Monday, October 31, 2016

Follow the Verdict Form

Markow v. Rosner, No. B260715 (D2d1 Oct. 4, 2016).

A jury awarded damages to Plaintiffs—a patient and his wife suing for loss of consortium—in a med-mal case. The jury purported to allocate the award 60/40 between Doctor and Hospital. Hospital’s liability was based on an ostensible agency theory, not any direct fault on its own part. Hospital moved for judgment notwithstanding the verdict, on the ground that the record was clear that Doctor was an independent contractor, not an agent, and that Plaintiff knew that fact from the get-go. The trial court denied that motion, but the Court of Appeal reverses.

Sunday, October 30, 2016

New Judgment Adding Fees Does Not Restart the Clock

Hjelm v. Prometheus Real Estate Grp., No. A142723 (D1d2 Oct. 5, 2016)

Plaintiffs’ apartment became infested with bedbugs. They sued their Landlord and won before a jury. Plaintiffs also obtained an attorney’s fee award because their lease included an fee provision, albeit one that purportedly only permitted the landlord to recover. But such a provision is made bilateral by operation of Civil Code § 1717. Ultimately the damages award was about $72k with the fee award almost five times that. 

Friday, October 28, 2016

So Much for Your Privacy . . .

Doe v. Superior Court, No. B271508 (D2d1 Sept. 29, 2016)

Last year, California enacted a “revenge porn” law, which provides for a private right of action against someone who without consent distributes naked or sexual images that were obtained under conditions where the subject of the images had a reasonable expectation that they would remain private. See Civ. Code § 1708.85. The statue permits the plaintiff to file anonymously, and requires the court to “keep the plaintiff’s name and excluded or redacted characteristics confidential.” Id. § 1708.85(f). Plaintiff availed himself of that process, filing along with his complaint a judicial council form that included his real name and info for the court’s use. That form too is supposed to be kept confidential by the court.

But it wasn’t. Somehow, LA Superior Court posted it, unredacted, to its online docket. The trial court—deciding that the cat was out of the bag—then proceeded to rule that from that point on, Plaintiff needed to litigate under his true name. Plaintiff took a writ, which the Court of Appeal grants.

Code of Civil Procedure § 367 requires the prosecution of an action in the name of the real party in interest, unless a statute provides otherwise. Section 1708.85(f) does, in fact, provide otherwise. The court’s posting of the form was not the fault of plaintiff, and thus it would be inequitable to find that the court’s own mistake somehow waived Plaintiff’s right to proceed anonymously. Indeed, the Court’s order—requiring public filing—would just compound the harm to the Plaintiff.

Writ granted.

Thursday, October 27, 2016

Sometimes It Pays to Interplead.

Wertheim, Inc. v. Omidvar, No. B262485 (D2d1 Sept. 29, 2016)

This is a complicated and long running fight between two entities that appear to be jockeying to swindle a widow of her dead husband’s ASCAP and BMI songwriting royalties. After Party 1 won an arbitration, which Party 2 appealed but declined to post a bond to stay collection. Party 1 tried to levy against ASCAP and BMI, which responded by interpleading the royalty streams, obtaining a court-approved $238k, paid of the res, for the costs incurred in interpleading. See Code Civ. Proc. § 386 (permitting a discretionary award of fees for costs incurred in interpleading and obtaining discharge). But then the arb judgment got reversed, resulting in a ruling that Party 2 was entitled to the interplead funds. Party 2 then moved to recoup from Party 1 the fees paid to ASCAP and BMI under Code of Civil Procedure § 386.6, which permits gives the court discretion to allocate the interpleader’s fees to the claimants “as may appear proper.” The trial court denied the motion and Party 2 appeals.

The Court of Appeal affirms. It appears that there’s no transcript of the hearing on the fee motion, so the court’s terse minute order denying allocation is presumed to be correct and to include any implicit findings necessary to support it. Moreover, the circumstances supported denial. The only reason ASCAP and BMI interplead was because Party #2 took no effort to stay collection pending appeal. Had it posted a supersedeas bond, ASCAP and BMI would never have gotten involved and Party #2 could have recovered its bond cost from Party #1 as a recoverable cost. So, although a range of allocations between Parties #1 and #2 would fall within the reasonable exercise of the court’s discretion, that discretion wasn’t abused in denying Party #2 to recover part of the fees from Party #1.

Affirmed.

Wednesday, October 26, 2016

New Trial, Notwithstanding a Lack of Substantial Evidence

Licudine v. Cedars-Sinai Med. Ctr., No. B268130 (D2d2 Sept. 29, 2016)

The court here affirms the grant of a motion for new trial on damages for a law student injured due to a surgical mistake, clarifying the applicable standard for awarding damages based on future earning capacity. So far as procedure goes, the court clarifies some issues with the difference between new trial and jnov motions as well as some evidentiary issues likely to recur on trial after remand. 


