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.”

Affirmed.

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.


Affirmed.

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.


Affirmed.


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.

Reversed. 

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.

Affirmed.

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.


Affirmed.

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. 


Affirmed.

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.