Monday, March 28, 2016

SJ Evidence Rulings Get De Novo Review

Pipitone v. Williams, No. H041468 (D6 Feb. 23, 2016)

The facts of this wrongful death case are complicated, but they essentially entail a husband’s killing his wife in a domestic dispute. Plaintiff is the Wife’s mother. One defendant is the husband’s father, who is also a doctor, who happened to treat the wife when she suffered an earlier injury that was later discovered to be the result of a prior incident of domestic abuse. Although the Doctor/Father/Defendant claimed not to know that at the time. The other defendant is another doctor who treated the Wife/Decedent for the same earlier injury. The trial court granted SJ on duty and causation.

Thursday, March 24, 2016

Lots of Waivers in Divorce Court

Obrecht v. Obrecht, No. H040827 (D6 Feb. 24, 2016)

Husband in a divorce case objects to personal jurisdiction. His problem is that the record seems to establish that during his first appearance in the case he argued (pro se) the merits of a requested support order. He didn’t move to quash for lack of personal jurisdiction until several months later. But an argument on the merits was a general appearance—sufficient to waive any personal jurisdiction objection.

Husband contests what actually happened at the hearing, but none of the hearings in the case were reported due to the court’s policy of not providing an official reporter in most family law matters. (I.e., a policy like the kind of policy under review in Jameson v. Desta. The Court here drops a footnote to express that it is “deeply troubled” by that policy, but no party raised the issue on appeal.) In the absence of a record of oral proceedings, the trial court’s minute order suggesting the merits, not personal jurisdiction, were argued, was dispositive.

Husband also argues that it is unfair to hold him subject to the orders entered prior to the hearing in which he effectively waived any challenge to personal jurisdiction due to retroactivity concerns. But the court isn’t buying it. The cases he's analogizing to deal with service of process. While it might be unfairly retroactive to hold a party to account for actions that occurred prior to being validly served, the same rationale does not apply to actions that occurred before the time in which the party could be deemed to have waived personal jurisdiction. While service has a temporal element—the case doesn't start for a defendant until he is served—PJ doesn’t work that way. Essentially, personal jurisdiction is a yes/no issue that applies throughout the whole case; either there’s jurisdiction over the defendant or there isn’t.

Husband also waived any challenge to whether he had been afforded timely notice of a hearing. The record is pretty clear that he received less than the sixteen days’ notice of a motion required under Code of Civil Procedure § 1005(b). But to challenge a lack of statutory notice, a party generally needs to raise the issue at the earliest opportunity and demonstrate some prejudice. Here, Husband didn’t challenge the short notice. Indeed, at the first hearing he attended--several months after the motion was decided--he didn’t mention it at all.


Wednesday, March 23, 2016

The Everfull California Sandbag

People ex rel GEICO v. Cruz, No. D067061 (D4d1 Feb. 17, 2016)

An Insurance Company brings brings a qui tam against alleging fraudulent insurance billing practices in auto accident claims in violation of the Insurance Fraud Prevention Act. Relatively early in the case, a Chiropractor defendant served a raft of requests for admission, including requests that the Carrier admit it didn
t suffer any damages. As is common in state court practice, the RFAs were accompanied by Form Interrogatory 17.1, which requires a responding party to state the facts and identify any evidence upon which any RFA response other than an unqualified admission is based. The Insurer’s first set of responses to the form rog simply claimed that discovery was ongoing and that it reserved a right to supplement. 

The Chiro moved to compel. In the interregnum between filing the motion and a decision, the Insurer supplemented its responses with some—albeit relatively general—information, reiterating that discovery was ongoing. The trial court granted the motion and awarded sanctions based on the inadequacy of the original responses. At the hearing, the Chiropractor also took issue with the Insurance Company’s supplemental responses on damages. The Insurer
’s, however, explained that the supplemental contained all relevant information that it could be located to that point, subject to being augmented by a damages expert. 

The Chiropractor subsequently moved for summary judgment based on the Insurer’s failure to identify or calculate its damages. During the lengthy window between the motion and the due date on the opposition, see Cal. Code Civ. Proc. § 437c(a), the Carrier again supplemented its responses, adding further detail, including some additional facts about alleged up-charging that formed the basis of its damages. 