Tuesday, October 25, 2016

Thursday, October 20, 2016

In Honor of Francis Walsh

Esparza v. Kaweah DeEsparza v. Kaweah Delta Dist. Hosp., No. F071761 (D5 Sept. 21, 2016)

When he wasn’t randomly digressing on the Warsaw Convention, my torts professor managed to say in pretty much every class—to the blank stares of 120 baffled 1Ls—“DON’T FORGET YOUR CODE CLAIM!”  He must have sued the government a lot or something.


Wednesday, October 19, 2016

Wife Fails to Bounce Divorce Judge with § 170.6 Gambit

Rothstein v. Superior Court, No. B275603 (D2d5 Sept. 16, 2016).

During Husband and Wife’s divorce case, Wife filed a peremptory challenge against the family law judge under Code of Civil Procedure § 170.6. After the case was reassigned, Family Law Judge #2 entered a dissolution judgment, but retained jurisdiction to deal with property division, support, etc. While that was pending, wife’s company sued Husband to collect on a debt. Husband got the matter transferred to FLJ2 as a related matter. WifeCo. then filed its own § 170.6 to strike FLJ2. FLJ2 accepted the strike and transferred the whole case to Judge #3. After husband moved for reconsideration, which was denied, Husband took a writ.

Tuesday, October 18, 2016

Nice Try...

Perez v. U-Haul of Cal., No. B262029 (D2d7 Sept. 16, 2016)

The California Supreme Court held that PAGA claims aren’t arbitrable in the oft-cited Iskanian case. Defendant here raised a clever argument that, while a whole PAGA claim might not be, whether plaintiff is an “aggrieved employee”—a threshold issue that goes to whether PAGA even applies—can be the subject of an agreement to arbitrate. No dice. According to the court, nothing in Iskanian can be read to permit the hiving off of threshold issues and sending them to arbitration.

Affirmed.

Monday, October 17, 2016

Good Luck to All That

Randall v. Mousseau, No. B263945 (D2d7, as amended, Sept. 16, 2016)

In California, the appellant bears the burden of showing error. That means, among other things, that she needs to present the record on appeal. There are two different records—a written record, and a record of oral proceedings. And then for each type of record there are various options to compile. For the record of oral proceedings, the standard is a court reporter’s stenographic transcript. (In the lingo of California state court, a “reporter’s transcript.”) See Cal. R. Ct. 8.130. That’s been the case since modern stenography came into place during the mid-20th Century. But there are other options.

Wednesday, October 12, 2016

And Now for Some Qui Tam . . .

People ex rel Allstate Ins. Co. v. Dahan, No. B259799 (D2d3 Sept. 15, 2016)

This is kind of interesting. A relator wins a false claims act case in which the government declined to intervene. The losing defendant tries to argue that its liability on the judgment is improperly allocated between the relator and the government. But, as the court holds here, the defendant/debtor doesn’t have standing to complain about that. Regardless of who it owes to, its still owes. So it isn’t aggrieved by the allocation.

Appeal dismissed.

Tuesday, October 11, 2016

No Arb for Trailer Park

Penilla v. Westmont Corp., No. B262097 (D2d4 Sept. 9, 2016)

The court here finds an arbitration provision in a mobile home park rental agreement to be unconscionable. Procedurally unconscionable in that it did not disclose the expensive fees that a claimant would be expected to shoulder and because it was not provided in Spanish or explained to renters who couldn’t read English. And substantively unconscionable because it imposed steep fees to deter the residents from asserting claims and unreasonably shortened the statute of limitations. So the trial court correctly denied the park owner’s motion to compel. 

Affirmed.

Why Arbitrations Tend to Go on Too Long ...

Royal Alliance Assocs., Inc. v. Liebhaber, No. B264619 (D2d4 Aug. 30, 2016)

It’s pretty hard to get an arbitration award vacated. The arbitrators error, even a really really bad one, is not enough. But one way to do it is to show that the arbitrator refused even to hear evidence. Which is what happened here. 

During an informal hearing, Party A gave an informal explanation of her conduct in an effort to exonerate herself. The opposing party had doubts about the veracity of those statements, and asked to question A. The arbitrators—it was a three arbitrator panel—said no, in reliance on the rules of their arbitral forum. They then proceeded to rule in A’s favor, specifically noting in their decision that the found A’s explanation to be credible.

