Thursday, April 30, 2015

Of Proofs and Postmarks

Simplon Ballpark v. Scull, No. D06291 (D4d1 Mar. 30, 2015)

I don’t often think about proofs of service. A legal assistant attaches them after my work is done. But when they go wrong, they can go really wrong, especially when a jurisdictional deadline is at issue.  The court here reads the mail service statute to save a defendant, who lost at trial but won a JNOV, and then almost lost again due to a postmarking issue. 

Most documents can be served by mail. Code of Civil Procedure § 1013a addresses the various methods of proof of that service. Apropos here, § 1013a(1) permits proof by attesting that the document was “deposited in” the mail. On the other hand, § 1013a(3) permits proof of service by attestation that the mail was placed in an outgoing mail bin, when an established office practice is to combine the binned mail and give it to the post office on the same day. That proof, however, is presumed invalid if the postmark is more than one day after the pleading was supposedly served. The presumption is a burden-shifting rebuttable presumption. I.e., it affects the burden of coming forward with evidence.

The court here first finds that this wasn’t § 1013a(1) service. In light of the statutory structure, “deposited in” requires a declaration stating the date and place where the document was actually delivered to the postal service or put in a mailbox. That’s not what was at issue here.

As far as §1013a(3) goes, the one-day postmarking presumption applies only “upon motion of the party served.” Thus, to be entitled to the benefits of the presumption of non-compliance, the served party must file a motion or application seeking an invalidation of the service. Since plaintiff never filed a motion to invoke the presumption, the burden never shifted to defendant. Because of that, defendant never received notice that it would have needed to submit evidence in rebuttal. So plaintiff’s argument that there was no jurisdiction for the trial court to address the JNOV due to late service was forfeited in the trial court.


Lost Demurrer Saves the Day

Gallup v. Superior Court of Nevada County, No. C073452 (D3 Mar. 30, 2015)

Not much to see here, decidin’-wise. But it’s pretty rare to see a court reverse the denial of a demurrer when a case has subsequently made it all the way through trial and ended in a plaintiff verdict.

Railroad Isn't at Home in California

BNSF Railway Co. v. Superior Court, No. B260798 (Mar. 27, 2015)

This is an asbestos case.  Plaintiffs are the heirs of a man who died from meso contracted through asbestos exposure in Wichita, Kansas. One defendant is BNSF, which is a Delaware Corporation with its headquarters in El Paso, Texas. BNSF moved to quash service based on lack of personal jurisdiction. Given the location of the exposure, there’s no specific jurisdiction because nothing connects the plaintiff’s injury to California. As to general jurisdiction, the new Daimler standard says there’s only general jurisdiction where a company is “at home,” which is essentially where is is headquartered. Plaintiff tried to wiggle out of that by arguing the BNSF does a lot of business in California and that Daimler was distinguishable because it involved a truly foreign defendant. The trial court took the bait.

On a writ, the court of appeal doesn’t. The Daimler test doesn’t ask if a company does a bunch of business. It asks if it is “at home.” So the fact that BNSF does big business in California doesn’t much matter. On the latter point, the court gives a good quote on stare decisis: “Factual differences between the case at bar and the four general jurisdiction cases considered by the high court do not render the broad principles enunciated in those cases inapplicable to the situation here.” 

Writ granted.

Update: Review granted, July 23, 2015.

Legal Malpriactice Is Not Subject to SLAPP

Loanvest I, LLC v. Utrecht, No. A141564 (D1d3 Mar. 26, 2015)

Superficially, claims of litigation malpractice seem like they arise from protected petitioning activity under the first prong of the anti-SLAPP analysis. After all, litigation is quintessential petitioning activity. But when you scratch the surface, the gist of the claims isn’t really the petitioning itself; it is that the petitioning was incompetent. So while claims against attorneys by third parties and claims against attorneys for petitioning on behalf of other clients generally come within the ambit of Code of Civil Procedure § 425.16(e), claims by a client based on petitioning on behalf of that client do not. A pretty long line of cases bears this out.  


Monday, April 27, 2015

Res Judicata Does Not Bar Collections Action

McCready v. Whorf, B253164 (D2d6 Mar 24, 2015)

Code of Civil Procedure § 683.050 expressly authorizes a separate action to enforce a judgment. Unsurprisingly such an action will not, by its very nature, be barred by res judiciata for failure to collect in the underlying case. 