The Chiropractor objected and filed a motion to have the Insurer bound to its first set of supplemental responses under § 2030.310(b). The trial court granted the motion, holding that the Insurer was bound to the prior responses and further that, in opposing the motion, it could not use any undisclosed information it knew of when it filed the supplemental responses or, for that matter, any other discovery derived from such information. Unsurprisingly perhaps, the Insurer’s opposition was full of information that was not presented in its original supplemental responses. The court granted the Chiropractor’s evidentiary objections, struck the evidence, and granted summary judgment. The Insurance Company appeals.

The Court of Appeal holds that it was error to bind the Insurer to its original responses. Under the plain text of
§ 2030.310(c)(1)–(3), a moving party seeking to bind a respondent to rog responses bears the burden of showing: 1. that it was substantially prejudiced by the failure to answer; 2. that the responding party failed to show substantial justification for the original answer; and 3. that the prejudice isn’t curable through a continuance for additional discovery or the use of the original responses for impeachment purposes.The court here holds that the first and third elements were not established. 

On the first element, the Chiropractor claimed that, in reliance on the Insurer
s representations that the responses were complete, he ceased the meet and confer process on the supplemental responses or moving to compel on them. But the court here does not find that prejudicial enough. Even had the Chiropractor gone that route, a successful discovery motion would have just resulted in further supplemental responses along the lines of what the Insurer ultimately served anyway.

On the third, the Chiropractor argued that although trial was still a ways off, failing to bind Insurer would permit it to weasel out of the rule that a summary judgment movant can rely on the non-moving party
s factual deficient interrogatory responses it meeting its initial burden. But the court here doesn’t agree. Without further elaboration, it just states that “rewarding” a non-moving party for sandbagging on interrogatory responses until after a summary judgment motion is filed “has no bearing on whether [the moving party] suffered incurable prejudice.” 

And because the motion to bind was erroneously granted, it was further error to reject the Insurer’s other evidence based on that ruling. 

The court goes on to find that the record, including the evidence rejected by the trial court, showed triable issues thus that summary judgment should have been denied.


I have to say, I don’t find this analysis very satisfying. As I pointed out back in 2014, the fact that California’s summary judgment rules put an affirmative burden on the moving party and require a lengthy window between motion and opposition present a timing conundrum. The case law says the movant can rely on factually devoid interrogatory responses to meet an initial burden. But permitting the non-moving party to amend or supplement those responses after a motion is filed potentially creates an unfair, moving-target type situation. At minimum, fairness seems to require a court to measure a moving party’s initial burden based on discovery responses that are effective as of the date the motion is filed. Although it appears that in the absence of the three factors in § 2030.310(c), the non-moving party can’t be bound to its original responses in meeting its own burden to show a disputed issue of fact, that should come into play only after the burden has shifted. 

Now, when it gets to the merits, the court here seems to be focused on whether the Insurer met its burden as the non-moving party. That is, it seems to assume that the Chiropractor’s initial burden was met without getting into the issue. So the ruling may well be right on the merits. But by dismissing out of hand the potential prejudice that arises from the amendment of interrogatory responses once a summary judgment motion is filed, the court fails to grapple with an important procedural issue, and indeed, potentially makes it even more unclear.

Tuesday, March 22, 2016

Inexcusable, but Mandatory

Younessi v. Woolf, No. G051034 (D4d3 Feb. 16, 2106)

After Plaintiffs failed to respond to a demurrer filed by Defendants in a legal malpractice case, the court granted the motion, albeit affording leave to amend. On the last day of the amendment period, Plaintiffs filed a substitution of counsel. But no amended complaint. Following the procedure in Code of Civil Procedure § 581(f)(2) and Rule of Court 3.1320(h), Defendants filed an ex parte application to enter a dismissal, which the court granted in a signed order. The same day the order was entered, Plaintiffs belatedly filed an amended complaint, which everyone treated as ineffective due to the dismissal. A month-and-a-half later, Plaintiffs filed a motion for relief from default under § 473(b), which the trial court granted under § 473(b)’s discretionary prong. 

Monday, March 21, 2016

What Can You Say When the Stay Gets Stayed?

