener, lay opinion in issues of law; and the sufficiency of the evidence on several damages issues. Unfortunately, the discussion on all of these issues (more than 50 pages of it) is contained in sections of the opinion that the court declines to publish. The only published section affirms
the trial court—in a cogent discussion that comprehensively reviews the case law—on some instructional issues regarding the elements of intentional interference with contract, the Applied Equipment rule that a defendant can’t interfere with its own contract, and the justification defense.


Postscript: On a publication request by a nonparty under Rule of Court 8.1120, the court published two subsections on the sufficiency of the evidence of lost profits. The rest of the opinion, however, remains unpublished.

Thursday, December 19, 2013

A Few Choice Words on the Standard of Review

Gaines v. Fidelity National Title Insurance Company, No. B244961 (D2d8 Dec. 12, 2013)

A divided panel upholds a trial court’s dismissal of most of the defendants in an action for failing to bring the case to trial within five years, but reverses as to one defendant who was added later in the case.

Wednesday, December 18, 2013

Text vs. Purpose in the Anti-SLAPP Regime
(We'll Need More than a Weatherman....)

Hunter v. CBS Broadcasting, No. B244832 (D2d7 Dec. 11, 2013)

The court of appeal holds that a TV station’s selection of its weather anchor is conduct in furtherance of its right to free speech in connection with an issue of public interest and thus that a discrimination complaint challenging its selection arises from protected activity under the anti-SLAPP statute.

Tuesday, December 10, 2013

Four for Four on Class Cert.

Williams v. Superior Court, No. B382577 (D2d8, as modified, Dec. 24, 2013)

For the fourth time in two months, the court of appeal reverses an order denying class certification in a wage and hour case where the plaintiff’s theory of liability was that the defendant maintained an unlawful overtime policy.

Thursday, December 5, 2013

Same Song. Different Band.

Martinez v. Joe’s Crab Shack Holdings, No. B242807 (D2d7 Dec. 4, 2013)

This is yet another reversal of a denial of class certification in a wage-and-hour class action. As in the October decision in the Benton case, which was decided by the same division and is cited in the opinion, as well as last week’s Jones case, the court here holds that the class cert decision is governed by the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), which the court reads as encouraging the use of the class action vehicle in wage and hour disputes. Under Brinker, when deciding whether common issues predominate so as to merit class treatment, the court must direct its inquiry to the plaintiff’s theory of liability and not to idiosyncratic concerns often raised by defendants, which generally go only to individualized damages. Plaintiff’s theory here is that Joe’s Crab Shack had a policy of classifying assistant managers as exempt executive employees, even though the bulk of their duties had all the indicia of non-exempt work. Because that is the kind of question that can be decided on a class-wide basis, the trial court erred in declining to certify a class. That said, the court also suggests that the class maybe shouldn’t be as broad as the one plaintiff defined because the definition included some more senior managers who have more concrete management responsibilities. But the trial court could deal with that on remand.

Reversed and remanded.

Tuesday, December 3, 2013

Plaintiffs' Wage & Hour Play: Stick with the Policy

Jones v. Farmers Insurance Exchange, No. B237765 (D2d3 Nov. 26, 2013)

Finding that the plaintiff’s wage and hour case implicated a class-wide policy, the court of appeal reverses a trial court’s denial of class certification.

Sanctions Never Seem to Stick, the Sequel

Optimal Markets v. Salant, No. H038571 (D6 Nov. 26, 2013)

The Sixth District holds that Code of Civil Procedure § 128.7 does not authorize sanctions against an attorney who substituted into a case and frivolously prosecuted it after it was sent to arbitration.

Monday, December 2, 2013

Judicial Restraint

Kurz v. Syrus Systems, Inc., No. H038694 (D6 Nov. 22, 2013)

District Six interprets a provision in the Unemployment Insurance Code to bar the use of an unemployment insurance appeal judgment as evidence in a later case for malicious prosecution. Without that evidence the party bringing the claim could not establish that the appeal had been terminated in its favor. Because that party could not show a likelihood of success, the court holds that a SLAPP motion attacking the claim should have been granted.

A Good Statement of the Standard for Pleading Fraud

Moncada v. West Coast Quartz Corp., No. H03728 (D6 Nov. 22, 2013)

This is a fact-intense 2-1 opinion that reverses a trial court’s order granting of a demurrer on a number of causes of action. There’s not much of procedural interest, although the opinion does provide a particularly clear sound bite on the heightened pleading requirement for fraud: “Every element of a fraud cause of action must be specifically pleaded. This pleading requirement of specificity applies not only to the alleged misrepresentation, but also to the elements of causation and damage.” (citations omitted). That’s a good quotable that will likely work its way into many a demurrer brief.

Sanctions Just Never Seem to Stick

In re Marriage of Bianco, No. D062061 (D4d1 Nov. 22, 2013)

An attorney drew a $43,000 sanction from the trial court for hiring a suspended attorney as her co-counsel in a divorce case. That violated California Rule of Professional Conduct 1-300(A). The trial court purported to issue the sanction under California Rule of Court 2.30(b). But that rule permits sanctions only for violation of the Rules of Court (and not the rules of Professional Conduct) and only to certain kinds of cases, which do not include family law proceedings. Since Rule 2.30 did not authorize the sanction, it was improperly levied.


Wednesday, November 20, 2013

There Is No Newton's Third Law of Summary Judgment

Cuff v. Grossmont Union High School District, No. D062278 (D4d1 Nov. 18, 2013)

Among other things, the court of appeal holds that a “cross-motion” for summary judgment made in the plaintiff’s opposition brief less than seventy-five days before the hearing was properly denied as untimely.

Tuesday, November 19, 2013

Review Granted . . .

