Wednesday, November 30, 2016

Client Conflicts Confound Counsel on Class Claims

Walker vs. _________, No. D069713 (D4d1 Oct. 28, 2016)

Counsel represents plaintiffs in two wage-and-hour class actions against the same Employer. The class in the first case is certified. A non-exempt Employee who is a member of the class in Case #1 subsequently got promoted to an exempt position as a low-level manager. She’s now a potential Employer witness in this second—yet-to-be-certified—class case. Indeed, she fired some of the employees in Class #2. So Employer moves to DQ Counsel in Case #2 on the grounds that he might have to cross examine his own client. The trial court agreed.

Monday, November 28, 2016

Unexpected Comeuppance for Jerky Trial Behavior

Bigler-Engler v. Breg, Inc. No D063556 (D4d1 as modified on rehearing** Jan. 6, 2017)

This is a really loooonnnng opinion arising from an appeal of a products liability trial. Defendants sold, marketed, and prescribed a cold therapy device, But as the court explains
unlike normal cold therapy remedies like an icepack or “a bag of frozen peas”—this device managed to give plaintiff some kind of super awful infection due to constant application of cold. Defendants were, it appears, kind of a motley crew as far as the medical device industry goes and they got tagged with big-time damages, including $5 million in non-economic generals, plus punitives.

Tuesday, November 22, 2016

Progress Be Damned....

Khosh v. Staples Constr. Co., No. B268937 (D2d6 Oct. 26, 2016)

Another of D2’s “new font” opinions. I am on record that the Century Schoolbook is an improvement. But I still find the line spacing kind of annoying. It’s not single-spaced with a full break between paragraphs like a Ninth Circuit slip opinion, a Westlaw printout, or a US Supreme Court brief. But it’s also not 1 1/2 like a readable appellate brief. It’s like 1.2, which I find a little distracting for some reason. The paragraph indents are also weirdly large. What’s the point of a 1 1/2” indent?

You Ain't an AG

Millview Cnty. Water Dist. v. State Water Res. Control Bd., No. A145428 (D1d1 Oct. 26, 2016)

A local water district and some citizens who leased it a riparian water rights claim won a lawsuit against the State Water Resources Control Board. Plaintiffs sought to recover their attorneys’ fees under Code of Civil Procedure § 1021.5, the private attorney general doctrine. But an award under § 1021.5 is only warranted when, among other factors, the plaintiff’s burden of litigating is out of proportion to their stake in the matter. Given that the water rights in issue were worth millions, that can’t be the case here. 


Monday, November 21, 2016

Tuesday, November 15, 2016

Control, Default, and Alter Ego.

Wolf Metals v. Rand Pac. Sales Inc., No. B264002 (D2d4 Oct. 25, 2016)

Plaintiff is trying to enforce a default judgment. After a lack of success, it moves to add two new judgment creditors, one on the grounds that he was the alter ego of the debtor and the other because it was the debtor’s successor corporation. The trial court granted the request as to both, but the Court of Appeal reverses as to the alleged alter ego.

Monday, November 14, 2016

These Bills Are Too Damn High...

Moore v. Mercer, No. C073064 (D3 Oct. 21, 2016)

Yet another case addressing the Howell rule for measuring past medical costs as and element damages in a PI case. Under that rule the initial rates billed to a patient by a healthcare provider aren’t dispositive because those rates are super-inflated, and pale in comparison to what ultimately gets paid, especially if paid by insurance. Plaintiff here wasn’t insured, and the hospital sold her bill to a collections agency. Defendant argued that what the hospital got from the agency is the true value of the services. 

This is pretty much the same facts as the Uspenskaya case, decided almost exactly one year ago. And it has the same result: the collections bill is admissible, but not dispositive. Same rule that applies to the hospital’s initial bill. So the jury’s damages award—which was between the two figures—is affirmed.

There’s a second issue, though. Defendant tried to get the (third party) doctor’s contract with the collections agency in discovery. The court denied a motion to compel on the grounds that the agreement was irrelevant and issued discovery sanctions against Defendant. That was error. The terms of an agreement under which claims are sold “bear[s] some probative value” as to the true reasonable value of the services. But given that the trial court said it would have excluded the evidence at trial—which would not necessarily been erroneous—the discovery error was harmless. The sanctions, however, are reversed. 

Notable quote: The “broad scope of permissible discovery is equally applicable to discovery of information from a nonparty as it is to parties in the pending suit.” (quoting Johnson v. Superior Court, 80 Cal. App. 4th 1050 (2000). That
s correct as a matter of the language of the Discovery Act, but read broadly, its in some tension with with the oft-cited Calcor decision, which suggests you should exhaust efforts to get discovery from a party before you burden a third party with document demands.

Reversed in part.

Friday, November 11, 2016

The Death Knell Still Rings Naught!

Nguyen v. Applied Med. Res. Corp., No. G052207 (D4d3 Oct. 14, 2016)

Denials of class cert motions and grants of motions to compel arbitration of claims subject to class action waivers are usually appealable under the “death knell” doctrine. The gist is that what’s left of the case is usually not economically viable to try or arbitrate, so refusing the permit the plaintiff on proceed on a class basis is the “death knell” for the litigation more generally, and thus provides a justification for an interlocutory appeal. 

