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.