In the past month or so, the California Supreme Court has granted review in two previously covered cases (on the issues as described in the Court's pending issues summary):

City of Perris v. Stamper (Rev. Granted Nov. 13, 2013): This case presents the following issues: (1) In this eminent domain case, was the constitutionality of the dedication requirement—that the city claimed it would have required in order to grant the property owner permission to put the property to a higher use—a question that had to be resolved by the jury pursuant to article I, section 19, of the California Constitution? (2) Was the dedication requirement a “project effect” that the eminent domain law required to be ignored in determining just compensation? 

Williams v. Chino Valley Independent Fire District (Rev. Granted, Oct. 16, 2013): This case presents the following issue: Is a prevailing defendant in an action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) required to show that the plaintiff’s claim was frivolous, unreasonable, or groundless in order to recover ordinary litigation costs?

Friday, November 15, 2013

Serving the Homeless . . .

Sweeting v. Murat, No. B243034 (D2d4 Nov. 13, 2013)

An apparently homeless pro per sued the operators of a storage facility for the loss of several shipping containers allegedly worth $2.5 million. At some point in the litigation, plaintiff filed a change of address form, listing his address as a “unit” at a Huntington Beach address, which ultimately turned out to be a box at a UPS store. When defendants moved for summary judgment, their proof of service attested that their attorney personally served plaintiff at this address by leaving a copy of the motion for him there. Plaintiff did not timely file an opposition—he ultimately filed something just two days before the calendared hearing. The trial judge exercised his discretion to decline to consider late-filed papers and—having found that defendants met their initial burden under Code of Civil Procedure § 437c(p)(2)—granted the motion as effectively unopposed. Plaintiff appealed, arguing principally that he had never been properly served with the motion.

The court of appeal noted that the personal service statute, Code of Civil Procedure § 1011 creates a “hierarchy of methods for personal service on a party, if delivery is not made directly to the party.” If no particular method of personal service has been specifically provided in the case—as was the case here—service could be effected by delivering the papers to the party’s residence between 8 a.m. and 6 p.m. and leaving them with someone who is at least eighteen years old. The defendants here did so when their attorney delivered the papers to someone at the UPS store the plaintiff listed as his address in the change-of-address form. The fact that the address was just a mailbox at a UPS store did not render the service insufficient. The court noted that some statutes dealing with the service of a summons—such as Code of Civil Procedure § 415.20(a), which provides for so-called “substitute service” at a “usual mailing address”—preclude delivery to a post office box. But even these statutes have been read to mean that only “when the usual mailing address is a United States Postal Service postal box that personal delivery to the mailing address does not constitute personal service; service at a private or commercial post office box is allowed.”


Angry Neighbor Can't SLAPP a Prior Version of a Complaint

JKC3H8 v. Colton, No. C071010 (D3 Nov. 13, 2013)

In an ugly dispute over the use of an unpaved road in Ripon, plaintiff’s first complaint made a bunch of allegations suggesting that its claims arose in part from the defendant having obtained a restraining order. But in an amendment, plaintiff took those allegations out. Then defendant filed a SLAPP motion, relying in part on the allegations in the original complaint to argue that the cause of action arose from protected activity. The trial court denied the motion on the merits. But the court of appeal held that the removal of the problematic allegations effectively rendered the motion moot since the complaint at issue did not arise from protected activity. The court explained that although a plaintiff can’t amend to avoid a SLAPP motion after it has been filed because it would permit a subterfuge of the purposes of the SLAPP statute, the same rationale does not apply when allegations are excised from a complaint by amendment before a SLAPP motion was even filed. So the motion was a nonstarter and the trial court should not have reached the merits.

Vacated as moot.

Wednesday, November 13, 2013

A Glorious Victory for the Free Press...

Hupp v. Freedom Communications, No. E057390 (D4d2 Nov. 7 2013)

An apparently vexatious litigant got into some kind of a flame war with another reader on the comment section to an article on municipal pensions posted on the OC Register’s website. When the Register refused to remove the other reader’s comments, Mr. Litigant sued the Register (as litigants tend to do) for violations of its user agreement. The Register filed a SLAPP motion, which the trial court granted. Mr. Litigant appealed arguing, among other things, that he had never been properly served with the motion. The court of appeal affirmed.

As to the SLAPP motion, the court held that maintaining a forum for discussion of issues of public interest is a “quintessential way to facilitate” free speech rights, and is thus within the ambit of the SLAPP statute as conduct in furtherance of free speech in connection with a public issue under Code of Civil Procedure § 425.16(e)(4). Moving to the merits, the court noted that the Communications Decency Act, 47 U.S.C. § 230, shields distributors of Internet content from liability for their publication of third-party statements. Since there was no probability of Mr. Litigant prevailing on his claim, the SLAPP motion was properly granted.

Mr. Litigant’s argument about service was also without merit. Even if, as he claimed, he was not properly served with the motion when it was filed, he admitted that he was subsequently served via FedEx more than nine court days before the motion was heard. So he had adequate actual notice to defend against the motion.


Another CBA that Isn't Clear Enough to Require Arbitration of FEHA Claims

Volpei v. County of Ventura, No. B243954 (D2d6 Nov. 7, 2013)

This case deals with whether a union employee's statutory discrimination claims can be compelled into arbitration based on an arbitration clause in a collective bargaining agreement. It is in all principle respects the same as last month’s Mendez decision. The court of appeal affirms the trial court’s denial of an employer’s motion to compel arbitration of a union employee’s Fair Housing & Employment Act claims. Because the collective bargaining agreement did provide a clear and unmistakable waiver of the employee’s right to a judicial forum for his statutory claims, the trial court correctly denied the motion to compel.


