Thursday, December 31, 2015

Ferdinand de Saussure v. The Super-Duper Integration Clause

Hot Rods, Inc. v. Northrup Grumman Sys. Corp., No. G049956 (D4d3 Dec. 7, 2105)

This is an appeal of a real estate dispute decided by reference under the so-called rent-a-judge procedure in Code of Civil Procedure § 638, et seq. Not much to see here procedurally. There is an interesting parol evidence issue, however. Although that’s technically an issue of substantive contract law, it’s procedural enough for me today.

Wednesday, December 30, 2015

No Class for Legal Lunch Policy

Palacia v. Jan & Gails Care Homes, Inc., No. F070861 (D5 Dec. 7, 2014)

Another meal break case where the question is, under Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), has the employee articulated a class-wide policy by the employer that violates the wage and hour laws? Here, plaintiff, a vocational nurse at a nursing home, was required to waive any uninterrupted unpaid lunch break in exchange for a paid lunch (with lunch provided) that she had to eat in the company of her patients. Plaintiff claims the employer was required to inform her, and the other nurses, that they had the right to revoke the waiver at any time. But the relevant wage order permits twenty-four-hour residential care facilities to require on-the-clock paid lunches, with or without the employee’s consent. Since the employer’s policy was legal as a matter of law, there’s no predominant common issue that merited class cert. While that sounds like an issue that should have been nipped in the bud on a demurrer, it’s good enough to deny class cert too. (The court notes elsewhere that that “[c]lass action requirements are often enmeshed with issues affecting the merits of the case, and courts must often peek into the merits for this reason.”) So class cert was properly denied. 


Monday, December 28, 2015

Towards an Ever More Perfect Privilege Log

Catalina Island Yacht Club v. Superior Court, No. G052062 (D4d3 Dec. 4, 2015)

Can you tell the difference between a privilege log that needs more detail and a privilege log that fails to substantiate a prima facie claim of the attorney-client privilege? At the extremes, it’s probably not too hard. But most of the time in practice it’s a gray, gray area. Which is what makes this opinion potentially troublesome. 

Tuesday, December 22, 2015

Fair, and Perhaps More Importantly, Done

Dole Food Co. v. Superior Court, No. B262044 (Dec. 1, 2015)  

Non-settling defendants in a land contamination case take a writ challenging plaintiffs’ good faith settlement with the alleged principal polluters under Code of Civil Procedure § 877.6. The general takeaways are: First, that the cost of remediation that the settling defendants regulator requires them to undertake does not count towards the settlement paid when calculating the offset to the remaining defendants. Those defendants don’t get credit of things required to be done regardless of the settlement. Second, that the settlement fund was reasonably proportionate to the settling defendants’ potential liability. And third, the settlement did not need to be pre-allocated in advance among the 1,500 plaintiffs or between economic and non-economic damages to be ruled fair. That could be handled by a claims process after the case is complete.


Friday, December 18, 2015

Where the Heck Is Wn.?

Brinkley v. Monterrey Fin. Servs., Inc., No. D066059 (D4d1 Nov. 19, 2015)

This is a really long opinion that largely affirms an order dismissing Plaintiff’s class claims and ordering her to arbitrate individually. Under Washington State law. Nothing too much to see here, although it is interesting that the unconscionsablity standard in Washington state requires either procedural or substantive unconscionability, not both like in California. That results in a provision in the agreement about arbitration costs being unenforceable. But the court finds the provision to be severable and not to preclude arbitration altogether. And because the agreement specifically delegated to the arbitrator to determine whether class treatment was appropriate, the trial court erred by dismissing the class claims. Instead, it should have just sent the whole shebang to arbitration for the arbitrator to sort out.

Affirmed in part, reversed in part.

There are a trove of citations to Washington State authorities in this opinion, which all abbreviate the state “Wn.” I have never seen the Evergreen State referred to as Wn. And I used to live in Seattle. The Postal Service says WA, the Bluebook says Wa., and AP and a few other older styles say Wash. Since only one state starts with W-A, while two start with W and end with N, Wn. seems like a particularly poor choice for an abbreviation. Which is probably why nobody else ever thought to use Wn. to mean Washington State. Except Bernie Witkin and his unwieldy little yellow book.

Monday, December 14, 2015

A $138 Mistake.

King v. California, No. B257676 (D2d1 Nov. 18, 2015)

This is an appeal of a verdict in a civil rights case. A jury awarded damages against some CHP officers it found to have unreasonably searched the plaintiff. Most of the opinion deals with civil rights stuff like the sufficiency of the evidence of unreasonableness under the Fourth Amendment and qualified immunity. The court does, however, address two minor procedural points.

First, it affirms the exclusion of expert testimony from a police policy and practice expert on relevance grounds. The expert offered testimony about CHP policy, but plaintiff didn’t sue the officers for violating policy. He sued them for violating the Fourth Amendment. And since the court didn’t need some expert say what the Fourth Amendment means, the testimony was properly excluded.

The court also affirms a very small—$138—award of economic damages over a claim of inconsistent verdicts. The jury had found no liability on battery, excessive force or similar theories, but it did find the search and seizure were unreasonable. The $138 represented plaintiff’s medical expenses incurred as a result of allegedly being roughed up during the search. The jury was instructed (without objection from defendants) that Plaintiff was entitled to compensation due to any harm incurred by the officers. Based on those instructions, it was not unreasonable or in for the jury to award the expenses as damages, even if it found no liability on claims more commonly associated with compensation for physical injuries. While the court here intimates that the instructions might have been problematic, nobody challenged them. So a denial of a new trial on inconsistency grounds would be upheld because the verdict was entirely consistent with the charge given to the jury.

Affirmed in relevant part.

Friday, December 11, 2015

37.5 Percent for Ten Years

Roos v. Honeywell Intl., No. A142156 (D1d1 Nov. 10, 2015)

Some class members object to an $8.15 million class action settlement in an antitrust case. They say the plaintiffs lawyers are getting too much of the pie and that the cy pres is improper. The trial court found that one of the objectors was too late to complain and that the others lacked standing. But in any event, the objections failed on the merits too. The court of appeal affirms on all of the rulings except standing.

Wednesday, December 9, 2015

In Rem

Buchanan v. Soto, No. D065652 (D4d1 Nov. 6, 2015)

Wife, facing a collections action, transferred some marital property to Husband’s separate ownership. Plaintiff won the collection case and then sued Husband and Wife for fraudulent conveyance. She had some trouble serving Husband, who had allegedly been deported to Mexico before the case was filed. Wife unconvincingly claimed not to know Husband’s address there. After several attempts to serve Husband at the pre-deportation residence, the court permitted service by publication. Husband defaulted and Plaintiff ultimately won a judgement against both Wife and (defaulted) Husband, with the court finding that the property had been fraudulently transferred by Wife to avoid collections.

Friday, December 4, 2015

If Arbitration Fails, Try Arm Wrestling

Performance Team Freight Systems v. Aleman, No. B259146 (D2d2 Nov. 2. 2015)

Interesting how cases seem to come in clusters. We just talked about this. And here too, not very long ago. Interstate truckers’ employment contracts are excluded from the scope of the Federal Arbitration Act. As the recent Garcia case shows, given the difference of opinion between the California Supreme Court and the federal Supreme Court about the overall justness of aggressively compelling consumers and employees to arbitration, that can have some pretty interesting effects. But it doesn’t matter here because the exception applies only to employment contracts and not to agreements between trucking companies and their independent contractors. Plaintiff has the burden of providing the exception. Since here, his evidence did not show he was an employee, he could not show that the exception applies.