And no, not that Whorf,


Boyce v. T.D. Serv. Co., No. B255958 (D2d6, Mar. 23, 2015)

This is a typical mortgage foreclosure avoidance case of the sort that have been clogging up the courts for quite a while now. Plaintiff in this case had previously went bankrupt, during which proceedings a federal bankruptcy court determined that a foreclosure wouldn’t be wrongful, which the federal district court affirmed. And a state court also made a similar finding in an unlawful detainer case that determined that plaintiff no longer had a right to occupy the home. So unsurprisingly, plaintiff’s case here was doubly barred by res judicata. 

The court—the Ventura panel that handles the D2 cases from Santa Barbara—concludes with sort of a tribute quote from Judge Aldisert, a recently departed judge of the federal Third Circuit Court of Appeals who had for several decades located his his senior-status chambers in S.B.: “As the late eminent federal appellate jurist Rugierro Aldisert would say, ‘Basta,’ which translates from Italian to English as, Enough!”


Update: Review granted, July 15, 2015.

I Want My Two Dollars . . . .

Hyundai Motor of Am. v. Superior Court, No. G051279 (D4d3 Mar. 20, 2015)

The is a Song-Beverly warranty case where the Hyundai made a full value plus attorneys’ fees offer under Code of Civil Procedure § 998 for the entire value of a car plaintiff claimed was a lemon. Plaintiff took the offer. The trial court awarded him $42k in attorneys’ fees. Plaintiff also demanded post-judgment interest on the fee award, running from the acceptance of the § 998 offer. The court declined. After all, judgment hadn’t been entered yet.

Hyundai paid off the entire fee amount—with judgment still not yet entered—but Plaintiff claimed the payout was $462.50 short for interest between the fee award hearing and the payoff. Plaintiff’s counsel then began judgment enforcement proceedings for his four hundred bucks, including noticing a judgment debtor exam of the CEO of Hyundai’s US sub. Plaintiff also filed a number of cost memos demanding ever-increasing cost awards.

Hyundai challenged the cost memos with the trial court. It determined that, notwithstanding the fact that judgment had not been entered until shortly before the hearing, its fee award was, in effect, an enforceable judgment that accumulated 10 percent post-judgment interest from the date of the order.  Hyundai took a writ.

This isn’t too hard. Post-judgment interest accrues from the entry of final judgment.  No judgment, no post-judgment interest. That includes cases where § 998 offers are accepted and judgment isn’t entered till later. And it also includes pre-judgment fee awards that are later subsumed into a final judgment. 

Writ granted.

The court of appeal goes on to explain that a peremptory writ—a writ granted without following the formal order to show cause process—is appropriate in this case. The court issued a Palma notice—a warning that it was considering entering a peremptory writ so the respondent better chime in right away. Upon reviewing plaintiff’s Palma response, it decided Hyundai’s right to relief was clear. Moreover, the court took particular notice of plaintiff’s counsel’s unprofessional move of noticing an apex judgment debtor exam of Hyundai America’s CEO to collect on a bogus $462.50 debt. The court felt like that kind of ridiculous litigation tactic required it to step in on an emergency basis.

Sunday, April 12, 2015

SLAPP Madness

Trilogy at Glen Ivy Maint. Assoc. v. Shea Homes, Inc., No D066483 (D4d1 Mar. 19, 2015)

This is a dispute between an HOA and a developer about who was entitled to some license payments from a cable company that used a planned community’s common infrastructure to distribute its services. The contract was signed by the developer, but the services were applied after the control of the common areas passed to the HOA, and the developer tried to keep the cash. The HOA sued the developer for breach of fiduciary duty for diverting the revenues of under the contract to its own use.

As happens far too often these days, the developer filed an anti-SLAPP motion. It made a mostly inscrutable argument that the case didn’t really arise from the HOA’s claim that it failed to fork over the money. Instead, the case purportedly arose from the developer’s denial of an allegation in its answer to an earlier version of the complaint in this very case. Fortunately, neither the trial court nor the court of appeal buy into the BS. 


The Evidence Code as Suicide Pact

Amis v. Greenberg Traurig, No. B248447 (D2d3 Mar. 18, 2015)

This is a malpractice case where attorneys allegedly gave bad advice to their client. They advised him to accept personal liability on a settlement with his corporation, even though it would be nearly impossible to prove personal liability at trial. When that decision ultimately resulted in significant losses to the client, client sued for malpractice. Client’s problem is that allegedly bad advice was given during a mediation, and the mediation privilege in Evidence Code § 1119 prohibits use of pretty much anything done or said in connection with a mediation from ever being used in a future litigation. So when it came time for summary judgment, plaintiff didn’t have any admissible evidence to prove his claim.