A Price Too High for a Continuance

Garcia v. Cruz, No. BV030474 (L.A. Super. App. Div. Nov. 6, 2013)

In an unlawful detainer case, the trial court struck the defendant’s jury demand because she did not satisfy a court-imposed condition that she post $2,550 in unpaid rent with the court as a condition to obtaining a trial continuance. Defendant had timely demanded a jury trial and obtained a waiver of jury fees, so the right to jury trial attached. Although Code of Civil Procedure § 1170.5 gives the court the discretion to require an unlawful detainer defendant seeking a continuance to post damages, those damages are limited to the damages that would be incurred as a result of the continuance—i.e., the rent that would accrue between the original and continued trial dates. Section 1170.5 did not permit the court to require the defendant to post all back rent allegedly due. Further, the remedy for the defendant’s failure to post is not striking the defendant’s jury demand. It is, instead, setting the case for trial within fifteen days of the date on which the payment was due to be posted. The trial court thus erred in striking the defendant’s jury demand and holding a bench trial.


Friday, November 8, 2013

State Loses Major Gun Battle. And $40.

Parker v. State of California, No. F062490 (D5 Nov. 6, 2011)

In a split decision affirming a trial court’s ruling that some gun and ammo laws are unconstitutionally vague on their face, the court also addressed whether the trial court properly declined to tax a $40 filing fee as an unrecoverable cost. The fee had been paid by plaintiff in connection with a preliminary injunction motion that was withdrawn after the trial court indicated that it was inclined to deny it. Plaintiff ultimately prevailed in the action, and filing fees are generally recoverable by a prevailing party as costs under
Code of Civil Procedure § 1033.5(a)(5). But the state nonetheless argued that the plaintiff should not have been permitted to recover the fee as a cost. According to the State, by withdrawing the PI motion plaintiff was effectively conceding that it was not "reasonably necessary to the conduct of the litigation" to incur the fee under § 1033.5(c)(2). The trial court apparently disagreed and declined to tax the fee as a cost. The court of appeal affirmed, reasoning that the trial court had the discretion to decline to tax the cost as a safeguard against unfairly shifting litigation costs from one party to another. Indeed, the trial court could have readily decided that, although the motion was unsuccessful, it laid the groundwork for plaintiff’s ultimately successful summary adjudication motion on the merits. So the $40 fee could properly be included in the costs awarded to plaintiff.


Exes and Ex Partes Don't Mix

Vesco v. Superior Court, No. B249449 (D2d6 Nov. 6, 2013)

California Rule of Court 1.100 allows disabled litigants to apply to accommodations to ensure they have equal access to the court. The applicant can submit confidential medical information in support of such a request, and disclosure of that information is limited to “those involved in the accommodation process.” Plaintiff in this case is trying to kick his ex out of a home he owns. The ex filed an ex parte application seeking a trial continuance as a Rule 1.100 accommodation. She did not serve plaintiff with the documents explaining the basis of her request. Plaintiff sought access to the documents, which the trial court denied. Plaintiff then sought a writ, which was summarily denied by the court of appeal. Then the ex sought yet another ex parte continuance, and the process repeated the same way a second time around. But this time the court of appeal took up the writ. Since the accommodation sought by the ex—a continuance—was at the expense of the plaintiff, he was clearly “involved in the accommodation process” under Rule of Court 1.100(c)(4). He thus should have been given notice and an opportunity to view the documents that formed the basis of the ex’s request, in order to be able to effectively challenge the request for a continuance.

Writ granted.

The Capcity of a Judgment Assginee Against an Obligor Follows that of the Assignor, the Judgment Obligee

Cal-Western Business Services, Inc. v. Corning Capital Group, No. B241714 (D2d7 Nov. 6, 2013)

Plaintiff is the assignee of a judgment that it is trying to enforce against defendant judgment debtor. Unfortunately for the plaintiff, the corporate status of the assignor of the judgment was suspended for nonpayment of taxes prior to the assignment and has never since been reinstated. After a jury rendered a verdict against some of the defendants, defendants raised the issue that as an assignee enforcing the rights from a suspended corporation, plaintiff lacked capacity to sue. The trial court agreed and dismissed the case. On appeal the court held that the trial court did not abuse its discretion in permitting the defendants to belatedly raise the capacity issue because plaintiff clearly indicated that it had no intention of paying the assignor’s back taxes. And because an assignee takes subject to any defenses applicable to the assignor, the assignor’s lack of capacity could be asserted against the plaintiff, so the case was properly dismissed.


Thursday, November 7, 2013

There Goes My (Smoking) Gun ...

Nevarrez v. San Marino Skilled Nursing & Wellness Centre, No. B235372 (D2d4 Nov. 4, 2013)

This is an appeal after a jury trial that awarded plaintiff almost $4.4 million in damages stemming from allegations of negligence, elder abuse, and statutory violations at a nursing home. As relevant here, the court of appeal upheld challenges to two jury instructions, but reversed on two theories of liability because the trial court abused its discretion in admitting prejudicial evidence regarding prior regulatory violations at the facility. In doing so, it missed an opportunity to clarify the law of evidence.

I'm from the Company, and I'm Here to Help...

Yanez v. Plummer, No. C070726 (D3 Nov. 5, 2013)

Plaintiff was a witness to a workplace accident. He gave two written statements in litigation over that accident, one of which suggested that he actually saw the injured party slip and fall on some oil. But while preparing for his deposition plaintiff told the company’s attorney—who was also representing plaintiff at the deposition in his individual capacity—that he had not actually seen the fall. The attorney told the plaintiff that he would protect him at the deposition and that the company would not punish him for truthful testimony. At the deposition, the injured worker’s counsel elicited that the plaintiff did not see the fall, and went no further. But then on redirect, the company lawyer brought out the prior written statement that suggested plaintiff had actually seen the fall, effectively impeaching his own client. 

Plaintiff was subsequently disciplined and fired for giving dishonest testimony. In addition to suing the company for wrongful termination, Plaintiff sued the attorney for malpractice.  The attorney moved for summary judgment arguing that plaintiff could not establish a breach of duty or causation. Although the trial court agreed, the court of appeal reversed. The evidence was sufficient to create a dispute of fact that the attorney had an unwaived conflict of interest between the plaintiff and the company. And there was at least a fact dispute that the attorney’s decision to impeach the plaintiff in the deposition with his prior written statement was, in fact, a but-for and proximate cause of the plaintiff’s termination. 

