Thursday, February 27, 2014

Another Per Se Reveral Rule Bites the Dust

Robert v. Stanford University, No. H037514 (D6 Feb. 25, 2014)

After plaintiff brought and lost an apparently frivolous employment discrimination case against Stanford University, the trial court awarded Stanford $100,000 for its fees. Although the trial court never made any express written findings in support of the fee award, it made oral findings on the record that supported an award under the governing Christiansburg/Cummings standard. Plaintiff appealed the fee award, relying on Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal. App. 4th 859 (2001), an earlier court of appeal case holding that a court commits per se reversible error when it awards fees to a prevailing defendant in a  FEHA case without making express written findings to support the award. But continuing a notable trend, the court departs from prior precedent and holds that Rosenman’s procedural error per se rule—like most rules mandating automatic reversal for procedural error—runs afoul of Article VI § 13 of the state constitution and Code of Civil Procedure § 475, which permit reversal of trial court rulings only when there is a miscarriage of justice or prejudice to the appealing party. Because it was clear from the trial court’s oral findings that it did not abuse its discretion in awarding fees to Stanford, reversal was not merited.


Further coverage here.

Wednesday, February 26, 2014

Standing Up for Associational Taxpayer Standing

Gilbane Building Company v. Superior Court, No. D063685 (D4d1 Jan. 23, 2014)

A community group brought a taxpayer suit against a contractor that had done business with a school district, alleging various causes of action to the effect that the contractor had made improper gifts to district officials in order to win the contracts. The contractor demurred, challenging the community group’s standing to sue on the grounds that it was not itself a district taxpayer, that its lawsuit was usurping the district’s discretionary functions and that it had not made a demand that the district sue on its own behalf. The trial court denied the demurrer and the contractor sought writ review.

Although it takes up the writ, the court of appeal denies relief. Citing to a recent case from the same division, Taxpayers for Accountable Sch. Bond Spending v. San Diego Unified Sch. Dist., 215 Cal. App. 4th 1013, 1031–1033 (2013), the court of appeal holds that an association has standing to bring a taxpayer action under Code of Civil Procedure § 526a, provided some of its members have standing to sue on their own behalf, even if the association itself does not pay taxes. And the rule prohibiting taxpayers from usurping a public agency’s discretion through taxpayer suits is inapplicable. Assuming that the complaint’s allegations that the district had expended funds illegally are true—as required on a demurrer—the contracts are void, not merely voidable. Under those circumstances, action by the district is mandatory; its governmental discretion is not implicated. Finally, requiring a demand would be futile, as district officials were alleged to be participants in the wrongdoing. It is doubtful that they would initiate a lawsuit to correct their own malfeasance. And even if a demand were required, the community group’s notification to the district that it intended to bring suit was sufficient to put the district on notice and to permit the district an opportunity to commence an action on behalf of its constituents.  If actual refusal of a demand were a requirement, a public agency could simply forestall taxpayer litigation by refusing to respond to a demand.

Writ denied.

Abetting Collection Avoidance Is Purposeful Availment

Gilmore Bank v. AsiaTrust New Zealand, Ltd., No. G048053 (D4d3 Jan. 21, 2014)

The court of appeal reverses an order quashing service for lack of personal jurisdiction. In doing so, it reads the effects test enunciated in Calder v. Jones, 465 U.S. 783 (1984) and subsequent California Supreme Court cases to require only the knowing direction of an intentional tort into the California forum, but not necessarily at the plaintiff in the case.

Thus Ends a Cottage Industry...

Hataishi v. First American Home Buyers Protection Corp., No. B244769 (D2d3 Feb 21, 2014)

The court of appeal affirms the denial of class certification in a case alleging class-wide violations of Penal Code § 632, which prohibits the intentional recording of a “confidential communication” without the consent of all parties to the communication. The ruling is significant, particularly given that Penal Code
§ 637.2(a)(1) permits $5,000 in statutory damages per recording, the potential class-wide exposure in these cases can be enormous. 

Here, plaintiff alleged that, although inbound calls she made to defendant were preceded with the familiar “this call may be recorded” warning, outbound calls that defendant placed to her were not. Under prior case law, the relevant standard is whether the plaintiff had an objectively reasonable expectation that the call was not being recorded, a question of fact, and the defendant’s failure to include a warning is not a violation per se. Instead, prior cases address various factors that go to the reasonableness of the plaintiff’s expectation—whether the call was initiated by the consumer or whether a corporate employee telephoned a customer, the length of the customer-business relationship, the customer’s prior experiences with business communications, and the nature and timing of any recorded disclosures. These factors can potentially vary significantly on a plaintiff-by-plaintiff basis. 

