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.