Reversed and remanded.

Wednesday, November 6, 2013

Victory for the First Amendment, Just a Little Too Late

Steiner v. Superior Court, No. B235347 (D2d6 as modified, Nov. 26, 2013)

The plaintiffs’ lawyer in an asbestos case has some pages on her website trumpeting her multi-million victories in automobile brake exposure cases. The jury was instructed, per CACI 100, that they should not use the Internet to find out about the case or the attorneys. But the defendant was nonetheless concerned that jurors might Google the attorney and see these pages. So it asked the trial court to order her to take the pages down. The court agreed, and the plaintiffs sought a writ. Although the trial ended while the writ was pending, the court of appeal reached the issue under the public interest exception to the mootness doctrine. The court, applying the commercial speech standard set out in the Supreme Court’s Central Hudson decision, found that the trial court violated the lawyer’s first amendment rights by ordering a prior restraint. Since there were less restrictive methods to protect the interest in a fair trial—namely, instructing the jury under CACI 100—the restraint was unconstitutional. So if the case wasn’t moot, the writ would have been granted.

Writ denied as moot.

Navigating the Post-Trial Minefield

Montoya v. Barragan, No. B237495 (D2d1 Oct. 29, 2013)

The court of appeal affirms an order granting a new trial in a case where the judge entered judgment based on jury polling without a written verdict. In doing so it also makes some commentary on the sufficiency of the court’s statement of reasons in granting a new trial on the insufficiency of the evidence.

Tuesday, November 5, 2013

A Disuniform System of Citation

It appears that the good folks at the Sixth District Appellate Program have posted the most recent edition of the California Style Manual online. 

I have to say, I’ve always hated the way Yellow Book-style citations look, what with all of the extra parentheses, brackets and supras. The book is also maddeningly imprecise. The rule on abbreviations is, literally, use exactly whatever is on the top of the page in the reporter. And there are all kinds of annoying inconsistencies. For instance, § 1.1[C] explains short cites and provides some examples. In one example, the short cite is after the first cite inside a parenthetical proceeded by “hereinafter.” But in the next example, no “hereinafter.” Why? Doesn’t say.

Even though it’s not technically required, see Cal. R. Ct. 1.200 (giving a choice between the Yellow- and Blue- books “at the option of the party filling the document”), I’ve resigned myself to using the Yellow Book in California appellate briefs because to not do so feels like swimming upstream. But until someone tells me otherwise, it’s Bluebook all the way in superior court (and on this blog too). No doubt, the Bluebook is a mishmash of arbitrary rules made up by senior law review editors for the purpose of hazing junior law review editors. But at least—with a notable exception*—it is a uniform system of citation, as its subtitle proclaims. And it has a decent index.

*The Bluebook is agnostic on whether page ranges can be expressed by a hyphen or an en-dash. See Rule 3.2(a). I can’t tell you how many hours of my life I have wasted ironing out inconsistent dashing in briefs because of this stupid rule. It is particularly frustrating since—as the Chicago Manual of Style Rule 9.58 explains—the proper punctuation for numerical ranges is only the en-dash.

Friday, November 1, 2013

More Hospital Arbitration...

Goldman v. Sunbridge Healthcare, LLC, No. C069970 (D3 Oct. 28, 2013)

This case is very similar to the Young case decided by District 6 on the same day. It involves whether wrongful death claims arising from the treatment of a nursing home patient can be compelled to arbitration based on the signature of his wife, who held a power of attorney under an advance medical directive. As in Young, the court here holds that a non-signatory cannot be compelled to arbitrate because the person who signed the agreement with the arbitration clause did not have authority to bind a wrongful death decedent. The advance directives that the defendants relied on did not come into effect until the patient becomes incompetent, and there was no evidence that that was the case. Nor was the fact that the signatory was the wife of the patient sufficient to create an agency. Nor did the wife, in signing the forms for her husband, agree to arbitrate her own personal capacity survivor claims against the defendants. 


Towards a Unifed Theory of Equitable Estoppel

Young v. Horizon Services Inc., No. H038736 (D6 Oct. 28, 2013)

This is a pretty routine opinion about whether a non-signatory can be compelled to an arbitration clause contained in a document allegedly signed on her behalf. But in the course of discussing one theory under which a non-signatory can be compelled to arbitrate—equitable estoppel—the court provides a textbook illustration about the development of California decisional law creates traps for the unwary. And, indeed, for the wary too.

Wednesday, October 23, 2013

When the Man Gives Him Lemons, Justice Liu Makes Lemonade

Sonic-Calabasas  A, Inc. v. Moreno, S174475 (SC Oct. 17, 2013)

On remand from the US Supreme Court, the California Supreme Court unanimously reverses its prior holding that an arbitration clause's waiver of rights to administrative remedies for the collection of unpaid wages renders the clause per se unconscionable. But in a 5-2 ruling, the court holds that waiver of those procedures remains a factor, among many others, that can be considered in deciding whether the contract is unconscionable.

Tuesday, October 22, 2013

A Bleak House Gets a Little Bleaker

Wallis v. PHL Associates, Inc., No. C066545 (D3 Oct. 17, 2013)

This is an appeal of a case that was originally filed in 1994! Most of the opinion is unpublished but the published section deals with when a statement of decision must be requested under Code of Civil Procedure § 632. 

When It Comes to Class Cert, It's All About the Policy

Benton v. Telecom Network Specialists, No. B242441 (D2d7 October 16, 2013)

Division seven of district two reverses a trial court’s order denying class certification because common interests did not predominate.