Nor were the claims outside the scope of the arbitration clause or the agreement itself unconscionable. In a rare analysis, the court finds that the plaintiff established that the agreement was substantively unconscionable but not procedurally so. (It’s almost always the other way around.) Plaintiff apparently failed to put in the typical declaration stating stating he was offered the contract only on a “take it or leave it” basis. Or that—as his appellate brief contends—the contract was only offered in English and he spoke only Spanish. While those things seem easy to prove, plaintiff still must actually prove them, with evidence.

So off to arbitration he goes.


Why doesnt Hollywood make stuff like this anymore?

Tenant Can't SLAPP Landlord's UD Case

Olive Properties v. Cool Waters Enters., No. B261105 (D2d3 Oct. 30, 2015)

The court here explains that it is publishing its opinion “to address the potential for abuse of the anti-SLAPP statute in unlawful detainer litigation.” Although that issue has seen a lot of litigation over the years, its pretty well settled that an unlawful detainer case arises from the defendant’s failure to pay rent and not from some related litigation oriented activity, so the anti-SLAPP statute is not implicated

Wednesday, December 2, 2015

A Portrait of a Repo Man as an Imperfect Heuristic

Uspenskaya v. Meline, No. C071647 (D3 Oct. 28, 2015)

This is another med-mal case where the issue is to what degree plaintiff’s as-billed medical expenses—which have no relation to reality, much less what she actually paid—are admissible evidence of her special damages. Plaintiff here was uninsured and she gave her doctors liens on the full billed amounts. So she did, in fact, technically owe them what was billed.

This issue was kind of addressed this in the Bermudez case, decided last summer. There, the court—expounding on the Supreme Court’s 2011 Howell decision—explained that for an uninsured plaintiff, the true measure of her medical specials is the lesser of (1) what she actually paid to satisfy the doctor; and (2) a “reasonable value,” to be determined through a wide-ranging gestalt-type test. Bermudez said that the billed amount is not, on its own, sufficient to the prove reasonableness of the expense. But along with just a little other stuff—like, in particular, an expert’s opinion—it gets plaintiff to the jury.

The trial court here found plaintiff’s billed amounts to be more or less reasonable and let them go to the jury. It’s not clear that plaintiff had any other evidence. So that might not jibe with Bermudez. But these Defendants didn’t raise that issue in their appeal. Instead, their argument was that Plaintiff’s doctors sold her bills to a collection agent—likely for cents on the dollar. Defendants wanted to put that in as evidence of the “reasonable value” of plaintiff’s claim, in lieu of the billed amounts.

The trial court refused. Because the plaintiff still owed the whole amount and the collector could and would invariably seek to recover more from plaintiff than it paid her doctors for the claims, nothing suggested that the sale value of the claims—without more—represented their true “reasonable value.” Defendant needed something to bridge the gap between the sale value and the reasonable one. Otherwise, the sale value would not stand up as an acceptable proxy for reasonable value. So without an expert, the trial court correctly held that whatever evidentiary value the context-less sale numbers had, it was outweighed by the potential that the jury might give them too much credence.

In a way, the case is essentially Bermudez in reverse. The court points out—with considerable examination of the post-Howell case law—that while “reasonable value” can be measured by what the doctor would accept from the plaintiff to settle her bill, what the doctor would take from a repo man to clear bad debt off the books isn’t quite the same thing.


Friday, November 20, 2015

From Now on, Just Demand $1 Trillion . . .

Dhawan v. Biring, No. B257977 (D2d5 Oct. 28, 2015)

Plaintiff here what I and every lawyer who has filed a
state court complaint arising from a business dispute has probably also done. Notwithstanding Code of Civil Procedure § 425.10(a)(2)—which says that “[i]f the recovery of money or damages is demanded [in a non-personal injury case] the amount demanded shall be stated—Plaintiff’s prayer for relief said only that he was entitled to damages “according to proof.” After all, in a case where the damages calculation likely depends on the testimony an expert who might not even be hired for many months, who wants to commit?

Generally it makes no difference. Under
Code of Civil Procedure § 580(a), in a contested case the court can grant any relief consistent with the complaint, regardless of whats in the prayer. But when defendant defaults, it becomes a bigger deal, because in those circumstances § 580(a) expressly prohibits any award of relief not demanded in the complaint. 

Defendant here did default, however, and that put Plaintiff in a pickle. Amending his complaint to state the now-absolutely necessary damages demand would require Plaintiff to serve Defendant anew and thus effectively relieve Defendant from the entered default on the original complaint. What’s the chance a defendant defaults twice? So to avoid that option, Plaintiff served Defendant with a “statement of damages” under Code of Civil Procedure § 425.11—which authorizes this practice in personal injury cases where, as an exception to the general rule, a plaintiff is not allowed to plead a damages number. The trial court ultimately entered a default judgment on the amount in the notice.

More than a year later, Defendant moved to vacate the judgment as void under
Code of Civil Procedure § 473(d) because the damages exceeded those pleaded in the complaint. The court of appeal agrees, and reverses. 

Because of the due process issues implicated in defaults, § 580 gets strictly construed. Prior cases have held, for instance, that if the number isn’t in the complaint, it’s not enough even if Defendant had actual notice of the damages. Given that, the court isn’t inclined to let § 425.11 serve as an end-around of the facial requirement under § 580 that an ordinary plaintiff plead his damages in his complaint. For the same reason, Plaintiff couldn’t smuggle notice of his regular damages onto his statement of his punitive damages—the amount of which which also can’t be pleaded—as required under Code of Civil Procedure § 425.115. 

Further, a default judgment for more than demanded damages isn’t just voidable; its full-blown void. So it is subject to collateral attack under § 473(d), which doesn’t have the same time limits and factual predicates that apply to an attack on a merely voidable judgment under § 473(b).


Thursday, November 19, 2015

Don't Be the Go-To Guy on ERISA

UCFW & Employers Benefit Trust v. Sutter Health, No. A143399 (D1d5 Oct. 27, 2015)

A union ERISA trust sued a healthcare provider for antitrust violations, alleging that the provider enters anti-competitive agreements with insurance networks that have the effect of driving up the cost of healthcare. The provider moved to compel arbitration, even though the trust isn’t a party to any contract with the network that contains an arbitration clause. The provider argued that the trust was nonetheless bound to arbitrate because (1) a provision in state healthcare law bound the trust to a different agreement between the the provider and the insurance network that had contracted with the trust; (2) the trust was equitably estopped; and (3) the network was the trust’s agent. The trial court denied the motion and the court here affirms.

I don’t do ERISA law, so on the first issue, it will have to suffice to say that after a lengthy discussion, the court held that the provider’s interpretation of the healthcare statutes was wrong: The network was not bound to the provider/network contract. 

