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.