Ruling Out the Alternatives

Macguire v. More-Gas Investments, LLC, No. C067865 (D3 Oct. 15, 2013)

The court of appeal reverses an order granting summary judgment because the moving defendant failed to meet its initial burden. The defendant had moved on the ground that the provision of a contract upon which the plaintiff was suing was an unenforceable penalty clause and not a clause permitting reasonable liquidated damages. But there is a third possibility depending on the circumstances of the case: The provision could have been a valid clause provision for alternative performance. Because the motion did not address this possibility, the defendant had not met its burden under Code of Civil Procedure § 437c(p)(2) to show that the cause of action cannot be established because the clause at issue was an unenforceable penalty provision. Thus—although the procedural aspect merits little discussion—the case nonetheless stands for the proposition that when a plaintiff can prevail on more than one alternate legal theory on a cause of action, a moving defendant must come forward with evidence that would establish that the plaintiff could not prevail under either theory. 


Not a Question of Law, But We'll Decide it Anyway

State of California ex re Department of California Highway Patrol v. Superior Court, No. G047922 (D4d3 Oct. 15, 2013)

This opinion reversing a denial of summary judgment, published at the petitioner’s request under Rule of Court 8.1105(c), mostly deals with whether a tow truck driver is an employee of the Highway Patrol for the purposes of respondeat superior. In denying the Highway Patrol’s summary judgment motion, the trial court had certified the question under Code of Civil Procedure § 166.1, which permits a trial judge to “certify a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.” But in a footnote, the court of appeal determines that the issue presented—whether or not the defendant was an employee—is not a “controlling question of law” and thus interlocutory review under §166.1 is inappropriate. In any event, the court considers the appeal as a writ and orders the court on remand to grant the motion.

Writ granted.

CBA Not Clear Enough to Make FEHA Claims Arbitrable

Mendez v. Mid-Wishire Health Care Center, No. B243144 (D2d7 Oct. 15, 2013)

Relying on U.S. Supreme Court precedent, the court of appeal holds that an arbitration clause in a collective bargaining agreement did not apply to a fired employee’s statutory claims under the Fair Employment and Housing Act (FEHA). Although there generally is a presumption that claims arising out of a collective bargaining agreement are arbitrable, that presumption does not apply to statutory employment discrimination claims. A collective bargaining agreement can make such claims arbitrable, but it must clearly reflect an express intention to do so. The court notes that the U.S. Supreme Court cases that state that rule, such as Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), have not been overruled by AT&T Mobility LLC v. Concepcion, ___ U.S. ___, 131 S. Ct. 1740 (2011), which placed preemption limits on state law rules of contract interpretation that unequally burden arbitration agreements. Thus, because the collective bargaining agreement in this case lacked the requisite clear expression to make FEHA claims arbitrable, the trial court did not err in declining to compel these claims to arbitration. 


Sunday, October 20, 2013

Insurer that Refused to Return Calls Held to § 998 Offer Above Policy Limits

Aguilar v. Gostischef, No. B238853 (D2d8 Oct. 11, 2013)

The court of appeal holds that a Code of Civil Procedure § 998 offer to an insurer for more than policy limits is not in bad faith when there is a reasonable basis to believe that an insurer’s prior failures to communicate regarding a within-limits settlement could provide a basis for liability against the insurer exceeding its policy limits.

Brothers Are Indispensable Parties in Family Showdown

Morrical v. Rogers, A137011 (D1d5 Oct. 10, 2013)

This case is a fight over the control of a very valuable family insurance business. The opinion features more characters than a Pynchon novel, and its plot is only slightly less confusing. To oversimplify (a little), the sister sued to invalidate a board election that resulted in the election of the defendants—some money managers that had dealings with her brothers. The grounds were that the brothers—who were the other shareholders in the company—had engaged in self-dealing in transactions related to the election, which rendered the election invalid under some provisions of the Corporations Code. But even though it was the brothers whose alleged fiduciary breaches formed the basis of the attempt to invalidate the election, only the money managers and their company were named as defendants. The brothers were not joined. After the court decided some issues under the Corporations Code, it went on to say that the brothers should have been joined as indispensable parties under Code of Civil Procedure § 389. Because the brothers’ breaches of their fiduciary duties as directors and majority shareholders formed the very basis of the election challenge, they were potentially prejudiced by the sister’s failure to join them. Indeed, their rights were necessarily affected by the judgment. Further, the fact that the brothers had litigation interests that were in line with the named defendants did not mean that the defendants adequately represented their interests in the case. 

Reversed with orders to join the brothers on remand or dismiss.

Prevailing Defendant in Declaratory Relief Action for Invalidity Entitled to Fees under Civil Code § 1717

Eden Township Healthcare District v. Eden Medical Center, No. A136695 (D1d1 Oct. 9, 2013)

In a complicated hospital litigation with a long backstory, the plaintiff sued the defendant for injunctive and declaratory relief, arguing that a contract between the parties was void under a Government Code provision invalidating contracts tarnished by conflicts of interest. The defendant sought and obtained summary judgment on the invalidity claim, which was affirmed on appeal. The defendant sought attorneys’ fees under Civil Code § 1717 on the grounds that the contract that the plaintiff sought to void had a provision awarding fees to a prevailing party. When the superior court denied the motion, the defendant appealed. The court held, first, that an action to invalidate a contract is an “action on a contract” such that § 1717 comes into play. As the court notes, “it is difficult to think of an action that is more likely to be characterized as an ‘action on a contract’ than one in which the party bringing the action explicitly seeks to have the subject contract declared void and invalid in its entirety.” Second, the court rejected the argument that § 1717 should not apply because the defendant in this case had never sued the plaintiff for breach of the implicated contract. A lawsuit to enforce the contract is not required to invoke the mutuality rule of § 1717. If the contract awards fees to a prevailing party, any prevailing party in a suit “on the contract” is entitled to a fee award. “[A]warding attorney fees to the party who successfully thwarts the other party’s efforts to have a contract declared void at its inception is consistent with the mutuality of remedy doctrine.” 