As for equitable estoppel, that rule requires plaintiff to arbitrate when, although it is not a party to a contract, its claims are so intertwined with the contract that plaintiff is effectively trying to enforce some of its terms. Because its not fair to let plaintiff pick and chose what parts of the contract to enforce, the arbitration clause can be enforced against plaintiff even though its not a signatory. But that’s not the case here, since the whole point of plaintiffs claim is that the provider/insurance network contract is illegal. Given that allegation, fairness does not require the trust to stand on the contract’s terms and accept arbitration. 

And as to agency, the facts showed that, at best, the trust used some of the insurance network’s processing forms. That hardly made the network an agent of the trust.


Wednesday, November 18, 2015

§ 425.16(c) Sanctions Require an Explanation

Nunez v. Pennisi, No. H039910 (D6 Oct. 27, 2015)

This is an appeal of an order denying anti SLAPP motion in a malicious prosecution case and ordering defendants to pay fees as a sanction for filing a frivolous motion under Code of Civil Procedure § 425.16(c). 

By its very nature, the case arises from protected activity—the underlying lawsuit that was allegedly maliciously prosecuted. So it all comes down to whether plaintiff showed a probability of prevailing. The court ultimately finds that one plaintiff established a probability of prevailing against one defendant, but there was no merit as to all the other claims. 

As to the sanctions, the kind of split decision on the merits that resulted here doesnt seem to merit a finding that the motion was totally frivolous. In any event, in awarding fees based on the denial of an anti-SLAPP motion, trial courts are required to follow the procedures under § 128.7, the statute that generally governs sanctions for frivolous filings. Those rules require the trial court to explain its reasoning. Since the trial court didn’t do that here, on remand it needs either to give an explanation or deny sanctions.

Reversed, in part, and remanded.

Tuesday, November 17, 2015

One More Chance to Lose . . .

Jameson v. Desta, No. D066793 (D4d1 Oct. 20, 2015)

Pro se Plaintiff in this thirteen-year-old case is on his fourth appeal. The first three times he won; over a ten-year span, he managed to get two of trial court’s dismissal orders and a summary judgment reversed. This time, the trial court nonsuited him during his opening statement. Whether right or wrong, he forfeits his appeal on that issue because he couldn’t afford a court reporter to make a record. That seems pretty arbitrary and unfair, particularly since the Legislature recently modified the reporter fee statute—Government Code § 68086(b)—to say that for an indigent litigant with a filing fee waiver, the official reporters fee is waived. The court here thinks differently, because the trial court in question does not generally provide official reporters for trials. It makes parties hire their own. So it’s not a question of a fee waiver, but of plaintiff’s inability to afford the private reporter pro tem he needed to hire to make his record. Still seems unfair.


Full disclosure: I am representing the appellant in this case pro bono in filing a petition for review with the California Supreme Court. Well see . . . .

**Update: Review Granted!

Sometimes, It's Good to Be a Trucker . . .

Garrido v. Air Liquide Indus. U.S. LP, No. B254490 (D2d4 Oct. 26, 2015)

Before the U.S. Supreme Court stepped in with AT&T v. Concepcion, California state law more of less said that class action waivers in employment and consumer arbitration agreements are not enforceable. (Technically, there were multifactor tests, but most of the time they came out in favor of unenforceability.) Concepcion expressly reversed that rule for consumer contacts, abrogating a case called Discover Bank. And as the Cal. Supremes recognized more recently in the Iskanian case, the logic of Concepcion applies to employment cases too, thus abrogating their prior Gentry case.

But the whole reasoning of Concepcion depends on its reading of the Federal Arbitration Act’s preemption provision in 9 U.S.C. § 2. There are cases, however, to which the FAA, and thus its preemption rule, doesn’t apply. As the court recognizes here, in those cases, the logic of Concepcion shouldn’t control. Instead, in the absence of any indication that California state arbitration law has changed to reject the earlier Discover Bank and Gentry rationales on state law grounds, those cases are still good law when an agreement isn’t not governed by the FAA.

Notably, the FAA has an express carve out for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Courts have read the final "any other class of workers" catchall to mean only “transportation workers.” And since plaintiff here is a truck driver with an interstate route, the FAA does not apply to his contract. In the absence of that, the California Arbitration Act applies, and without the FAA to preempt state law, the old Gentry rule controls. Which means that the class waiver in plaintiff’s employment contract can’t be enforced.


Sunday, November 15, 2015

Not So Fundamental When Partners Are Involved

Singerlewak LLP v. Gantman, No. B259722 (D2d8 Jul. 29, 2015*)

Substantive judicial review of the correctness of arbitration decisions is extremely limited. California does, however, recognize a narrow exception to that rule: an award may be vacated as beyond the arbitrator’s power if it contravenes an “explicit legislative expression of public policy.” The rule applies only if the award runs afoul of a very important and very clear public policy of the state that has been codified into statute.

Business & Professions Code § 16600—which prohibits employment non-compete agreements—is probably one of those policies. Ask someone about non-competes. If they know anything at all, they know they are basically not enforceable in California. 

But this case involves the enforcement of a non-compete against a partner departing a partnership. So the merits aren’t controlled by § 16600. They are instead are controlled by a special exception in § 16602, which make non-competes are enforceable against ex-partners, so long as they are reasonable and geographically limited. Given the non-categorical nature of §16602, claims that an arbitrator might have erred in applying § 16602 aren’t so anathema to a state statutory policy to fall within the public policy exception. So the trial court here didn’t have authority to review the substance of the award, and it erred with it decided otherwise.


*This case was decided back in July, by ordered published under Rule of Court 8.1120(c) by the California Supreme Court on Oct. 21, 2015. This is due to a glitch in publication rules, where sometimes the Court of Appeal runs out of time under the rules to order publication while it still technically has jurisdiction over the case. (For instance, if rehearing petitions take a long time before eventually being denied.) Rule 8.1220(c) is a fix. The Court of Appeal sends the decision to the Supreme Court and recommends that they order publication, which is what happened here.

Tuesday, November 10, 2015

Lawyers Ruin Everything!

Dorsey v. Superior Court, No. D067836 (D4d1 Oct. 22, 2015)

You can’t have an attorney in a small claims case, but you can for the limited appeals that are allowed in one. In such an appeal, Code of Civil Procedure § 116.780(c) permits an award of an attorneys fee of up to $150$1,000 if the case is frivolous. But what happens when the small claims dispute involves a contract with an attorney fee provision? Can the prevailing parties get a reasonable fee, or are they limited to 150 bucks? The trial court in this case (in an appeal de novo in small claims, see § 116.770) awarded plaintiff $1,500 in a lease dispute, but added over $10 grand in under an attorneys’ fee provision in the lease. The court here grants a writ. It holds that, in light of the policy behind keeping small claims cheap, quick, simple, and fair, the $150 limit under § 116.780(c) trumps any attorney fee provisions the parties might have in their contract. Otherwise, fights over fees could readily eat up all the advantages of going to small claims in the first place.

Writ granted.

Monday, November 9, 2015

But Can They Handle the Proof?

Alberts v. Aurora Behavioral Health Care, No. B248748 (D2d1 Oct. 16, 2015)

This is a wage and hour class action brought by nurses at two mental hospitals. The trial court denied class cert for lack of commonality grounds, but the court of appeal reverses. The court finds that plaintiffs presented enough evidence that the hospitals had a practice of understaffing that—when combined with the professional and ethical obligations mental health nurses have to their patients—resulted in the routine denial of meal and rest breaks and de facto requirements to work off the clock. At the end of the day, the claims depend on a common contention about whether the hospital’s practices and policies fulfilled its obligations under the Labor Code. That was sufficient to establish commonality, notwithstanding the fact that the evidence submitted at class certs showed that the denials of breaks and the unpaid overtime were far from universal within the class. 