You might be thinking that it doesnt really make any sense to apply the mediation privilege to malpractice claims based on bad legal advice in connection with a mediation. Especially when the attorney-client communications are made outside the presence of the other participants in the mediation. Why would the mediation privilege protect that? The Supreme Court basically agrees that its senseless. See Cassel v. Superior Court, 51 Cal. 4th 113, 122 (2011). But taken literally, the Evidence Code unambiguously encompasses the advice. Given California’s strong rule against the judicial creation of policy based exceptions to statutory privileges, not making sense is not really a valid reason to enforce the privilege as written. The policy implications arising from the overbreadth of the privilege are the Legislature’s problem. That’s what the court said in Cassel, and the court here follows the rule.


Deny This!

City of Glendale v. Marcus Cable Assocs., No B249094 (D2d5 Mar. 18, 2015)

In a dispute with a cable provider, the City of Glendale denied an RFA on an issue that it ultimately lost at trial. After finding that Glendale lacked a reasonable basis for the denial, the trial court awarded the cable company the costs and fees associated with proving that fact under Code of Civil Procedure § 2033.420.

The court here holds at a federal telecommunications law that limits the available relief in such cases to injunctive and declaratory relief precluded recovery of a monetary award under § 2033.420. The crux of the court’s analysis is that a § 2033.420 award isn’t really a discovery sanction, but is instead similar to a statutory award of costs and attorneys’ fees. Because federal cases had held that the federal statute barred recovery of these kinds of items, the court of appeal bars a § 2033.420 recovery in this case.


Friday, April 10, 2015

The One True Judgment

Baker v. Castaldi, No F067687 (D5 Mar. 16, 2015)
This appeal follows from a really confusing multi-stage trial that resulted in series of “judgments” being entered. Apparently, the judgment being appealed foresees the trial court holding a further trial on punitive damages.

That isn’t appealable even if the trial court erroneously called it a judgment.

Appeal dismissed.

Arb Agreement in Employee Handbook Prevails

Serafin v. Balco Props. Ltd., No. A141358 (D1d4 Mar. 16, 2015)

After an employee lost on the merits in an arbitration, she challenges the enforceability of an arbitration agreement contained in her employer’s employee handbook.  The court here affirms.

Thursday, April 9, 2015

But Causes of Action Don't Arise from Defenses

DeCambre v. Rady Children’s Hospital-San Diego, No. D063462 (D4d1, as modified Apr. 2, 2015)

Plaintiff is a doctor who got fired. She says it was racial harassment, discrimination, and retaliation. The hospital says it was the culmination of its peer review process. The hospital brought an anti-SLAPP motion, arguing that the peer review process is protected activity, and the trial court granted it. That was wrong. In the anti-SLAPP analysis, plaintiff’s claims “arise from” her own claims. Here, that was the harassment, discrimination, and retaliation, which are not protected activity. The peer review process, which unquestionably protected is, is only the hospital’s defense.  

Wednesday, April 8, 2015

Anti-SLAPP Victor Can Collect Fees for Collecting

York v. Strong, No. G049778 (D4d3 Mar. 10, 2014)

Plaintiff who prevailed on an anti-SLAPP motion in a prior case won an attorneys' fee award. She then incurred more fees in collecting on it.  Under Code of Civil Procedure § 685.040, fees incurred in collection are awardable if the underlying judgment includes an award of fees when they are included as costs.  

The statute specifically references that that is the case when fees are awarded under § 1033.5(a)(10)(A), which permits an award of fees as costs when permitted by contract. But fees awarded in an anti-SLAPP victory are awarded as costs under § 1033.5(a)(10)(B) or (C)—as authorized by statute or law.  But the reference to § 1033.5(a)(10)(A) was not intended to limit an award of fees as costs on collection. It was specifically added to legislatively reverse an earlier case holding that a judgment that included an award of fees based on a contract—awardable under § 1033.5(a)(10)(A)—did not merit an award of fees incurred in collection. In any event, the Supreme Court essentially already decided this issue in Ketchum v. Moses, 24 Cal. 4th 1122, 1141 n.6 (2001) so there was no reason to go the other way.


Prejudgment Interest on Costs Denied

Bean v. Pac. Elevator Corp., No. D064587 (D4d1 Mar. 10, 2015)

Under Civil Code § 3291, if a personal injury plaintiff makes and then beats an offer of judgment under Code of Civil Procedure § 998, plaintiff gets ten percent prejudgment interest on the ultimate award from the date of the offer until judgment is entered. The court here holds that, although the statute is no model of clarity, the plaintiff is entitled to prejudgment interest only on the part of the judgment that is attributable to personal injury damages. That doesn’t include costs that are ultimately added to the judgment. So prejudgment interest under § 3291 can’t include interest on costs.