For instance, plaintiff in this case testified that she had a five-year relationship with the defendant, she had made at least a dozen inbound calls where she received a warning that the call might be recorded, she had never objected to any recording, and she had participated in “dozens and dozens and dozens” of telephone calls with other companies where she understood her call could be recorded or monitored. Consequently, her objectively reasonable expectations could differ significantly from those of other customers whose calls were recorded without warning. There was thus substantial evidence to support the trial court’s conclusion that a community of interest in common questions was lacking.


Friday, February 21, 2014

Apparently, CT Corp. Wasn't Home ...

Ramos v. Homeward Residential, Inc., D063740 (D4d1 Feb. 20, 2014)

Other than writs about discovery, nothing warms the cockles of the heart of a civil procedure blogger more than a published decision about service of process. Here, the court of appeal holds that a San Diego trial court properly set aside a default judgment because the defendant was never properly served with process though substituted service under Code of Civil Procedure § 415.20 and  the plaintiff’s efforts did not constitute substantial compliance with the service statutes.

Leave No Stent Behind ...

Maher v. County of Alameda, No A135792 (D1d1 Feb. 18, 2014).

This is a med-mal case where hospital defendant implanted a biliary stent as part of treating plaintiff for gunshot wounds back in 1996. Plaintiff claimed to be unaware of the stent and only learned of it when he was hospitalized for liver complications in 2010. Plaintiff's doctors told him that the stent was only designed to be temporary and should have been removed within three to six months of installation. In the meantime, the stent had begun to disintegrate and migrate away from where it had been placed, which played some role in his complications. Plaintiff sued the hospital, which demurred on statute of limitations grounds. The trial court granted the demurrer but the court of appeal reverses. The med-mal statute of limitations is Code of Civil Procedure § 340.5. It limits tolling to three years except in certain exceptional circumstances. But one of those circumstances permits tolling when there is “the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” The court here finds that a temporary stent that has been left in place for more than a decade after it served any medical purpose meets that requirement, so the plaintiff was entitled to tolling until he found out about the implanted stent in 2010.

Reversed and remanded.

Thursday, February 20, 2014

A Double Secret Fee Application

Concepcion v. Amscan Holdings, No. B247832 (D2d7 Feb. 18, 2014)

This is an appeal of an attorneys fee award arising out of a settlement of five different class actions against the Party City stores for collecting zip code information. The parties agreed the class would get $300,000 in certificates for merchandise but did not agree to a fee award. Plaintiffs sought $350,000, which Party City opposed on the grounds that much of the work between the various plaintiff lawyers appeared duplicative. The trial court was initially inclined to agree with Party City, but invited the plaintiffs to submit supplemental information in camera. Plaintiffs took the invitation, after which the trial court approved the full award. Party City appealed. The court of appeal first holds, following the recent Ruiz decision, that Party City did not waive any right to appeal because the settlement agreement lacked clear waiver language. Furthermore, by relying on information filed in camera in approving the award, the trial court violated Party City’s right to due process. Although plaintiffs could have permissibly redacted their bills of privileged matters, the trial court was not free to base an attorneys fee award on information that Party City could not see, and thus could not contest.

Reversed and remanded.


Prakashpalan v. Engstrom, Lipscomb & Lack, No. B244236 (D2d1, as modified Feb. 26, 2014)

The court of appeal affirms in part and reverses in part a trial court’s order sustaining a law firm’s demurrer to a bunch of claims brought by a former client. It holds that certain of plaintiff’s claims are subject to a statute of limitations that applies to fiduciaries, and accordingly, that those claims are not barred due to the statute’s generous tolling rule. But as to plaintiffs’ claims for failure to disclose a conflict of interest and failure to maintain confidentiality, the court affirms dismissal because the complaint did not explain how these failures resulted in the harm allegedly suffered by the plaintiffs

Tuesday, February 11, 2014

A Funny Business Records Subpoena ...

The court of appeal holds that the merits of a motion to quash a deposition subpoena seeking business records can be addressed as part of an interlocutory appeal of sanctions awarded along with a quashal. The court then reverses the quashal because the documents sought were, in fact, discoverable. 

Monday, February 10, 2014

Fee Award in Irrigation Fight Fails to Carry Water

Morgan v. Imperial Valley Irrigation District, No. D060146 (D4d1 Feb. 4, 2014) 

Plaintiffs sued the Imperial Irrigation District over a water rate increase. The District won at trial on all of plaintiffs’ counts, save a few that the parties stipulated were moot before the trial commenced.  Nonetheless, some plaintiffs sought an award of their attorney fees, arguing that they were entitled to these fees under the Private Attorney General Act, Code of Civil Procedure § 1021.5. According to plaintiffs, the moot counts merely challenging the constitutionality of fees related to the District voluntary water exchange program had caused the District to delete these fees from the program two years before the trial. Plaintiffs further claimed that the stipulation of mootness prevented the District from ever imposing these fees in the future. The trial court agreed and awarded plaintiffs $77,375.  The court of appeal reverses because the award was unsupported by the record and was based on the faulty assumption the deleted fees had actually been determined to be unconstitutional. The trial court never actually ruled that the fees were unconstitutional. And neither their pre-trial removal by District, nor its stipulation that the claims addressing them were moot was any concession by the District that the fees were, in fact, unconstitutional. Further, contrary to the plaintiff’s claim, nothing in the stipulation actually prevented the District from introducing the fees at some point in the future. Because the litigation had not actually conferred a significant benefit on the general public or a large class of persons, plaintiffs did not meet a threshold requirement of getting a fee under PAGA.  Thus, whether the fee award was subject to a de novo or abuse of discretion standard of review—a point the court declines to decide—the award was erroneous. 