The court notes, however, that on remand, the trial court should consider whether the common issues actually predominate and whether the case is manageable as a class action. Justice Rothschild, concurs, reiterating this point. He notes that the alleged illegality here does not arise from on official policy, but from a de facto one. While he agrees with the court that whether or not that existed is a common question, he points out that a de facto policy case is likely to implicate much more individualized proof of liability. In those instances, the line between a voluntarily missed break and a by-the-circumstances compelled one is blurry. Moreover, the record in this case revealed a lot of complexity in the number of class members, variety in job duty and location, and variety in the class members' actual experiences with meal and break issues. Under those circumstances, managing a trial of the case could prove pretty difficult. So Justice Rothschild suggests that the trial court should take a hard look on issues of manageability and predominance on remand before agreeing to certification.


Thursday, October 29, 2015

If There Was Never a Real Plaintiff, No Discovery to Find a New One.

CVS Pharmacy, Inc. v. Superior Court, No. C077622 (D3 Oct. 15, 2015)

This case addresses if and when it is appropriate to permit pre-certification discovery to locate absent class members in a so-called “headless” class action. That is, a case where the court has determined that the original named plaintiff lacks standing the pursue the case on her own behalf. 

Wednesday, October 28, 2015

Death Knell Permits Appeal of Denial of PAGA Representaive Status

Miranda v. Anderson Enters., No. A140328 (D1d5 Oct. 15, 2015)

Since the Supreme Court’s Iskanian decision permitted claims under the Labor Code Private Attorney General Act to skirt the class action waiver arbitration clauses that are otherwise decimating employment class action practice, PAGA has been at the forefront of employment litigation in California. In this case, the trial court, in a pre-Iskanian order, held that Plaintiff’s representative PAGA claims were subject to a class action waiver in her employment contract. There’s little question that the order won’t hold up under Iskanian. But can it be raised in an immediate interlocutory appeal?

Under the “death knell” doctrine, some orders denying class treatment of claims are immediately appealable, notwithstanding the fact that plaintiff could still pursue her own claims on an individual basis. In many cases, denying class treatment transforms the incentive structure for a case in ways that make it highly unlikely if not impossible to pursue individual claims to judgment. If that happens, a denial of class cert would effectively be shielded from review. Thus, since denying cert will practically terminate the whole case, courts often permit a direct appeal of that decision, notwithstanding the absence of a final judgment.

It’s an open question as to whether the death knell doctrine applies denial of representative treatment for PAGA claims. But the court here holds it does. There are various procedural differences between PAGA representative actions and class actions. Indeed, some of those distinctions—in particular, that the plaintiff is acting in a quasi qui tam capacity on the State
s behalf—are the basis of Iskanian. But there are also similarities. And when it comes to the death knell doctrine, the similarities matter more than the differences. In particular, the denial of representative status for PAGA claims alters the incentives to pursue small cases in more or less same way as denial of class cert does. So just like a decision denying cert or sending a case to non-class arbitration, a denial of the right to proceed with PAGA claims on a representative basis effectively rings the death knell on those claims too.


Tuesday, October 27, 2015

Everybody Wins!

Sharif v. Mehusa, Inc., No. B255578 (D2d5 Oct. 14, 2015)

An employee brought two different kinds of claims against her employer: claims under the Equal Pay Act, and wage-and-hour claims under the Labor Code. At a jury trial, she prevailed on the former but not the latter.  Both sets of statutes specifically award costs and fees to prevailing parties. Plaintiff contended that since she won a net monetary victory, she was the overall prevailing party and thus only her fees were recoverable. But the trial court disagreed and the court of appeal affirms. The claims weren’t factually related. And since both statutes shifted fees in favor of the prevailing party, both parties were entitled to recover their costs and fees on the parts of the case they prevailed on. When there statute-specific fee provisions, Code of Civil Procedure § 1032’s more general definitions of prevailing party—which look to who got a net monetary recovery—don’t apply.


Friday, October 23, 2015

No Second Shots to Plead Around CCP 425.16(b).

Mobile Med. Servs. for Physicians & Advance Practice Nurses, Inc. v. Rajaram, No. G050111 (D4d3 Oct. 13, 2015)

Plaintiff sued on a number of theories, all based on Defendant
s allegedly making some untrue or defamatory statements in the course of an investigation conducted by the California Nursing Board. Unsurprisingly, that drew a successful anti-SLAPP motion. But the trial court granted the motion with leave to amend, permitting plaintiff to re-allege a breach of contract action whose facts were disaggregated from the allegations about the statements to the Nursing Board. Plaintiff did so amend, withdrawing the Nursing Board statements, and the trial court denied a subsequent anti-SLAPP motion, finding that the amended complaint did not allege claims arising from protected activity.

That was a mistake. Long-settled anti-SLAPP precedent holds that once the trial court finds that a claim arises from protected activity, Plaintiff’s can’t get leave to plead around the protected activity to avoid an anti-SLAPP dismissal. If Plaintiff had a viable claim that didn’t implicate Defendant
’s free speech rights, it was incumbent on it to plead the claim that way in the first instance.  


Thursday, October 22, 2015

The Gravamen of Litigation Malpractice

Sprengel v. Zbylut, No. B256761 (D2d7 Oct. 13, 2015)

The anti-SLAPP statute can be tricky when it comes to cases involving litigation malpractice. To the extent that the claims touch on stuff an attorney does in court they at least superficially can seem to satisfy the first, “arising from” element of the two-pronged test. But on a less literal level, that doesn’t make any sense. A malpractice claim that a client brings against his own attorney has essentially nothing to with chilling anyone’s First Amendment rights, even if the attorney’s in-court or litigation related statements are somehow implicated in the malpractice.

Tuesday, October 20, 2015

Just How Interesting and to Whom?

Bikkina v. Mahadevan, No. A143031 (D1d4 Oct. 9, 2015)

Two of the four categories of activity protected under the anti-SLAPP statute require the lawsuit to arise from speech activities
in connection with an issue of public interest.Cal. Code Civ. Proc. § 425.16(e)(3) or (4). Sussing that out can be a tough job for the judiciary, particularly when it is an invitation to weigh in on the seriousness of intra-academic disputes. Just how public or interesting does an issue have to be to meet the test? 

Here, the Court finds that one academics relentless and seemingly inaccurate attacks on another’s work doesn’t make the public issue grade. It then goes on to hold that it doesn’t matter anyway, because the plaintiff came forward with enough evidence to defeat the motion. Given the alternative holding, it seems—at least a littlelike the court is potentially letting the merits of the dispute color the public interest inquiry. That is, the analysis intimates that the inappropriate and unmeritorious—and thus potentially defamatorynature of accuser’s accusations precludes them from being publicly interesting in the first place. 