Gastelum v. ReMax Int'l, No. B263213 (D2d5 Feb. 11, 2016)

An employment dispute gets compelled to arbitration, but the employer fails to front the costs, as required under Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000). So the arbitrator’s outfit refuses to proceed. Given that, the trial court lifts the stay pending arb. Defendant appeals.

But the order isn’t appealable. It is not the functional equivalent of the denial of a motion to compel arbitration, which is appealable by statute. Contrary to earlier cases, this wasn’t an order that affirmatively stayed an arbitration., but the converse: an order that found a continued stay of ligation to be inappropriate. That kind of order doesn’t fall within the scope of any category of statutorily appealable orders whether under the Arbitration Act or Code of Civil Procedure § 904.1, which lists the various authorized appeals. So this appeal gets dismissed.

Dismissed for lack of jurisdiction.

Tuesday, March 15, 2016

Running from the Text

Leider v. Lewis, No. B244414 (D2d8 Feb 10, 2016)

This is a long-running dispute about the treatment of the elephants at the LA Zoo. Plaintiff brought his case under the taxpayer standing statute, Code of Civil Procedure § 526a, asking the court to enjoin violations of various animal cruelty statutes in the Penal Code. This is the second appeal in the case; a prior summary judgment for defendant was reversed. The court held a bench trial, rejecting plaintiff’s demand to close the exhibit. But it granted a limited injunction regarding appropriate elephant discipline, exercise time, and requiring rototilling of the soil in the elephant exhibit. Both sides appeal.

The procedural issue comes up in the zoo’s appeal. The zoo argues that Civil Code § 3369's prohibition on issuing injunctions to enforce criminal laws bars plaintiff’s taxpayer standing claim. A split decision finds two problems with that argument. 

Friday, March 11, 2016

Getting to the Merits

Austin v. LAUSD, No. B258406 (D2d7) 

The trial court in this employment dispute granted the employer’s summary judgment motion, which plaintiff failed to timely oppose. Plaintiff filed an untimely pro se motion for reconsideration, explaining, among other things that there was additional evidence and that she had been abandoned by her attorney. The trial court recognized that the relief sought potentially implicated a discretionary relief from default under Code of Civil Procedure § 473(b). But because the motion papers were not sworn under penalty of perjury, the court found § 473(b) to be procedurally inapt. After a number of delays for plaintiff to obtain new counsel, plaintiffs new lawyer filed a correctly formed § 473(b) motion. But by that time, the six-month limit for discretionary relief had run, so the trial court found that any relief from the default was foreclosed.

The Court of Appeal agrees that it is appropriate to treat the untimely reconsideration motion as a motion under § 473(b). The moving papers gave the defendant sufficient notice of the relief sought, so it was not unfair for the court to so construe the motion. But the trial court erred in finding that a penalty of perjury requirement applied. 

Indeed, in 1981, § 473(b) was specifically amended to explain that “[n]o affidavit or declaration of merits shall be required by the moving party.” It was thus plain error for the court to deny the motion on that ground. Because the motion and the evidence submitted with it made at least a colorable claim of excusable neglect under § 473(b), the trial court would have had the discretion to grant the motion, had it reached the merits. Thus, the rejection on the motion based on a non-existent procedural hurdle was prejudicial error, meriting reversal.

The court further notes that plaintiff substantially complied with § 473(b)’s requirement that an application “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein[.]” Although she didn’t serve an opposition to the summary judgment motion, her “reconsideration” papers contained essentially the information and arguments that would be included in an opposition. Given the plaintiff’s good faith, the policy in favor of deciding cases on the merits (and, although the court doesn’t come out and say it, the sympathetic posture of a litigant abandoned by her attorney) that was sufficient to meet the requirement. So the court reverses and remands for the trial court to consider the § 473(b) motion on the merits in the first instance.

Reversed and remanded.