Reversed in relevant part.

Some Special Solicitude to the Government's Primary Rights

People v. Superior Court (Cahuenga’s the Spot), No. B257222 (D2d5 Mar 9, 2015)

LA city attorney Mike Feuer is suing to shut down some medical marijuana operations. The city seeks a bunch of different remedies like nuisance abatement, injunctions, and civil penalties. The city moved for summary judgment on liability only and some equitable remedies, arguing that it was legally and factually indisputable that the operations were in violation of the law. But it did not move on civil penalties. The trial court denied the motion, on the grounds that it did not dispose of the whole cause of action.

The city took a writ, which the court here grants. According to the court, unlike damages, which are clearly an element of a cause of action, civil penalties and equitable relief are extrinsic to it, at least as “cause of action” is understood under primary rights theory under which a single cause of action can have several different remedies. Relying on People v. Superior Court (Jayhill), 9 Cal. 3d 283, 288 (1973)—which held that several UCL “violations” subject to separate statutory penalties all fell within the same primary right—the court holds that a summary judgment on liability that did not resolve the remedies issue nonetheless was sufficient to resolve the entire cause of action.

Writ granted.

I have to say, I don’t really understand the reasoning of this opinion. Based on its logic, a civil plaintiff should be entitled to a summary judgment if it can establish that damages exist even if the number is disputed. But several cases—not addressed heresay otherwise. The reliance on the notoriously vague primary rights theory compounds my confusion. (Viz., each dollar of damage on a breach of contract also doesn’t violate a separate primary right.) I really doubt that any appellate court would entertain such an argument by a private plaintiff. But it’s the government, so . . . .

Monday, April 6, 2015

To Define Is Not to Find

Aguirre v. Amscan Holdings, Inc., No. C073059 (D3 Mar. 6, 2015)

Those who follow California consumer law know that it’s a no-no under the Song-Beverly Credit Card Act for a retailer to unjustifiably ask for a customer’s zip code as a condition of accepting a credit card payment. See Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011). But when a class action claim is brought for that violation, how do you figure out who is in the class?

Confusing Gluttony for Gandhi

Animal Legal Defense Fund v. LT Napa Partners LLC, No. A139625 (D1d5 Mar. 5, 2015)

Kind of a head-scratcher. Defendant allegedly served foie gras in violation of California’s ban by pretending it offer it as a “gift” in connection with other ordering other food. Plaintiff sued for violation of the ban. Defendant filed an anti-SLAPP motion, arguing that its actions were expressive activity protected by the statute because they were undertaken with the intention of protest against the foie gras ban. The trial court denied it.

Vexatious Dad Can't Collaterally Attack Pre-Filing Order

In re Marriage of Rifkin and Carty, No. A139484 (d1d4 Mar. 6, 2015)

The father in a contentious child custody dispute got himself declared a vexatious litigant and hit with a pre-filing order. Father (pro se, of course) filed but abandoned an appeal of that order. He later moved to vacate it under § 391.8(a) of the Code of Civil Procedure, which was denied. He appealed again, which is where things currently stand.

First things first, Dad can’t directly challenge the propriety of the underlying order in this appeal. Appellate courts can’t review a decision from which a previous appeal could have been (or here, was) taken as a matter of right.  Moreover, he didn’t argue that the order appealed in this case—the order denying his motion vacate—under the relevant standard, which requires him to show that there had been a “material change of facts” to get him off the naughty list. 

But even if it were to reach the merits of the underlying order, the court would affirm. Father clearly did a bunch of stuff in the custody dispute that meets the standard for being a vexatious litigant: i.e., a person “while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.” The fact that they were family court proceedings didn’t take him out of the definition.

Finally, although Father tried to address in this appeal the trial court’s attorney fee award based on his vex, that award was separately appealable and he didn’t file a notice. So no dice.

Affirmed, even though Mother never filed a respondent’s brief.

Friday, April 3, 2015

A Truly Indispensable Joint Tortfeasor?

Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of Am., No. B253227 (D2d6 Mar. 3, 2015)

Defendants’ hillside collapsed into their neighbor’s property, allegedly because they had altered water courses and removed vegetation when they expanded their agricultural operations. Defendants were required to obtain planning approval from a Ventura County planning agency. For reasons unexplained in the opinion, the engineering work on that application was performed by an employee of Natural Resource Conservation Service, which is part of the federal government, and which was not joined as a defendant. Defendants moved to dismiss under Code of Civil Procedure § 389 for failure to join an indispensable party.