Friday, October 16, 2015

Due Process and All That

Behm v. Clear View Techs., No. H040032 (D6, as modified Oct. 16, 2015)

A trial court entered terminating sanctions against Defendant after it failed to comply with discovery orders. The complaint prayed only for damages
in excess of $200,000. But Plaintiff moved for and obtained a default judgment of $1.26 million, including $970k in punitives and compensatory damages that were more than $100k over the prayer. Defendant moved for mandatory relief from default under Code of Civil Procedure § 473(b) on the grounds that its attorney’s mistake was the cause of the default. The court denied the § 473(b) motion, but vacated the default judgment on the grounds that it shouldn’t have awarded more than what was demanded in the complaint. It invited plaintiff to file a new default judgment motion limited to $200k in damages. Both parties appealed.

Wednesday, October 14, 2015

If They Wanted to Find the Facts, They Would Be Trial Judges

Tellez v. Rich Voss Trucking, No. H04375 (D6 Sept. 30, 2015)

The trial court granted Defendant’s motion to strike class allegations in a one-sentence tentative. It then refused to expound upon its reasoning during or after argument because Plaintiff didn’t follow a local rule requiring him to call the clerk and give a heads up regarding his intent to argue against the tentative. So class cert effectively got denied and the court of appeal doesn’t really know why.

Under the circumstances of this case, that merits a reversal and remand for a clearer explanation. Class cert is very fact-intensive and the trial court is endowed with significant discretion in deciding the issue. Except in situations—not present here—where the record provides a clear explanation of a summary ruling, the trial court needs to explain why class treatment isn’t merited. Since the court of appeal is disinclined to do that work in the first instance, this case gets sent back for a better explanation.


After Eighteen Years, a Whimper

In re Tobacco Cases II, No. D065165 (D4d1 Sept. 28, 2015)

This case about Philip Morris’s allegedly deceptive marketing of Marlboro Light cigarettes has been kicking around the state courts since 1997! After a bench trial, the trial court found that Defendants violated the Unfair Competition Law, but nonetheless awarded no remedy. It determined that restitution was inappropriate and any injunctive relief had been long ago mooted by federal legislation specifically addressing the labeling practices at issue in the case.

Affirming on the merits, the court of appeal also addresses two procedural issues: (1) Was Defendant the prevailing party under Code of Civil Procedure § 1032, entitling it to recover its costs? And (2) did the trial court properly refuse to award Plaintiffs costs and fees under § 2033.420, as a sanction for Defendants’ unjustified denial of a request for admission.

The first question is an easy one. Section 1032 specifically says that the defendant is the prevailing party when plaintiff takes no relief. That’s the case even if there’s a finding that defendant violated the law but no remedy is afforded.

As to the RFA, the trial court denied Plaintiffs’ fee request because they never provided an accounting of the fees attributable to the unjustified denial of the RFA. Indeed, their request seems mostly to have been an afterthought to offset the $700k in costs that the court awarded to Defendant as prevailing party. Not only was the trial court within its discretion in denying the request in the absence of an accounting, but by failing to provide the information to justify an award, Plaintiffs waived their right to appeal the denial.


Tuesday, October 13, 2015

Don't Mess with . . . California Subcontractors

Vita Planning & Landscape Architecture, Inc., v. HKS Architects, Inc., No. A141010 (D1d5 Sept. 25, 2015)

The trial court in this construction dispute dismissed under Code of Civil Procedure § 410.30, finding that Texas courts were a more appropriate forum because the contract between the parties contained Texas forum selection and choice-of-law clauses. But that gets sideways with § 410.42, which prevents out-of-state contractors from requiring California subcontractors to litigate certain contract disputes in the contractor’s home state when the work is done in California. Defendant contended, and the trial court agreed, that the relationship at issue here—between an general architecture firm and landscape architect—was not the kind of contractor/subcontractor relationship addressed by § 410.42. The Legislature, however, intended to broadly protect in-state subcontractors. So the fact that the sub was providing design services, as opposed to more typical construction stuff, didn’t make a difference. The Texas forum clause thus was unenforceable under § 410.42.


Sunday, October 11, 2015

Zero-Dollar § 998 Offer Found Reasonable

Melendrez v. Ameron Int’l. Corp., No B256928 (D2d Sept. 17, 2015)

Plaintiff lost at summary judgment in this asbestos case because his exposure was in the workplace, which meant his exclusive remedy was workers’ comp. While its SJ motion was pending, Defendant made a rather aggressive offer of judgment under Code of Civil Procedure § 998 offer, proposing a dismissal in exchange for a mutual waiver of costs and fees. Because plaintiff didn't beat hte offer, the court permitted the shifting of costs, including significant expert witness fees. Plaintiff moved to tax, arguing that the lowball § 998 offer was in bad faith and that certain expert expenses were not sufficiently related to the experts testimony to be recoverable. The trial court disagreed.

The court of appeal affirms. A plaintiff’s failure to beat a defendant’s § 998 offer merits a presumption that the offer was reasonable. To rebut the presumption, Plaintiff bears the burden of showing unreasonableness. While a court can consider plaintiff’s in assessing reasonableness, it’s by far the only thing that matters. Courts can also consider the amount of costs to be shifted and the plaintiff
likelihood of prevailing. So when a defendant has a strong defense—like Defendant’s workers’ comp defense here—it can permissibly make a low offer. That’s particularly true here, where discovery was largely complete and the SJ motion pending by the time Defendant made its offer. So Defendant could make a good-faith informed assessment of the strength of Plaintiff’s case and the value of its claims.

There’s also an issue about allocation of expert fees. Defendant’s experts inspected Plaintiffs home
to which he had brought home various asbestos-containing goods from work for use in home improvement projectsfor contamination. When the found asbestos, they also did significant remediation work to remove it. Work done to inspect is recoverable as part of the experts’ work in preparing to testify in the case. But work done to remove contamination is not. Here, the court finds that the trial court made a permissible allocation, excluding recovery for various work that was solely for remediation purposes. To the extent the trial court permitted recovery of some expenses whose purpose wasn’t completely clear, it was the court’s prerogative to make factual findings regarding whether any work was necessity to the expert’s testimony. So long as substantial evidence in support them, which it does, those findings don’t get disturbed on appeal.


Wednesday, October 7, 2015

In Other News . . . .

If you haven’t yet had your fill of California procedure—and really, who could ever have too much California procedure—I have an article on motions for new trial (and the Maroney case in particular) in this month's Los Angeles Lawyer. You could even take the quiz and get some easy CLE!

Monday, October 5, 2015

Just More Chances to Lose

San Diegans for Open Gov’t v. Har Const. Co., No. D066514 (D4d1 Sept. 17, 2015).

A good-government group brought this case to cancel a construction contract under Government Code § 1090 as the product of a corrupt bargain between a San Diego-area school district and a contractor. More than a year into the litigation, Contractor filed an anti-SLAPP motion, which the trial court denied because Plaintiff established a likelihood of prevailing on the merits.

Wednesday, September 30, 2015

You Need More than a Hope to Deny an RFA

Grace v. Mansourian, No. G049590 (D4d3 Sept. 15, 2015)

This is a car accident case where defendant allegedly ran a red light. Plaintiff won a jury verdict. He then sought to recover his fees for his costs of proving liability under Code of Civil Procedure § 2033.420, because Defendant had unjustifiably denied an request that he admit the light was red. All the other witnesses said it was red. But Defendant (somewhat shakily) persisted that it was yellow at best. The trial court denied fee shifting, finding that the difference in memory was sufficient to provide a reasonable basis to deny the RFA.

