Tuesday, May 19, 2015

Wage & Hour Violations Aren't "Personal Inuries" for Default Purposes

Rodriguez v. Cho, No. B256985 (D2d8 May 7, 2015) 

Plaintiff, who cleans offices, filed a wage and hour case against defendant, her employer. The prayer in her complaint demanded damages to be proven at trial and a $10,000 civil penalty. Along with the complaint, she served a “statement of damages” demanding $3.2 million in general, special and punitive damages.  Defendant defaulted.  At the damages prove up, plaintiff’s prove-up documents sought a little less than $300k.  The court ultimately entered a default judgment for about $130k.

Three-and-a-Half Years of Appellate Litigation over a $5,368.88 Cost Award

Williams v. Chino Valley Ind. Fire Dist., No S213100 (Cal. May 4, 2015)

Appellate litigation in California can be a long game. The complaint in this case was filed in February 2008. The trial court order at issue—an award of $5,368.88 in costs to a prevailing defendant in a FEHA case—was entered on November 19, 2011. I wrote about this case in the third post on this blog, way back in the summer of 2013. The Supreme Court granted review that fall. And now nineteen months and 350-ish posts later, the court reverses the court of appeal.

Monday, May 18, 2015

Demurrer:Poorly Pleaded Breach of Contract::Certiorari:Almendarez-Torres Was Wrongly Decided

Miles v. Deutsche Bank Nat’l Trust Co., No. G050294 (D4d3 Apr. 29, 2015)

Another mortgage case. The details don’t really matter, but it addresses two procedural rules.

First, if a demurrer is sustained with leave to amend, and plaintiff declines to amend within the allotted time, the case gets dismissed and judgment entered for defendant. But plaintiff’s failure to amend does not waive his right to appeal. That's pretty obvious.

The second deals with demurring to a breach of written contract claim. One would think that either the contract needs neither to be attached as an exhibit or its relevant terms stated literally in the complaint. Nope. Venerable California precedent says that a contract can be plead “according to its legal effect[.]”  Stoddard v. Treadwell, 26 Cal. 294, 303 (1864) (“A contract may be declared on according to its legal effect or in hæc verba.”). Which basically means that the plaintiff can get away with pleading a bunch of conclusory stuff that might or might not be supported by the text of the contract and make the defendant suck it up till summary judgement. Unless, that is, the defendant convinces the court to take notice of the documents.


Relief Under § 437c(h) Does Not Exist Just to Delay Foreclosures

Granadino v. Wells Fargo Bank, N.A., No. B256511 (D2d2 Apr. 29, 2015) 

In a foreclosure case, plaintiff tried to delay the inevitable by opposing summary judgement under Code of Civil Procedure § 437c(h), claiming that he needed more time to get evidence. Plaintiff’s § 437c(h) declaration complained of discovery shenanigans, but failed to detail what additional information could be discovered that was material to his opposition. And indeed, there was no reason why the additional discovery plaintiff wanted—the deposition of one of defendant’s employees—couldn’t have been obtained during the sixteen month window from the filing of the complaint until plaintiff’s opposition was due.


Saturday, May 16, 2015

Redwood City Express...

Cholakian & Assocs. v. Superior Court, No. C076759 (D3 Apr. 29, 2015) 

This is a bad faith denial of insurance and legal malpractice case against the former defendant’s insurer and two law firms, stemming from a big liability verdict in an auto accident case. It was filed in Sacto Superior—the same venue as the underlying trial. The insurers demurred, one firm answered, and the other moved to transfer venue to San Mateo County under Code of Civil Procedure § 396b(a). On the venue motion, the trial court found that venue was generally improper in the Sac, because no defendant resided there. But because some defendants had answered, it found that, under § 396b(d), the convenience of witness was an overriding factor and thus denied the motion. The law firm took a writ.

Tuesday, May 12, 2015

Writ Petition Does Not Survive the Petitioner

Monsivaiz v. Civil Serv. Comm’n of the Cnty. of L.A., No. B254859 (D2d8, as further modified May 12, 2015)

While his petition for a writ ordering the LA Civil Service Commission to reinstate his job as an agricultural inspector was pending, petitioner died. His wife tried to sub in has his successor in interest. The trial court denied relief, finding that since its only power in mandamus was to order the commission to reinstate, it could not award the wife any relief cognizable on a writ, and thus that it lacked jurisdiction.  The court here affirms.  The wife might have a claim for back pay. But that wasn’t properly addressed on a writ to the Civil Service Commission, whose authority was limited to ordering the petitioner reinstated. Which is of course impossible, because he is dead.


An Arrest as Free Expression?

Anderson v. Geist, No. E058139 (D4d2 Apr. 22, 2015)

This is a § 1983 case over the service of an arrest warrant.  The defendant filed an anti-SLAPP motion, claiming that a cop’s execution of an arrest warrant is protected activity under Code of Civil Procedure § 425.16(e)(4) as an act in furtherance of a criminal prosecution. It’s not. The police are not engaged in any kind of expressive activity in connection with an issue of public concern when they execute warrants. They are just doing their jobs as public employees.


Monday, May 4, 2015

You Do Not Prevail by Moving to Florida

Disputesuite.com v. Scoreinc.com, No. B248694 (D2d2 Apr. 14, 2015)

Defendant in this case successfully got the case dismissed on forum non conveniens grounds based on a contractual provision calling for Florida venue. The contract also contained an attorney fee provision, and the defendant moved for about $85,000 in fees, which the trial court denied and the court of appeal affirms. An attorney fee provision is supposed to look to the prevailing party at the end of the litigation. Litigation that ends in California because it needs to get filed in Florida isn’t actually over. So while defendant prevailed in its forum-non motion, it hasn’t prevailed in the case and a fee award would thus be premature.


Update: Review Granted August 19, 2015.

Our Bills Are Now Privileged

County of L.A. Bd. of Supervisors v. Superior Court, No. B257230 (D2d3 Apr. 13, 2015)

I’m not sure the court of appeal realizes it, but this opinion massively expands the scope of the attorney client privilege in California.