Reversed and remanded for a calculation of fees.

Monday, October 14, 2013

Legal Say-So in Declarations Is Not Evidence

Davis v. Kiewit Pacific Co., No. D062388 (D4d1 Oct. 8, 2013)

In an otherwise procedurally uninteresting employment opinion that was recently order published by the Acting Presiding Justice Nares, the court addressed the initial burden of a party moving for summary adjudication. As has been well-established since the Supreme Court's 2001 Aguilar decision—unlike the federal Celotex standard, where a movant can just “point” to the absence of evidence—in California, the moving party must come forward with evidence to meet its initial burden under Code of Civil Procedure § 437c(c). Applying that rule, the court holds that a declaration that merely parrots the relevant legal standard—here, that the defendant did not have “substantial discretionary authority over decisions” affecting the plaintiff’s work—is insufficient to meet the moving party’s burden. In order to shift the burden, a declaration needs to contain testimony that actually states evidentiary facts that would warrant an inference that the standard has, in fact, been met. Reversed.

998 Offers Need No Dotted Lines

Rouland v. Pacific Specialty Insurance Co., No G047919 (D4d3 Oct. 7, 2013)

Defendant in an insurance case made an offer of judgment under Code of Civil Procedure § 998. The offer instructed the plaintiff to file the offer and notice of its acceptance with the trial court if plaintiff accepted it. The plaintiff did not respond and defendant prevailed at trial. When the insurer sought its expert fees under § 998’s cost-shifting penalties, the trial court denied the motion, reasoning that the offer was invalid because it did not provide a signature block for acceptance. The court of appeal reversed, finding that § 998 requires only that the offeror specify the method in which the offer could be accepted and that the acceptance be in a writing signed by the accepting party or its lawyer.  There is no specific signature block requirement and, although there is a judicial council form that has a signature line, since that is not a mandatory form, its formatting is not dispositive. As the offer here required an acceptance that satisfied these requirements, it was valid. Reversed and remanded to determine whether the court should exercise its discretion to award expert fees.

An Extraordinary Writ Indeed

City of Bell v. Superior Court, B247362 (D2d3, as modified, Oct. 25, 2013)

In the civil litigation over the the well-remunerated tenure of Robert Rizzo as the city manager of Bell, Rizzo sought a declaration that the City was required to provide him with a defense in the various other litigations against Rizzo, including litigations brought by the city itself. After the trial court struck the City’s jury demand on that claim, the court of appeal entertained the City's writ on whether it was entitled to a jury trial. But the court never reached the jury issue, because, after taking up the writ, ordering a response, issuing an OSC, and ordering supplemental briefing on a host of different issues, it decided that, as a matter of law, the City did not need tender a defense, so no trial was necessary. The opinion isn’t of particular note procedurally, but it is an interesting exception to the general rule about the limited willingness of appellate courts to entertain writ review. Writ granted.

The Bar Looks Out for Itself...

Yee v. Cheung, D060989 (D4d1 Oct. 4, 2013)

In an appeal from a granted SLAPP motion and a sustained demurrer, the court of appeal holds that the statute of limitations for “wrongful act or omission . . . arising in the performance of professional services” in Code of Civil Procedure § 340.6 applies to a malicious prosecution action brought against an attorney, even though other cases have decided that the longer statute of limitations in § 335.1 applies to malicious prosecution cases against non-attorneys. The court also holds that the denial of the defendant’s nonsuit motion prior to a defense jury verdict in the underlying case was sufficient evidence that the lawsuit had probable cause. Even though the case was ultimately unsuccessful, the denial of nonsuit showed that the case had more than minimal merit and plaintiff failed to come forward with evidence showing that the interim ruling was the result of fraudulent or perjured evidence. Affirmed.

Friday, October 11, 2013

Legal Misadventures in Social Media

GetFugu, Inc. v. Patton Boggs LLP, No. B231794 (D2d3, upon rehearing Oct. 3, 2013)

The court of appeal partially reverses a trial court's granting of a SLAPP motion because the plaintiff established a prima facie case that it could prevail on its claim of defamation against a lawyer and his firm.

Thursday, October 10, 2013

Supreme Court Puts the Kybosh on Phony-Baloney Appeals

Kurwa v. Kislinger, No. S201619 (SC Oct. 3, 2013)

Resolving a recent split of authority, the Supreme Court holds that parties cannot manufacture jurisdiction for an interlocutory appeal by dismissing pending causes of action without prejudice and agreeing to toll the statute of limitations on them until after the appeal is resolved. 

Tuesday, October 8, 2013

Friday, September 27, 2013

That's Not Unconscionable . . .

Peng v. First Republic Bank, No. A135503 (D1d1 Sept. 26, 2013)

After plaintiff sued for employment discrimination, the employer sought to compel arbitration based on an arbitration clause in her employment agreement. The superior court, finding that the clause was both substantively and procedurally unconscionable, denied the motion. On review, the court of appeal held that the contract was not procedurally unconscionable simply because it did not attach the applicable AAA arbitration rules. Nor did the fact that the employer could unilaterally modify the conditions of the employment contract make the contract substantively unconscionable, particularly when there was no evidence that the agreement was actually modified by the employer.


Three Years Late in the Race to the Courthouse

Mave Enterprises, Inc. v. Travelers Indemnity Co., No. B241807 (D2d1, as modified, Oct. 23, 2013)

The court of appeal holds that the superior court did not err by confirming an arbitral award, even though the defendant had filed a parallel petition to vacate the award in federal court. Because the superior court had obtained jurisdiction over the subject matter of the action years before the federal case was filed, it did not abuse its discretion in refusing to stay in favor of the federal case.