That goes too far, even for arbitration. Code of Civil Procedure § 1286.2 requires vacation of an award when the arbitrators commit misconduct, exceed their powers, or refuse to hear evidence material to the dispute. Regardless of whether the panel complied with their own rules, refusing the hear relevant evidence—such as the cross examination of a witness whose credibility is key to the whole case—crosses a red line. See Code Civ. Proc. § 1286.2(a)(5).

Affirmed.

Monday, October 10, 2016

So Much for Diamler . . .

Bristol-Myers Squibb. Co. v. Superior Court, No. S221038 (Cal. Aug. 29, 2016)

Certain kinds of litigation gravitate towards California, even when neither the plaintiff nor the defendant is resident or headquartered here. (See, e.g., asbestos cases.) The conventional wisdom is that that state of affairs was likely to subside after the US Supreme Court did away with the broad “systematic and continuous” test for general personal jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), which held that general jurisdiction is appropriate only where a company is “at home.” 

Taking Isn't, But Talking Is

Greco v. Greco, No. C078369 (D3 Aug. 23, 2016) 

In his capacity as trustee of his parents’ trust and estate, Son uses the trust’s funds to engage in a bunch of allegedly poorly conceived litigation against his Sister. Sister sues Son, alleging he’s breaching his duty of trustee by wasting the res. Son files an anti-SLAPP motion, which is denied. He appeals.

The Court of Appeal quite sensibly finds that the gist of the suit is the wrongful taking of funds from the trust and estates—as opposed to the litigation being bankrolled with that money—as thus that the case doesn’t arise from any protected activity. Because it is the taking that makes Son’s actions unlawful, that is the relevant conduct to the analysis. The sole exception was a claim for constructive fraud, which allegedly arises from Son’s misrepresentations about the lawsuit. Talking about a lawsuit is protected activity, so Son met the first part of the test on that claim.

As to the merits on the constructive fraud claim, the trial court hadn’t addressed them. It notes that the obvious bar to success—the litigation privilege in Civil Code § 47(b)—doesn’t apply because the statements at issue were not made to a court or any party to the litigation. Thus the case needed to be reversed for a determination of potential success on the merits as the the constructive fraud claim only.

Reversed and reminded, in limited part.

Can't SLAPP on a Settlement Deal

Suarez v. Trigg Labs., Inc., No. B264511 (D2d4 Sept. 7, 2016)

Settlement discussions are included within the anti-SLAPP statute’s protection as “any written or oral statement or writing made in connection with an issue under consideration or review” by a judicial body. See Cal. Code Civ. Proc. § 425.16(e)(2). Thus, cases that arise from allegations of fraud during settlement talks meet the “arising from protected activity” requirement of the anti-SLAPP statute. And since Plaintiff in this case declined to even try to make a showing on the merits, the motion was appropriately granted.

Affirmed.

Saturday, October 8, 2016

She'll Have to Wait Too.

Sese v. Wells Fargo Bank, No. C074663 (D3 Aug 18, 2016)

A recently enacted statute addressing mortgage litigation permits the award of attorneys’ fees to a prevailing borrower. Te Homeowner here won a PI, and claims that she was entitled to an immediate interim fee award. The trial court denied the request and the Homeowner took an interlocutory appeal. But regardless of whether the Homeowner was right about the statute’s authorizing awards of interim fees, nothing in the Code makes the denial of such a request immediately appealable. Although Homeowner argued that the appellate jurisdiction statute—Code of Civil Procedure § 904.1—makes various kinds non-final orders immediately appealable, the order here isn’t one of them. 

Appeal dismissed.


Wednesday, October 5, 2016

She'll Have to Wait.

Young v. REMX, Inc. No. A143786 (D1d5 Aug. 17, 2016) 

The denial of a motion to compel arbitration is immediately appealable. See Code Civ. Proc. § 1294(a). But an order granting a motion to compel isn’t. And—as the court here explains—an order that stays certain non-arbitrable claims while a compelled arbitration is pending isn’t immediately appealable either. Just like with a grant of a motion to compel, the decision to stay can be addressed and challenged at the end of the road, once a final judgment is entered. There’s no good reason to jump the gun.

Appeal dismissed.

Tuesday, October 4, 2016

Munsingwear ...

La Mirada Neighborhood Assoc. of Hollywood v. City of LA, No B258033 (D2d7 Aug. 16, 2016)
Generally, an action that moots a controversy while an appeal is pending results only in the dismissal of the appeal. But when legislative or regulatory changes make a matter moot, sometimes it’s warranted to order the trial court to vacate the underlying judgment, such that the dismissal of the appeal doesn’t result in an automatic affirmance of a judgment whose legal legs had been cut out from under it. But the rule doesn’t apply when, like here, the government body that takes the action to moot the case is also the appellant. In those cases, dismissal of the appeal is all that’s warranted.

