Thursday, October 30, 2014

Clearing the Decks.

So regular readers (should you exist) might have noticed that my posting frequency has gone craptastic over the last couple weeks.  That’s what expedited cases do to a guy. Maybe more about that later. 

I’ve fallen rather behind. In an effort to remain comprehensive—I believe that I’ve hit every published case of procedural significance from the get-go—I'm going to have to run through things a little shorter than ordinary. Over the next couple posts I am going to give be more summary capsules than either the general write ups or the occasional deeper analysis I’ve tried to provide. 

And I Get Upset when My Broadband Is Slow ....

Holguin v. Dish Network, No. D059983 (D4d1 Sept. 22, 2014)

A technician drilled through a sewer pipe while installing satellite television in plaintiffs’ home. He didn’t realize it. By the time the mistake was uncovered more than a year later, plaintiffs’ house has become a mold mine. Defendants (various AT&T-owned companies) agreed to pay for the remediation. But that didn’t go very well, and the matter winds up in litigation. A jury awarded plaintiffs $109,000. The court followed by awarding $180,000 in attorneys’ fees,
about a third of what plaintiffs’ asked for. Defendants appeal on three somewhat related issues, plus in the court’s award of legal fees. Plaintiffs cross-appeal on the amount of the fee.

Defendants first say that the trial court erroneously instructed the jury on plaintiffs’ contract claims. The evidence showed that there were a series of different form agreements between the plaintiffs and the various defendant entities, signed by plaintiffs at various stages of the installation process. The instructions, however, all referred to “contract,” in the singular. The court here rejects the argument. First, defendants didn’t propose any instruction that used the plural, so the argument was forfeited. And even if it weren’t, the evidence showed that each of the agreements was part of single transaction—the plaintiffs’ signing up telecommunications services. The agreements were replete with cross-references. Under the circumstances, there was no error in treating the various instruments as a series of contracts that “are to be taken together” under Civil Code § 1642, and thus effectively treated as a single contract.

Second, defendants appeal the court’s instruction that the contracts contained an implied term requiring Defendants to properly install the equipment they were providing. They argue that because the contract didn’t contain any such term, it was error for the trial court to tell the jury to imply it. But that argument runs into the law. Every contract includes an implied duty to perform with reasonable care. If you contract to do X, and you do X negligently, you have breached the contract.

Third, defendants appeal the superior court's denials of JNOV and new trial motions that raised the above points as well as the insufficiency of the evidence. The contract points fail for the same reason as above. And as to the adequacy of the evidence, defendants failed to carry their burden on appeal of showing that there was no substantial evidence in favor of the verdict.

Finally, defendants appeal, and Plaintiffs cross-appeal, on the attorneys’ fee award. Defendants first claim that fees aren’t awardable under Civil Code § 1717 because the jury verdict appeared to award damages on negligence, not contract claims.  The court first clarifies that the standard of review is that applicable to determining the prevailing party (abuse of discretion) as opposed to the standard that applies to a determination of the legal basis of an award (de novo). Deciding whether the fee award sufficiently arose from the contract, as opposed to tort, claims was a determination of prevailing party (and claim) status. On the merits, the trial court did not abuse its discretion.  Although the verdict form did not specifically award contract damages, it found that the four elements of breach of contract had been proven and the part of the special verdict that calculated damages was separate from the individual counts on which the jury was polled.

As to the amount of fees, when it calculated the lodestar, the trial court did not abuse its discretion in declining to include about 150 hours of duplicative work a replacement attorney had to do when their first lawyer fell ill. The court’s authority to award reasonable fees permitted it to disallow this time.  Nor did the court err in apportioning fees between contract and tort claims—most of which were nonsuited.  The court employed a reasonable methodology to accomplish the apportionment so it did not abuse its discretion.  Finally, the trial court also did not abuse its discretion in declining to apply an enhancement.  The lodestar itself was a reasonable fee.  Particularly when compared to what the attorneys would obtain under their retainer agreement had there been no § 1717 provision—less than $40 grand—the un-enhanced $180,000 awarded by the court was within the realm of reason.