Expansion of Recoverable Costs in New CRC 8.278(d)(1) Is Not Retroactive

Andreini & Co. v. MacCorkle Insurance Service, No. A133473 (D1d2 Sept. 25, 2013)

The court addresses two questions about costs recoverable by a successful appellant. First, does the prior version of Rule of Court 8.278, which does not expressly permit a party to recover the cost of borrowing money to post a cash deposit in lieu of an appellate bond, nonetheless permit the appellant to recover its interest cost expense after a successful appeal? Relying on the rationale of last year’s Supreme Court decision in Rossa v. D.L. Falk Construction, Inc., 53 Cal. 4th 387 (2012), the court says no. Second, does a new version of the rule, as modified by the Judicial Council effective January 1, 2013, to overrule Rossa, and which now expressly permits the recovery of the “fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking,” see Cal. R. Ct. 8.278(d)(1)(G), apply retroactively to the 2010 judgment in this case? Relying on standard retroactivity principles, and recognizing that applying the new rule would increase the cost bill by more than $200,000, the court declined to apply the new rule retroactively in the absence of any express intent by the Judicial Council that it should do so. Reversed.

Time to Update that Resume . . .

Mt. Holyoke Homes, LP v. Jeffer Mangels Butler & Mitchell, LLP, No. B243912 (D2d3 Sept. 24, 2013)

In an appeal following the denial of a petition to vacate an arbitral award in favor of Jeffer Mangels in a legal malpractice case, the court finds that Jeffer Mangels’ arbitration clause in their retainer letter is enforceable and that arbitration was properly compelled. As to the petition to vacate, however, the court reversed. The arbitrator’s (apparently ten-year-old) Internet bio listed Robert Mangels (the Mangels in Jeffer Mangels) as a reference. But he didn’t disclose that in his mandatory disclosures of potential conflicts under Code of Civil Procedure § 1281.9(b). Because the arbitrator was required to disclose any information that could reasonably cause a person aware of the facts to entertain a doubt that the proposed arbitrator would be impartial, and because the court believed that the arbitrator’s use of Mangels as a reference met that standard, the fact of the reference should have been disclosed. Failure to do so merited vacating the arbitral award under § 1286.2(a)(6)(A). Reversed and remanded.

Ships Pass in the Night in San Diego

Fox Johns Lazar Pekin & Wexler, PC v. Superior Court, No. D062663 (D4d1 Sept. 24, 2013)

Opening a split in authority with a case decided last week, the court of appeal decides that an order compelling a third party to appear at a judgment debtor exam is not immediately appealable.  And then, after accepting the issue on writ review, it significantly limits the scope of third party discovery under the Enforcement of Judgments Law.

Appraisal Can Wait for Statutory Construction

Alexander v. Farmers Insurance Company, No. B239840 (D2d8 Sept. 23, 2013)

The court of appeal holds that a trial court has the discretion to delay sending insurance valuation claims to a statutory appraisal when the lawsuit presents gateway issues of statutory and contract interpretation that can only be addressed by the court.

Miltiple Choice Form Contract Does Not Preclude Arbitration

HM DG, Inc. v. Amini, No. B242540 (D2d3 Sept. 20, 2013)

The court of appeal holds that an arbitration agreement's inclusions of multiple options for selecting an arbitrator did not make the argument too uncertain to enforce.

Monday, September 23, 2013

Failure to Oppose Summary Judgment Is Not a "Default" Excusable Under CCP § 473(b)

Las Vegas Land & Development Co. v. Wilkie Way LLC, No. B23921 (D2d3 Sept. 19, 2013)

The court of appeal holds that mandatory relief under Code of Civil Procedure § 473(b) in unavailable for relief from summary judgments or when the moving party does not submit an attorney affidavit.

Well, this Isn't Going to Make Collections Any Easier...

Macaluso v. Superior Court, No. D063325 (D4d1 Sept. 18, 2013)

The court of appeal holds that an order compelling compliance with a third-party subpoena in post-judgment debt collections proceedings is an appealable order under Code of Civil Procedure § 904.1. 

Tuesday, September 17, 2013

Fee Estoppel Under Civil Code § 1717

Brown Bark III LP v. Haver, No. G047198 (D4d3 Sept. 13, 2013)

Plaintiff sued defendant for failure to repay money owed on a line of credit. Defendants weren’t a party to the credit agreement; plaintiff pursued them on alter ego and successor liability theories as well as for conversion and fraud. Defendants won at trial. Because the underlying credit agreement had an attorneys’ fees provision, defendant sought a fee award, which the trial court denied. Defendants appealed. 

Judgment in Mineral Dispute Stays Put in State Court

Tearlach Resources Ltd. v. Western States International, Inc., No. F065511 (D5, as amended Sept. 17, 2013) 

The trial court entered judgment in a case about a dispute over an oil and gas lease on federal land. It subsequently granted a motion to vacate the judgment under Code of Civil Procedure § 473(d) on the grounds that it lacked subject matter jurisdiction to enter the judgment because it believed that the claim was subject to the exclusive jurisdiction of the federal courts. The court of appeal reversed, holding that (a) federal court jurisdiction is exclusive only when a statute expressly provides that result; (b) that the Mineral Leasing Act of 1920, which governed the claims at issue, did not provide for exclusive federal jurisdiction; and (c) because the dispute was just a contract dispute between lessees and assignees, the interests of the United States were not sufficiently implicated to make it a necessary party, such as to require exclusive federal jurisdiction under 28 U.S.C. § 1346(f), which vests the federal courts with exclusive jurisdiction to actions to quiet title to real property in which the United States claims an interest.