The court of appeal, however, holds that Defendant’s belief wasn’t reasonable given all of the other overwhelming evidence that the light was, in fact, red. The point isn’t whether there was substantial evidence sufficient to beat summary judgment or avoid nonsuit. That was there. But avoiding SJ didn’t make it reasonable to deny the RFA. Reasonableness requires “more than a hope or a roll of the dice.” Under the circumstances, Defendant’s shifty recollection didn’t cut it.


Tuesday, September 29, 2015

An Object Lesson on the Epistemic Limits of Debt Collectors

Sierra Managed Asset Plan, LLC v. Hale, No. 06-2013-00443856-CL-CC-VTA (Venura App. Div. Aug. 20, 2015) 

In trials in limited civil cases, the parties can submit declarations in lieu of live direct testimony under Code of Civil Procedure § 98. In order to do that, the declarant has to represent that he is available for service of process at an address within 150 miles of the courthouse, so he can be subpoenaed for cross-examination if the other party is so inclined. In this case, the address given by the declarant in this case was a PO box in a store, so the declaration was false and deficient in that respect. The declarant, however, was present at trial and actually cross-examined by the defendant. So the purpose of § 98, if not its letter was met, and there was no prejudice. Under the circumstances, the trial court didn’t err in accepting the declaration.

But the declaration attached various bank documents as business records. The declarant, however, was not an employee of the bank, but of the plaintiff, a collections agent that had taken the matter under an assignment. The declarant thus was unqualified to say anything other than that he had received the documents from the bank. That isn’t enough to lay business records foundation because it doesn’t establish that “[t]he sources of information and method and time of preparation [of the records] were such as to indicate [their] trustworthiness.” See Cal. Evid. Code § 1271. So the documents and related testimony were hearsay that should have been excluded. And since they were the only evidence that the defendant actually owed the debt at issue, their admission was prejudicial.


Kinda reminds me of something I once heard on the radio.

Monday, September 28, 2015

That Defense Isn't Special. Or, for that Matter, a Defense.

Tracy v. City of Pico Rivera, No. B258563 (D2d2 Sept. 15, 2015)

A contractor can’t recover its fees in a payment dispute if it isn’t validly licensed. Defendant contested the validity of Plaintiff’s license. It convinced the court to hold a bifurcate the license issue and try it first without a jury as a special defense not going to the merits under Code of Civil Procedure
§ 597.

Problem is, in a contractor case, lack of a license isn’t a defense, special or otherwise. Being licensed is an affirmative element of Plaintiff’s claim. A claim under which Plaintiff had a jury trial right. So when the trial court relied upon § 597 to hold an advance bench trial on the licensure issue, it deprived Plaintiff of a jury finding on the issue. That was reversible error.


Friday, September 25, 2015

$140 Buys Plaintiff $100k Extra.

AP-Colton LLC v. Ohaeri, No. E059505 (D4d2 Sept. 15, 2015)

Plaintiff filed a limited civil case in a real estate dispute, seeking damages under $25k. Defendants filed a cross-claim seeking $1 million—more than enough to put the case into unlimited civil. But they never paid the $140 reclassification fee. Plaintiff then amended, seeking well over the $25k threshold. It didn’t pay the fee either, asserting that was on Defendants. Plaintiff won a $125k verdict, and Defendants appealed, arguing that the case should have remained limited civil with a $25k max, since nobody ever paid the fee to reclassify the case as unlimited.

The court of appeal says that’s right, mostly. Since nobody paid the reclassification fee, the case should have stayed in limited civil. But it was Defendants who, having purported to turn the case into an unlimited civil with their million-dollar cross-claim, never filed the fee. And indeed, when they took their appeal, Defendants took steps to make sure the case went to the court of appeal and not to the appellate division of the superior court, where limited civil appeals are supposed be heard. Under the circumstances, judicial estoppel precluded Defendants from objecting to an award exceeding $25k on appeal. They took several positions inconsistent with the case remaining limited civil. So equity should hold them to that. Subject, that is, to the Plaintiff ponying up the $140 fee to the clerk on remand.


Wednesday, September 23, 2015


How long will my appeal take from notice to resolution? What are the chances of a particular division of the court of appeal taking up my writ on the merits? How many authorized judges does Modoc County have?

All this, lots more data, plus some cool maps and charts in this year's California Courts Statistical Report from the California Judicial Council.

The Administrative Writ SOL Is Longer for Yes than for No.

Simonelli v. City of Carmel-by-the-Sea, No. H040488 (D6, as modified Sept. 28, 2015)

A homeowner filed a petition for writ of administrative mandamus against sued a city, challenging its issuance of a development permit for the lot next to hers. But she didn’t join the developer. The superior court denied the writ for failure to join an indispensable party, and then refused to permit her to amend because here petition was supposedly too late under a ninety-day statute of limitations in Code of Civil Procedure § 1094.6.

The court of appeal says the trial court was right on the first issue. Granting the writ would invariably affect the developer’s rights, which makes the developer a quintessential indispensable party § 389. But it got the statute of limitations issue wrong. Section 1094.6 applies to a writ challenging a local agency’s denial or revocation of a permit. It says nothing about a petition objecting to a granted permit application. So the homeowner should have been permitted to amend her petition to add the developer.


Friday, September 18, 2015

Cut and Dry

Barker v. Fox & Assocs., No. A142373 (D1d2 Sept. 10, 2015)

Trial court denied an anti-SLAPP motion in a defamation case. Nobody really disputes that the claims—addressing statements made in connection with conservatorship proceedings—arise from protected activity. But plaintiff failed to come forward with both evidence that established the prima facie the elements of his claim, as well as evidence of malice sufficient to overcome the qualified “common interest” privilege under Civil Code § 47(c). So the motion should have been granted.


Thursday, September 17, 2015

Prevailing as One Is Not Prevailing as Many

Kahn v. The Dewey Grp., No. B259679 (D2d3 Sept. 8, 2015)

Plaintiff, a mobile home tenant, alleges that twenty different defendants caused him to be exposed to harmful industrial chemicals that were disposed of on land that would later become the trailer park. All twenty defendants jointly made a Code of Civil Procedure § 998 offer of judgment for $75,000. Fourteen defendants got out on nonsuit. The other six went to a trail, where the jury deadlocked and a mistrial was declared. Although the retrial was pending, the fourteen nonsuited defendants moved to recover their proportionate share of expert costs, which the trial court granted. Plaintiff appealed.

Wednesday, September 16, 2015

From a Bum Seed, a Forest Grows

Park v. Bd. of Trustees of Cal. State Univ., No. B260047 (D2d4, as modified, Sept. 1, 2015)

This anti-SLAPP case goes awry along the same lines as last spring’s DeCambre decision. It assumes that, because statements made during a university’s faculty and tenure selection processes are protected as matters of academic freedom, a complaint alleging unlawful national origin discrimination in awarding tenure addresses “protected activity” under the anti-SLAPP statute.