Friday, October 17, 2014

A Pleasant Disposition

Ducoing Mortgage v. Superior Court, No. G050457 (D4d3, as amended Feb. 10, 2015*)

Two related company plaintiffs and sued their insurance broker for failing to procure the right policy but got nonsuited at trial. The court awarded defendant about $50k in costs. In a prior appeal, the court affirmed dismissal as to one plaintiff for a somewhat technical reason, but “in all other respects” reversed and remanded for further proceedings.

After remand, the defendant began efforts to collect on the cost judgment against the affirmed plaintiff. In judgment debtor proceedings related to the collection, the trial court held that the costs judgment remained enforceable versus the losing plaintiff, who took a writ.

In reaching the merits, the court makes a number of comments about the nature of an appellate court’s disposition in California. Under Code of Civil Procedure § 43, an appellate court can “affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.” This usually occurs in a short paragraph at the end of an opinion. Although it need not be exceedingly detailed, a “disposition is not intended to be a riddle, and the directions in the dispositional language, as conveyed by the remittitur, are to be followed by the trial court on remand.” If a party is confused by the disposition, its proper recourse is a petition for rehearing.

Looking to the prior disposition, the court here holds that its disposition reversing the trial court’s ruling “in all other respects” save the technical reason for bouncing the one plaintiff, in effect, vacated of the costs award too. The court further agrees with the petitioner that it would be “patently unfair” to stick it with a full costs award, given that the defendant still faced full liability on remand from the other plaintiff. Finally, the court notes that § 1032 affords a trial court the discretion to apportion costs. When, like here, two closely affiliated plaintiffs are jointly represented, if one loses but the other potentially prevails, a defendant should only be permitted to recover the marginal costs associated with the joinder of the non-prevailing plaintiff.

Writ granted.

**The court modified its opinion on rehearing to note that a petition for rehearing brought to correct ostensible fact mistakes was brought too late.

Thursday, October 16, 2014

Outrageous Misconduct

Pope v. Babick, No. G049629 (D4d3 Sept. 18, 2014)

The trial court in this car accident case granted a motion in limine. It ordered that unless defendants could establish foundation outside the jury’s presence, defendants could not elicit opinion testimony on causation issues from the CHP officers who responded to the scene of the accident. But defense counsel asked anyway. Before plaintiff could get an objection out, the officer ascribed fault to a party who had previously settled, not the current defendant. Plaintiff’s objected and the court struck the testimony. The cat, however, was out of the bag; the bell rung; Pandora’s box opened; the genie out of the bottle. Elvis had left building. But, said the trial judge, not enough to get a mistrial. A $500 sanction and a reasonably harsh curative instruction avoided any prejudice to the plaintiff. Plaintiff lost the trial and reiterated the misconduct issue in a new trial motion. Plaintiff appealed.

After disposing of the plaintiff’s appeal on lack of substantial evidence by predictably affirming based on the standard of review, the court of appeal addressed the misconduct claim. It admonishes defendant’s attorney (by name) for “outrageous misconduct.” But it too declines to upset the verdict based on the deferential standard of review that applies to denied mistrials. The trial court here provided a thorough explanation of its reasons to limit its sanctions to a monetary penalty and jury instruction—which were quite helpful, although not required. The court was convinced that the trial court’s actions were within the valid scope of its discretion. Similarly so on the new trial motion, which is also subject to deferential review.

Thus, after reiterating that it “strongly disapprove[s] of [the attorney’s] behavior” and that “[i]f it were up to us, he would have been sanctioned far more than $500” the court nonetheless finds that the trial court did not abuse its discretion. The court further notes that “[b]y stating our position in a published opinion, we believe we have satisfied our obligation to take appropriate corrective action as required by Canon 3D(2) of the California Code of Judicial Ethics.” And for good measure, it holds that “[i]n the interests of justice, each party is to bear its own costs on appeal.”