Institutionalizing Yourself Is a Suboptimal Strategy in a Custody Fight

McClintock v. West, No. G046483 (D4d3 Sept. 9, 2013) 

During his divorce proceedings, McClintock (a lawyer) checked himself into a mental institution. Finding him incompetent, the court appointed West to act as McClintock’s guardian ad litem. West proceeded to settle the divorce case in a manner that did not meet McClintock’s approval. McClintock then sued West for breach of contract and various torts in connection with her guardian ad litem duties and a fee application West filed with the court seeking approval of her guardian fees. The trial court sustained West’s demurrer, which the court of appeal affirmed, on the grounds that (a) any causes of action arising from acts undertaken as a guardian ad litem are barred under the absolute quasi-judicial immunity; (b) liability for filing the fee petition was barred by the Civil Code § 47(b) litigation privilege; and (c) because West was acting as a guardian and not as McClintock’s attorney, she could not be held liable for professional malpractice.


A Tale of Greed, Dead '70s Actors, and a Pro Se Trying to Compel Arbitration. Welcome to LA.

Little v. Pullman, No. B238137 (D2d1 Sept. 9, 2013)

In a somewhat bizarre battle over George Jefferson’s residuals, the court holds that the defendant cannot unilaterally rescind a settlement agreement in order to invoke an arbitration clause in an earlier agreement that was novated by the settlement. 

Saturday, September 14, 2013

Mann, I Sense a Split of Authority ...

Cho v. Chang, No. B239719 (D2d4 Sept. 6, 2013) 

The court of appeal adds to the body of contradictory case law addressing a long-simmering issue in the application of the anti-SLAPP statute: What happens when multiple fact theories are jammed into a single “cause of action,” when some of those theories are subject to a SLAPP motion when others are not. Compare Mann v. Quality Old Time Service, Inc., 120 Cal. App. 4th 90 (2004) with City of Colton v. Singletary, 206 Cal. App. 4th 751 (2012). The court here upholds the trial court’s ruling that struck only the part of a cause of action that arose from protected activity under Code of Civil Procedure § 425.16(e).

Too Much Drama to Handle in an Unlawful Detainer

Martin-Bragg v. Moore, No. B238772 (D2d1 Sept. 3, 2013)

In a colorful unlawful detainer case between parties with significant romantic and financial back stories, in which pretty much every document is asserted to be a forgery, a pro se appellant manages to overturn a UD judgment against him because the dispute implicated the underlying title to the property. Because the title dispute—which was pending in a separate case—raised complex issues of fact, the court of appeal held that trial court should have consolidated the cases and treated the consolidated dispute as a regular civil case. By effectively deciding the title issue in under summary UD procedures that afford no discovery, the trial court erred in a manner that prejudiced appellant’s rights to have the title issue resolved in an ordinary civil case with full procedural protections. Reversed.

Litigation Privilege Does Not Bar Statutory Causes of Action Against Litigation

Banuelos v. LA Investment, LLC, No B239123 (D2d1 Sept. 3, 2013) 

Treading similar ground to a previously covered case, the court holds that an action for retaliatory eviction under Civil Code § 1942.5 cannot be barred by the Civil Code § 47(b) litigation privilege because § 1942.5 contains a specific statutory authorization that is inconsistent with the privilege.

Putative Slayer Must Pony Up for Insurer's Interpleader Fees

Farmers New World Life Insurance Co. v. Rees., No B241099 (Aug. 30, 2013)

In an interpleader case involving insurance proceeds, the insurance company is entitled to recover its fees incurred in bringing the action from the interpleaded res. 

Sunday, September 8, 2013

Plaintiff, Remove Yourself

Benitez v. Williams, No. B424512 (D2d3 Aug. 30, 2013)

The court of appeal held that a superior court cannot dismiss state-law claims for lack of jurisdiction, even though they are joined with a cause of action subject to exclusive federal jurisdiction.

Docket Control ...

O’Donoghue v. Superior Court, A137996 (D1d5 as modified Sept. 27, 2013)

The court of appeal denied a writ asking to overturn a superior court’s reference of a case to a referee under Code of Civil Procedure § 638.

It's Really Malice, Fraud "and/or" Oppression...

Nickerson v. Stonebridge Life Ins. Co., No. B234271 (D2d3 Aug. 29, 2013)

In a case seeking punitive damages, the majority and dissent agree that the superior court should instruct on malice fraud or oppression as a single disjunctive concept instead of asking for separate special interrogatories.

Thursday, August 29, 2013

A Move to Henceforth Be Known as a Callahan's Choice

Roldan v. Callahan & Blaine, No. G047306 (D4d3, as modified, Sept. 19, 2013) 

Lawyers in a dispute with their former clients are given a choice between fronting fees for an arbitration or waving their right to arbitrate and defending their case in court.

Wednesday, August 28, 2013

A Few Words on Sandbagging...

Jay v. Mahaffey, G047325 (D3 Aug. 23, 2013) 

The court affirmed the denial of a SLAPP motion arising out of a malicious prosecution case because the plaintiffs came forward with sufficient prima facie evidence of each of the elements of their claims.

Majority Affords No Tolling for Minority

Barker v. Garza, No. B237916 (D2d8 Aug. 22, 2013) 

In a split decision, the court of appeal holds that tolling of a statute of limitations due to the plaintiff’s minority status under Code of Civil Procedure § 352(a) does not apply to claims brought under the Drug Dealer Liability Act. In reaching that result it suggests a broad interpretive rule that the dissent finds particularly problematic.

Friday, August 23, 2013

No Jurisdiction, No Fees

Barry v. State Bar, No. B242054 (D2d2 Aug. 21, 2013) 

The superior court has no authority to award fees to a defendant who, in litigating an anti-SLAPP motion, establishes that there is no likelihood of success because the trial court lacks subject matter jurisdiction over the plaintiff’s claim.

Sob Stories and Accomodating Experts' Vacations Do Not Merit a New Trial

Rayii v. Gatica, No. B236626 (D2d3 Aug. 20, 2013)

The court of appeal affirms the denial of plaintiff’s new trial and JNOV motions after she obtained a small verdict in a car crash case. Most of the issues addressed are weight of proof issues that are not germane to the procedural concerns addressed in this publication. The opinion does, however, addresses a few procedural issues.