SLAPPing a Cybersquat

Collier v. Harris, No. G048735 (D4d3 Sept. 1, 2015)

In connection with a hotly disputed school board election in a tony part of the OC, a supporter of one bloc of candidates allegedly did some cybersquatting. She bought some Internet domain names that appeared to refer to the opposing bloc’s agenda and then used them to redirect traffic to her own bloc’s websites. An activist from the opposing side sued, alleging claims for invasion of privacy, false impersonation, and the illegal use of an Internet domain name. Defendant responded with an anti-SLAPP motion, arguing that registering a domain name in connection with a political campaign was an act in furtherance of free speech protected under Code of Civil Procedure § 425.16(e)(4). The trial court denied the motion because, as it saw the facts, the claims arose from the misleading redirection of Internet traffic and not from any speech itself.

Tuesday, September 15, 2015

Manufacturing Consent

Michaels v. Turk, No. E060854 (D4d2 Aug. 31, 2015)

I once had a pro bono case in LA County mental health court where we were trying to get our client released from a county-imposed conservatorship. We won. It took less than half an hour hanging in that Glassell Park courtroom to recognize that the joint suffers from a severe breakdown of a functioning adversarial process. Most of the putative conservatees are represented by public defenders who don’t actually much try to win. Presumably, they believe in good faith they are acting in their clients “actual” best interestsas opposed to their stated onesby letting them stay wards of the county. In the twenty or so hours I spent sitting around waiting to be called for various matters, I probably watched more than fifty hearings. In all the time I was there, my guy was the only one to leave through the front door.

Anti-Slapp Benchslap

Hewlett-Packard Co. v. Oracle Corp., No. H039507 (D6 Aug. 27, 2015)

Defendant in this case filed an anti-SLAPP motion in between phases of a two-phase trial. The trial court denied it because it was filed long past the sixty-day window in Code of Civil Procedure § 425.16(f), and because Defendant lacked a substantial justification for the late filing. Defendant then effectively deep-sixed the second phase of the trial by taking an immediate appeal. The court of appeal is not too very happy about the way this all played out. 

Monday, September 14, 2015

Do Not Go Gently into the Tribunal de Grande Instance

Auffret v. Capitales Tours, S.A., No. H040630 (D6 Aug. 21, 2015)

This is a forum nonconveniens case is similar to the Schmidt case we discussed back in February and the Diaz-Barbra case from April. California law affords a trial court two options if it decides that a California forum is inconvenient—it can stay or it can dismiss. Either way, a key to the analysis is that the alternative forum is “suitable.” Sometimes, a foreign forum is suitable on a theoretical basis, but there are contingencies—such a foreign courts interpretation of its own procedure—that could potentially deprive the plaintiff of any remedy at all. If that’s the case, a stay until it’s clear that the foreign forum will hear plaintiff’s claim is the preferred course.

Thursday, September 10, 2015

SLAPP Exception Applies to Keyword Manipulation in Taxi Ads

L.A. Taxi Cooperative, Inc. v. The Indep. Taxi Owners Assoc. of L.A., No. B255909 (D2d4 Aug. 20, 2015)

A cooperative of taxicab companies sued another cooperative for false advertising on the Internet. Allegedly, defendants were buying keyword search terms from search engines that would return Defendants’ links when customers searched for contact information for Plaintiff’s company. Defendants filed an anti-SLAPP motion, claiming that claims arose from speech protected under Code of Civil Procedure § 425.16(b)(1). After Plaintiffs opposed, Defendants stipulated to take the motion off calendar. But they then refiled an essentially identical motion, without even trying to address the arguments Plaintiffs made in their prior opposition.

A Law Licence Is Necessary, But Not Sufficient, to Invoke CCP § 340.6

Lee v. Hanley, No. S220775 (Cal. Aug. 20, 2015)

Code of Civil Procedure § 340.6 provides a one-year-from-discovery statute of limitations in an “action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services[.]” As reported here, here, here, here, here, and here, there is a longstanding split of authority over how broadly to read the statute, particularly with respect to certain torts that, if committed by anyone other than an attorney, might have a much longer limitations period. 

Some courts have read the statute literally, to include, for instance, a malicious prosecution action against a lawyer. Others, including the case on review here, have looked to the spirit of the statute and limited its application to cases of attorney professional negligence. The California Supreme Court stepped in to resolve the split.

Wednesday, September 9, 2015

A Little Order for a Change

Assoc. for L.A. Deputy Sheriffs v. L.A. Times Commc’ns LLC, B253083 (D2d3 Aug. 19, 2015).

The anti-SLAPP statute takes a lot of heat, often deserved, because it can interfere with claims that have little or nothing to do with anyone’s legit First Amendment rights. But this here is the quintessential anti-SLAPP motion. A cop union sued The Los Angeles Times on behalf of anonymous deputy sheriffs to obtain a prior restraint order enjoining the paper from reporting that some new deputies hired by the Los Angeles Sheriff’s Department had skeletons in their closets. According to the complaint, the reporter had obtained confidential background check information—including allegations about prior misconduct—that he intended to use in reporting a story.

After the Union’s TRO motion was unceremoniously denied because it sought relief that wasn’t even available for the Pentagon Papers, the LAT filed an anti-SLAPP motion, which the trial court granted. The union does not seriously contend that its claims don’t arise from protected activity. Instead, it argues that the anti-SLAPP remedy is barred because the LAT’s conduct was “illegal as a matter of law.” It tried to support this assertion with some anonymous declarations that stated, effectively, that the background check materials were confidential so that anyone who obtained them must have done so through illegal means. The union did not, however, actually provide any evidence that anyone at the LAT stole the files or received them with knowledge that they were stolen. Moreover, the the First Amendment protects the right of the press to publish or disclose information contained in documents that had been illegally obtained by others. So by no means could the Union show that the LAT’s actions were “illegal as a matter of law.”

Moving on to the merits, the Union’s claim had none, of course, because it sought to impose a prior restraint on the press. See N.Y. Times Co. v. United States, 403 U.S. 713 (1971). The Union makes various specious arguments why the standard doesn’t apply. But c’mon! As the court explains “[h]ere, a labor union and unnamed officers seek to stop a newspaper from publishing news reports about the hiring and evaluation of officers, including allegations of past misconduct.” 


Be Careful what You Stip to ...

Needelman v. Dewolf Realty Co., Inc., No. A141306 (D1d3 Aug. 18, 2015)

To buy some time in his apartment, Plaintiff settled an unlawful detainer case with his Landlord by entering a stipulated judgment. The judgment let him stay in the apartment, rent free, for several additional months, conditioned on his abiding by the building’s house rules. The judgment further provided that, if the landlord received a verified complaint that Plaintiff broke the rules, the landlord could enforce an unlawful detainer through ex parte application and kick him out, that any property left behind would be deemed abandoned, and that plaintiff waived any action for wrongful eviction arising out of the tenancy. When, two months later, fellow tenants complained that Plaintiff appeared naked, banging on his door, at 4 am, Landlord did just that.

Tuesday, September 8, 2015

You Can Only Ask Once.

Hi-Desert Med. Cntr. v. Douglas, No. 253268 (D2d2, as modified, Sept. 15, 2015)

Some hospitals challenged the enforcement of a state Medicaid law. They took a two-pronged attack. First, they filed mandamus proceedings in Superior Court, seeking to enjoin the enforcement of the statute. They did not, however, seek damages in mandamus. Instead, they also filed administrative actions with the California Department of Health Care Services, seeking to have certain funds refunded, based on their theory that the law was unenforceable. They agreed to stay their admin proceeding pending the action on their writ.