Court Appointed Custody Evaluator Is Immune, Right or Wrong

Bergeron v. Boyd, No. A137802 (D1d4, as modified Feb 4, 2014) 

The mother in a child custody fight sued a psychologist who was acting as a child custody evaluator, appointed by the court as neutral expert under Evidence Code § 730. The psychologist allegedly wrote a biased custody report and issued some interim custody orders adverse to the plaintiff under authority that had been delegated to him by the court. Plaintiff sued for breach of contract, negligence and intentional infliction of emotional distress, but the trial court granted defendant’s demurrer, dismissing the case because the psychologist, who was acting under the auspices of the court, was protected by absolute quasi-judicial immunity. The court of appeal affirms. Generally, on-all-fours precedent has held that family law custody evaluators and other retained neutrals acting pursuant to the authority of the court are entitled to quasi-judicial immunity. It is true that, in this case, the family court judge may not have had the authority to delegate the authority to issue interim custody orders to a custody evaluator. But that did not vitiate the immunity, which affords absolute protection for “all judicially-related actions regardless of whether the judicial officer exceeded his or her legal authority or jurisdiction to act.” Here “all of the actions complained of were well within [the psychologist]’s judicially delegated role as a family court child custody evaluator, whether or not such delegation was legally authorized[.]” Thus, because the psychologist was effectively acting as a deputized officer of the court, he was entitled to quasi-judicial immunity and a demurrer was properly sustained.


Monday, February 3, 2014

Non-Taxpayer Can't Get Taxpayer Standing

Reynolds v. City of Calistoga, No. A136502 (D1d5 Feb. 3, 2014)

By statute, California conveys upon taxpayers general standing to sue government entities for injunctive relief resulting from illegal expenditures, injuries to public property, or waste. See Cal. Code Civ. Proc. § 526a. But the plaintiff still needs to have paid some taxes to the defendant government in order to invoke the rule. Plaintiff here paid no taxes to the defendant. And the court declines his invitation to extend taxpayer standing even to non-taxpayers. Nor is he entitled to the sort of public interest standing that applies in some kind of mandamus proceedings; mandamus was not at issue in this case. Nor is he entitled to standing on a public trust grounds because he did not assert that the government action about which he was complaining resulted in harm to any resources held in trust for the public. So his complaint was properly dismissed for lack of standing.


Evidentiary Musings

Cheal v. El Camino Hospital, No. H036548 (D6, as modified Feb. 14, 2014)

This is an appeal that reverses a grant of a summary judgment in an employment retaliation case. Most of the substance deals with employment law issues. But there are some interesting tidbits on evidence in the footnotes where the court repeatedly reverses evidentiary calls made by the trial court.

No bond. No consent. No stay.

Sharifpour v. Le, No. G04249 (D3 Jan 31, 2014)

After plaintiffs obtained a $700,000 judgment against defendants, defendants appealed. They further moved to have enforcement stayed pending appeal without having to post a supersedeas bond. When plaintiffs failed to respond, the court granted the motion and stayed execution. The court of appeal here holds that that was improper. Unless the judgment creditor consents, the court does not have the power to stay the enforcement of a judgment where the Code provides for a stay only upon the giving of an undertaking. Cal.
Code Civ. Proc. § 918. Because § 917.1(a)(1) requires an undertaking to stay enforcement of a money judgment, the trial court here could not enter a stay longer than ten days without plaintiffs’ consent. And because no statute dictated that a non-response to a stay motion could be deemed a consent, and there was no evidence from which it could be inferred that plaintiffs implicitly consented, plaintiffs’ mere failure to oppose the motion was insufficient to be treated as their consent to a stay of enforcement. The trial court thus abused its discretion in entering a stay of enforcement.


Gotcha! Deemed Admitted! Nope...

St. Mary v. Superior Court, H038918 (D6 Jan. 31, 2014)

The Sixth District grants a writ on a discovery matter. It holds that four-day late requests for admission can’t be deemed admitted when the responding party served responses that substantially complied with the requirements of Code of Civil Procedure § 2033.220 prior to the hearing on the propounding party’s motion to have them deemed admitted.