Monday, February 8, 2016

(Re) Clearing the Decks

So I just moved, we are expecting a second daughter in May, and I have spent the last month pulling all-nighters in expedited preliminary injunction proceedings. Which is all a way to say that I’ve fallen really behind on posts here. 

So in the interest of getting up to current without ignoring a months worth of cases in their entirety, here are a few quickies: 

Cruz v. Sun World Int
l, No. F069719 (D5 Dec. 22, 2015)

This sprawling opinion affirms a denial of class cert because a big chunk of a wage and hour class consisted of contract workers who were not directly employed by Defendant. Plaintiff failed to show that these contract workers could be readily identified in records obtainable from Defendant or elsewhere, so the trial court correctly held that the non-employee part of the class was not ascertainable. As far as the actually employed part of the class goes, Plaintiff failed to show with evidence that Defendants had the kind of uniform policy whose illegality could be addressed on a classwide basis a la Brinker. Affirmed.

Garibotti v. Hinkle, No. G048680 (D4d3 Dec. 29, 2015)

The late Joey Bishop’s girlfriend sued a contractor his estate hired to renovate his Lido Island house to get it ready to sell. The contractor defaulted, and the girlfriend won a default judgment. Two months later, the contractor moved to vacate the judgment under Code of Civil Procedure § 663a. Almost three months after that, the trial court granted the § 663a motion, vacating the judgment and entering a new, substantially decreased, one. Problem is, § 663(b) says that if the court doesn’t rule on the motion within 60 days, it’s denied by operation of law. As with § 660’s similar deadline for ruling on new trial motions, the §663a(b) deadline is considered jurisdictional—after it runs the court has no power to act. Nor can the court—as it tried to do here—enter an order giving itself more time. So the § 663a order gets reversed and the original default judgment reinstated. Reversed.

M’Guinness v. Johnson, No. H040614 (D6 Dec. 30, 2015)

This case is similar to the Coldren case decided back in September, in that it involves a partnership dissolution where one partner objects to the other’s being represented by lawyers who used to represent the partnership. It differs, however, in that it reverses the denial of the DQ motion. The key differences are: 1. That, at the time the lawyers appeared for the partner in the case, they were still the partnership’s counsel; and 2. Since the partner had sued the partnership itself, his lawyers had a current client on both sides of the v. Can’t do that.

The court also holds that, as a threshold issue the appeal was timely even though the notice of appeal was filed more than sixty days after the clerk mailed copies of its DQ order to the parties. While Rule of Court 8.104(a)(1)(A) applies a sixty-day clock after service of a “a file-stamped copy of the judgment, showing the date [it] was served,” what the court did here—mailing the stamped order a separate proof of service—didn’t satisfy the rule. These rules get read strictly, and as the court reads them, they require a single self-contained document that includes both the order with evidence of the date of service. So the 180-day default rule in Rule 8.104(a)(1)(C) applied and the appeal was thus timely. Reversed.

King v. Comppartners, Inc., No. E063527 (D4d2 Jan 5, 2016)

The court here affirms the grant of a demurrer on the ground that the complaint was too uncertain to show a claim of relief. The uncertainly was apparently in the service of avoiding the preemption of Plaintiff
’s claim. But because there was a possibility that a more certain claim might nonetheless avoid preemption, the trial court should have afforded leave to amend. Reversed.

SCC Acquisitions v. Superior Court, No. G050546 (D4d3 Jan 6, 2016)

The trial court granted a judgment creditor’s motion to compel a debtor to produce documents regarding related entities. First off, the order isn’t appealable. Although Code of Civil Procedure § 904.1(a)(2) permits appeal of an “order made after an appealable judgment,” the courts have read a gloss into that language in that it applies to orders that are substantially similar to adjudications. If orders a preliminary to a later judgment or other judgment-like order, they still aren’t appealable. That includes orders for judgment debtor discovery.

In any event, the court treats the appeal as a writ. Doing so, it finds that a trial court has the authority to compel a judgment debtor to give up documents about third parties, even though judgment debtor discovery against third parties themselves is limited to conducting judgment debtor exams about transference of the debtor
’s assets. The statute that permits document discovery from a judgment debtor—§ 708.030—contains no limit regarding documents that are in the possession of the debtor but that relate to other parties. Nor were the debtor’s objections based on the constitutional right to privacy well-founded. The documents sought concerned corporations and, following a few earlier decisions to address the issue, the court holds that the constitutional privacy right applies only to natural people. Affirmed.

Castillo v. DHL Express, No. B258432 (D2d3 Jan. 14, 2016)

Under Code of Civil Procedure § 1775.7(b) the five-year-to-trial rule under § 583.310 gets tolled when, any time after four and a half years into the case, the case “remains submitted to mediation pursuant to this title.” But a mediation “pursuant to this title” isn’t just any old mediation before a retired judge. It is a court-ordered mandatory mediation program, specifically directed to cases that are subject to judicial arbitration, judicial council’s rules apply only to cases with less than $50,000 at issue. Cal. R. Ct. 8.891(a)(1). Since the mediation in the case was not of that type, Plaintiff was not entitled to tolling. And since he had not established the impracticability of bringing his case to trial within the five-year window under § 583.310, the case was properly dismissed. Affirmed.

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