Tuesday, March 8, 2016

Private AG Found Unecessary in Case Brought by Public Entity

San Diego Municipal Employees Assoc. v. City of San Diego, No. D066886 (D4d1 Feb. 9, 2016)

 A public employee retirement fund sued a city, challenging its assertion that the fund members were required to contribute more to their retirement. A bunch of other unions intervene on the side of the fund. When the case settles, the intervening unions seek fees under Code of Civil Procedure § 1021.5 based on a private attorney general theory. But § 1021.5 applies only when private enforcement is truly necessary. Here, the fund—a public entity—was already in the case. When there’s already a public entity prosecuting a case on behalf of a part of the general public, to show the requisite necessity, a private litigant must “make a significant showing that its participation was material to the result.” The trial court found that the Unions didn’t make that showing here, and the Court of Appeal affirms. 

Although the Unions’ lawyers did some non-redundant discovery work that was helpful, “the mere fact that witnesses or evidence available to the public agency were examined or introduced by counsel for a private party does not suffice to establish that their efforts were necessary for purposes of section 1021.5.” Since the Unions’ counsel didn’t do anything particularly unique that contributed to the success of the litigation, the trial court did not err in finding that the necessity standard had not been met.


Monday, March 7, 2016

Designate or Die

Perry v. Bakewell Hawthorne, LLC, No B264027 (D2d2 Feb. 3, 2016).

In opposition to one Defendant's motion for summary judgment in a premises liability case, Plaintiff submitted some expert declarations on the standard of care. Problem is that another Defendant had previously served a timely demand for exchange of expert information under Code of Civil Procedure § 2034.210 on all parties, but Plaintiff didn’t timely designate any experts. Which led the trial court to exclude them under § 2034.300, resulting in the SJ motion being granted.

The Court of Appeal rejects two arguments that the exclusion of the experts was error. First, the fact that the demand was served by a different defendant was of no moment. As the current version of § 2034.210 makes clear, once any party serves a demand, all parties have an obligation to exchange expert information, regardless of who made the demand. 

Second, the court rejects the argument that § 2034.300 does not merit the exclusion of expert testimony submitted in connection with summary judgment, as opposed to trial. Although, most of the time the designation date will fall after summary judgment has been briefed, that does not mean that § 2034.300’s rule of exclusion does not apply in those instances where the designation date comes first. Section § 2034.300 is generally addressed in terms of exclusion of expert evidence, not just at trial.


Thursday, March 3, 2016

Arbitration for the Dead, But Court for the Living

Monschke v. Timber Ridge Assisted Living, LLC, No. A144289 (D1d1 Jan 29, 2016)

As they told us in first year torts, a wrongful death claim is not just a continuation of the decedent’s claim for wrongly causing his or her death. It is a separate claim to vindicate the separate rights of the survivors themselves. So a decedent’s agreement to arbitrate is generally not binding on his or her survivors. Which basically resolves the case here. A deceased nursing home patient’s heirs, suing for wrongful death, could not be bound to an arbitration clause in the nursing home agreement that was signed on behalf of the decedent.


Tuesday, March 1, 2016

Some Situations Are Made for Interpleader . . .

County of Santa Clara v. Escobar, No. H038121 (D6 Jan 26, 2016)

Under Government Code 23004.1, a county that incurs medical expenses treating injured person P has a direct cause of action against D, who caused the injury. It can also put a lien on any judgement P recovers against D. If P pays off the county’s debt, D is excused.

Here, P won a personal injury verdict against D. And then a County put a lien on the proceeds for a hefty $1.25 million in medical expenses shouldered by a public hospital. To avoid the trouble of dealing with the County, while at the same time keeping P for making collections efforts, D cut a check to the whole amount, but made it jointly payable to P and the County. When P wouldn’t pay off the County out of the award, it separately sued D in a new action. But D argued that any direct action was extinguished when it tendered its joint check to P and the County, leaving up to them to work out who got the money at the end of the day. The trial court agreed and sustained a demurrer, ruling that D’s obligation was extinguished by tendering the check, regardless of whether the County actually got paid. According to the trial court, County’s remedy was instead to enforce its lien against P.

The Court of Appeal disagrees. After waiving off a mootness argument that doesn’t make much sense, the court, relying on subrogation and indemnification principles, as well a deep dive into the relevant provisions of the Government Code, holds that the law does not actually cut off the county’s claim until it actually gets paid. So far as D’s legitimate concerns about multiple liability, those could have been addressed tendering the funds to the court and filing an interpleader against P and the County. Which is what will likely happen on remand.