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.


Wednesday, August 12, 2015

Consitutionally Required Mulligans, for Some

Marshall v. Cnty. of San Diego, No. D063675 (Jul. 22, 2015)

Section 437c(f)(2) of the Code of Civil Procedure says that “a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” Seems pretty clear. If you move and lose, you don’t get to move again, without new evidence or law.

Wednesday, August 5, 2015

I Thought they Were All Gang Prosecutors?

Willard v. Kelley, No. G050340 (D4d3 Jul. 21, 2015)

A candidate for OC Auditor-Controller challenged his opponent’s ballot designation as misstating his occupation. The challenge failed. The defending candidate sought his attorneys’ fees under Code of Civil Procedure § 1021.5, which permits fee awards in cases that substantially further the public interest. While prior cases have held that there can be a significant public benefit when candidates for office are permitted to disseminate their views on issues pertinent to an election, a ticky-tack fight over whether one candidate properly described his occupation doesn’t rise to that level. So the trial court properly declined to award fees under § 1021.5.

Tuesday, August 4, 2015

California Law's Empire

Moncrief v. Clark, No. H040098 (D5 Jul. 21, 2015)

During negotiations over the sale of some farm equipment, seller’s attorney in Arizona made statements regarding his client’s title to the equipment. Those statements turned out to be untrue, and the deal failed. Purchaser then sued its California-based attorney for legal malpractice. Purchaser’s Lawyer turned and cross claimed against Arizona Attorney for equitable indemnity. Arizona Attorney filed a motion to quash service due to lack of personal jurisdiction, which the trial court granted.

The court of appeal applies the standard three-step analysis for specific personal jurisdiction. (1) Did the defendant purposefully avail himself of the California forum; (2) Does the controversy relate to the defendant’s contacts; and (3) Would notions of fair play and substantial justice be offended by hailing the defendant into court in California? Arizona Attorney argued only a lack of purposeful availment. But AA had called Purchaser’s Lawyer on the phone—while PL was in California—in order to close the deal. AA then followed up with an email reiterating that his clients had clear title. That’s not much, but it’s enough for personal availment in California.


Monday, August 3, 2015

Not Really Pro Se

Law Offices of Marc Grossman v. Victor Elem. Sch. Dist., No. E059579 (D4d2 Jul. 21, 2015)

Generally speaking, an attorney representing himself pro se is not entitled a statutory or contractual award of attorney fees for his time spent successfully litigating a case. Here, an attorney named himself as plaintiff in a Public Records Act case that brought to obtain information for use in parallel tort case the attorney’s client had brought against a school. 

It doesn’t really matter who the plaintiff is in a PRA case and attorneys sometimes name themselves as plaintiffs for administrative convenience. After he won the PRA case on a writ reversing the trial court, on remand the trial court denied him a fee award under Gov’t Code § 6259(d) under the attorney pro se rule. The court of appeal reverses. Acting as if the client wasn’t actually representing the interests of his client in the PRA case would elevate form over substance.  Moreover, the writ already said that the attorney was entitled to an award of both costs and fees and the trial court should have followed the order.