Friday, September 4, 2015

Retroactive Post-Judgment Interest

Chodos v. Borman, No. B260326 (D2d5 August 18, 2015)

This is an appeal after remand of this case, where the court of appeal modified a judgment in a quantum meruit
case because the trial court for permitted the jury to include a lodestar multiplier when calculating an attorney’s fees owed by  his former client. The question on this second appeal is: From when and for how much does post-judgment interest run? The court holds that because the prior appeal only reduced the amount of the judgment, but did not reverse it on the merits, post-judgment interest should run from the date of the original judgment, but in the modified amount.


FWIW, this is the 400th post on this blog. Thanks to our readers for all your support!

Tuesday, September 1, 2015

Conflicts and the Dissolving Partnership

Coldren v. Hart, King & Coldren, Inc., No. G050202 (D4d3 Aug. 5, 2015)

Departing Partner in a 50/50 two-partner law firm sued his Firm and his Remaining Partner over the terms of his retirement. Firm and Remaining Partner sued back. Remaining Partner and Firm were represented in the litigation by the same Attorney, who had never previously represented Firm or Departing Attorney. Departing Partner brought a DQ motion, claiming that Attorney couldn’t represent both Remaining Partner and the Firm—in which Departing Partner continued to claim his 50 percent stake. After waffling on the tentative, the trial court granted the motion. 

But the court of appeal reverses. The decision rests on two grounds.

Monday, August 31, 2015

A $32.5 Million Discovery Mistake

Soto v. Borgwarner Morse Tec Inc., No. B252995 (D2d4, as modified August 20, 2015)

Although some law-and-economics attuned federal judges have doubted the rationale behind the rule,* in California, the defendant’s economic condition and ability to pay are matters a jury must assess in awarding punitive damages. Indeed, the California Supreme Court considers them so important that if the trial record doesn’t contain meaningful evidence of the defendant’s economic condition, punitive damages can’t be awarded. See Adams v. Murakami, 54 Cal. 3d 105, 112 (1991).

Wednesday, August 26, 2015

Sonic III

Sanchez v. Valencia Holding Co., No. S199119 (Cal. Aug. 3, 2015)

This case is kind of a do-over of the second half of Sonic-Calabasas A, Inc. v. Moreno, 51 Cal. 4th 659 (2013) on the law of unconscionability as it applies to arbitration agreements. Justice Liu, joined by most of the court, thinks there are various articulable standards for substantive unconscionability, all of which more or less mean some kind of unilateralism or unfairness that goes well beyond just striking a bad deal. Justice Chin (no longer joined by Justice Baxter, who has since retired) thinks the court should settle on a “shocks the conscience” standard, which he believes to impose a higher burden than other formulations.

This time, however, the court gets to the merits. Everyone agrees that under whatever standards they might apply, the provisions at issue—various limits and exceptions to a contractual right to a de novo appeal to a three-arbitrator panel—aren’t unfair enough to render the agreement substantively unconscionable.


Clawback Principles Apply in PRA Petitions

Newark Unified School Dist. v. Superior Court, No. A142963 (D1d1 Jul. 31, 2015)

In an opinion that dives deep on legislative history issues outside the scope of our coverage, the court of appeal holds that clawback principles applicable to ordinary civil cases apply to privileged documents that are inadvertently produced in response to requests under the Public Records Act.

Tuesday, August 25, 2015

Grant, Grant Not, Reverse, Reverse Not, Depub, Repub, But Is There Amend?

Rodriguez v. RWA Packing Co., No. S214150 (Cal. Jul. 29, 2015).

This is a Supreme Court order releasing a case from a grant-and-hold pending its decision on a case addressing related issues. Having decided the related case consistently with the court of appeal’s decision here, the Court orders the case republished, but amends a footnote to delete a reference that the related case is currently under review. I suppose that clarifies things. But does the Supreme Court have the authority to just order the amendment of an opinion on repub? Don’t think that’s in the rules. Inherent authority? And how is Westlaw going to handle the keycite?

Monday, August 24, 2015

So Much for Gatekeeping . . .

Green v. City of Riverside, No. D067424 (D4d1 Jul. 29, 2015)

This case arises from the kind of unfortunate interaction between the cops and the mentally ill that seems to happen every day nowadays. An obviously unstable guy is found dancing in the sprinklers at a church in Hemet, wearing only his underwear and saying crazy stuff. Someone calls 911. Cops show. Things escalate. There’s a confrontation. Tasing ensues. Three times. An asphyxiation-friendly move gets used to put the cuffs on. The guy winds up brain dead. And then fully dead. The coroner pins it on a “bad heart.” And a trial before a Riverside jury results in a defense verdict.

Friday, August 14, 2015

Mind Those Pro Hacs

 Golba v. Dick's Sporting Goods, Inc., No G049611 (D4d3 Jul. 24, 2015)

This case is a consumer class action against a retailer for collecting zip codes. It eventually settled for a crappy coupon settlement. The laboring oar of the plaintiff work had been performed by an out-of-state attorney from Chicago. The local counsel who signed the complaint filed a pro hac vice motion—including a declaration that the Chicago attorney hadn’t been admitted pro hac in California in the last two years. But he failed to pay the required fee and inform the state bar, so the motion was denied. Unfortunately, nobody checked on the status of the motion, and plaintiffs proceeded as if the application were granted.

Tick, Tick, Tick . . .

Rutledge v. Hewlett-Packard Co., No H036790 (D6 July 22, 2015)

This case presents a grab bag of arguments on an appeal of a trial court’s granting of summary adjudication in a ten-year-old class action involving allegedly defective computer parts. Of procedural interest are a pair of issues about class certification and two issues related to discovery sanctions. In particular, one of the sanctions orders highlights a potential trap involving motions to compel productions of documents under third-party subpoenas.

Let’s focus on the interesting* issue first.

Thursday, August 13, 2015

Break Time ...

Safeway v. Superior Court, No. B255216 (D2d4 Jul. 22, 2015)

This is yet another class cert decision that turns on the Supreme Court’s 2012 decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012). The class is huge—like 200,000 grocery employees over five-and-a-half years. The theory is that Safeway had a consistent practice of not paying the premium wages required under Labor Code § 226.7 “when required,” i.e., whenever it caused the employee to miss a meal break. It’s pretty clear that the top-level theory is certifiable. If a company has a policy of not doing something it’s required to do under wage and hour law, that usually falls within the Brinker standard. The real point of contention is that a premium wage is only owed if the employee doesn’t actually get her break.

Does that mean that, in the absence of a policy not to allow breaks—no one contends that existed—the court will need to do an employee-by-employee assessment of whether breaks were missed? The court of appeal says no. All that has to be shown is a significantly common injury that is subject to class-wide proof. Here, a sampling of Defendants’ payroll records showed that it never paid premium wages under § 226.7, and that there were numerous instances where meal breaks were not clocked during shifts of five or more hours. (Indeed, plaintiffs’ expert said there were potentially tens of millions of them, based on statistical extrapolation.) Although that wouldn’t make Defendant liable per seBrinker settled the point that an employer isn’t be liable if a meal break is offered but not taken—the records warrant a rebuttable presumption that the breaks were unlawfully withheld. Given that these points are subject to class wide-proof, the court holds that the trial court did not err in certifying a class.