Appeal dismissed.

You Can Now Stop Drafting Those Rough Proportionality Instructions

City of Perris v. Stamper, No. S213468 (Cal. Aug. 15, 2016)

The Court of Appeal decision in this case came down more than three years ago. I wrote about it in one of my first posts. Without rehashing too much, it deals with the right to jury trial in eminent domain cases. In particular, certain valuation issues are logically dependent on whether the government can permissibly impose a dedication of land as a development condition under the U.S. Supreme Court’s Nolan/Dolan framework. The Court of Appeal held that the fact issues bound up in that determination had be be tried by a jury under article I, section 19 of the California Constitution, which affords a jury trial right as to the amount of just compensation in eminent domain proceedings.

Justice Liu, writing for a unanimous court on the issue,* thinks differently. The state constitution requires a jury trial only of fact issues that relate to the compensation. It does not require a jury for fact issues not related to compensation, or to issues of law or mixed questions of fact and law where the legal question predominates, even if they are antecedent to the valuation question. 

While the Nolan/Dolan inquiry certainly has a factual underpinning, the inquiry generally entails the application of a constitutional law framework to known facts. Because the court is scrutinizing the sufficiency government agency’s decision and its evidentiary basis, there should be little need to weigh conflicting evidence and engage in the kind of fact-finding that falls within the customary ken of a jury. Instead, the court is called upon to “decide . . . . fundamental questions about the limits of lawmaking power”—legal questions that should rest with the court. That is the case even though, literally speaking, the ultimate valuation question does, to some degree, turn on the answer to the Nolan/Dolan question. That they are “analytically prior” or “sub-issues” to the assessment of the amount of just compensation, does not bring them within the jury trial right.

Court of Appeal reversed.

*Justice Cuellar dissented on a second issue on which the court granted review—a specific and technical issue of eminent domain law called the “project effect rule.” But he concurred in the court’s resolution of the jury trial right issue.

Monday, October 3, 2016

Don't Need a Physiscist to Know What a Fender Bender Looks Like ...

Christ v. Schwartz, No. D068579 (D4d1 Aug. 12, 2016)

Appeal from a defense verdict in a low-speed car accident case. Plaintiffs are the victim and her husband, who is suing for loss of consortium. Defendant stipulated to negligence and causation of the accident, so the upshot of the defense verdict is that the jury didn’t believe that the victim’s claimed injuries were legit or that they resulted from the accident. Plaintiffs’ contend on appeal that the trial court erred in admitting photos of the damaged cars and evidence regarding victim’s husband’s extramarital affairs.

On the photos, Plaintiffs claim that, in the absence of expert evidence about the significance of the damage, it was error to admit the photographs as evidence of whether the accident was the cause of Plaintiffs’ alleged injuries. But California law does not require an expert to lay foundation for accident scene photos, so long as the judge in his or her discretion believes that the jury can use the photos to draw conclusions within their ordinary common experience. One outlier decision of another state somewhat suggested that rule, but even in that case a later decision walked it back.


Nor did the court abuse its discretion in declining the exclude the photos under Evidence Code § 352. The photos were relevant to show that the collision was a side impact, the general force of the collision, and to impeach Husband’s testimony that the car was more messed up than the photos showed it to be. Given that relevance, it was not an abuse of discretion to let them in.

So far as the affair goes, it had happened almost a decade and a half before the trial. The trial court tentatively denied a motion in limine to keep it out as minimally relevant to loss of consortium, but reserved a decision for trial. When Defendant’s counsel asked a question on the issue, Victim did not object, but she gave an unresponsive answer addressed to other issues. But then she volunteered a bunch of detail on the issue in response to general questions about the nature of her injuries and the state of her relationship with Husband. And then her lawyer addressed the affair issue in depth on redirect.

The court finds that Plaintiffs forfeited the issue by failing to timely object. A tentatively denied motion in limine that is expressly subject to revisitation does not preserve an objection in the absence of an on the record objection at trial under Evidence Code § 353. And in any event, a party seeking loss of consortium puts the state of his relationship into issue. Although the affair occurred a long time ago, Victim affirmatively brought it up during her medical treatment or her alleged injuries, which suggests that it was at least potentially relevant to her.

And regardless, the record was clear that the jury didn’t believe the victim’s testimony about the source and nature of her injuries. She was thoroughly impeached on these issues at trial, including by clandestine video showing her engaged in activities that were completely inconsistent with the the injuries she claimed to have suffered. Under the circumstances, even if it was error to admit either the photos or the testimony about the infidelity, the error was harmless and insufficiently prejudicial to merit reversal.

Affirmed.