Wednesday, November 9, 2016


Cal. Pub. Records Research, Inc. v. County of Yolo, No. C078158 (D3 Oct. 14, 2016)

 This case is a complaint about records copying fees, akin to the County of Stanislaus case brought by the same outfit earlier this year. Here, they are challenging Yolo County’s fee schedule demanding $10 for the copying of the first page of a document and $2 for each subsequent page. Government Code § 27366 permits counties to set these fees at rates necessary for the county to recover the direct and indirect costs associates with the copying. 

Unlike in the Stanslaus case, Yolo justifies its copy rates with a fee study that values the staff time of employees in its Recorder’s Office at $129.88 per hour, and then it slices and dices the amount of time spent on responding to requests down to the minute. If you are a clerical worker considering putting in an application and moving to Woodland because of that great pay, don’t go there. The Yolo Recorder employees don’t actually make that much—their pay is about $43 per productive hour—$71k per year on average. A decent government wage, but not worth the move. Yolo’s study, however, bakes in another $85/hour in “indirect costs” in the form of overhead for stuff like the cost of computers, management costs, and office overhead. The issue here is whether that can be lumped in as an “indirect” cost.

After plaintiff filed suit challenging the legality of the fees, Yolo reduced its fees to $7.50/$2. It then moved for summary judgment, arguing that its fees didn’t violate § 27366 and in any event, given the reductions, the petition was moot. The trial court granted the motion. Plaintiff then filed a fee motion under the private attorney general doctrine, arguing that its lawsuit was the catalyst for Yolo’s fee reduction. The trial court denied the motion and plaintiff appealed.

On the merits, the Court of Appeal decides to read “direct and indirect” costs super broadly to include as “indirect” costs “overhead and operating costs not specifically associated with the production of copies.” It supports this reading by reference to dictionaries, federal regulations, and other statutes to determine that “indirect costs” unambiguously includes the kinds of garbage that Yolo is passing off on its citizens by charging $7.50 to make a photocopy of a one-page public document. In that way, it parts ways with D5’s County of Stanislaus decision, which held that the undefined term was ambiguous and thus needed to be interpreted narrowly in light of the State Constitution’s dictate (in Art. I,
§ 3) that statutes that restrict access to public information must be interpreted narrowly.

Plaintiff also sought fees under the private attorney general doctrine, arguing that, even if it didn’t win, it was the “catalyst” for County lowering its first page fee by $2.65. That theory requires a plaintiff to achieve, to some degree, its “primary objective.” The court here interprets Plaintiffs primary objective as stopping County from including indirect costs, not just any old fee reduction. If that was its objective, it failed and thus did not satisfy the test.


Tuesday, November 8, 2016

D2d5 Gets Some Font Technology

State of Cal. v. Superior Court, No. B276233 (D2d5 Oct. 13, 2016)
I like the Century Schoolbook font. It’s relatively spacious and easy to read in a brief. The SCOTUS rules and the Seventh Circuit’s typeface guide suggest it by name, and its an option under FRAP 32(a)(5)(A) and Cal. Rule of Court 8.204(b)(2) and (3). I write all my appellate briefs in it, so long as space is measured in a word count and it’s permitted under the applicable rules. It’s also arguably permitted in California trial courts under Rule of Court 2.105, but given Rule of Court 3.113(d)’ monstrous insistence on using page (not word) limits for law-and-motion memoranda, it’s just too much to sacrifice about 12 percent of the Rule’s already tight limit for the sake of having a nice font. (I tried for a few months back in 2011, but ultimately gave up the first time I had to oppose a summary judgment.)

In any event, given the Court of Appeal’s longstanding practice to publish opinions in stodgy Times New Roman, the choice of font on this D2d5 is out of the ordinary. But definitely not bad. Maybe it will be a thing.*

FWIW, this website and the book it is pitching have some great advice on typography for briefs.

Nothing on the merits, thanks. 

*From some subsequent opinions, seems that all of D2 has made the move.

Monday, November 7, 2016

Assemblyman-Lawyer Is No Scheduling Trump Card

Verio Healthcare v. Superior Court, No. G053068 (D4d3 Oct. 12, 2016).

When a party’s attorney is also a member of the California Legislature, §§ 595 and 1054.1 of the Code of Civil Procedure provide, respectively, for continuances of trials or other matters so long as the Legislature is in session. But fifty years ago, the California Supreme Court held that it would violate the separation of powers to treat these statutes as entitling a litigant’s legislator-attorney a mandatory right to a stay a judicial proceeding. See Thurmond v. Superior Court, 66 Cal. 2d 836 (1967). 

Thursday, November 3, 2016

A Malpractice Hall of Mirrors

Gotek Energy Corp. v. SoCal IP Law Grp., No. B266684 (D2d6 Oct. 12, 2016)

Client hires “Law Firm #2” to bring a malpractice case against Law Firm #1—its prior patent counsel—for blowing a deadline for some patent applications. But Firm #2’s own complaint was filed after the one-year statute in Code of Civil Procedure § 340.6 had run. But that limit is tolled during the time an attorney-client relationship exists between the client/plaintiff and the attorney/defendant. So the issue in this case is when the relationship between Client and Firm #1 ended. Firm #1 claims the relationship ended when—a year and a week before this case was filed—it sent an email to Client informing Client that it needed to withdraw. The next day, Client replied by email to Firm #1, sting that it was terminating the relationship and demanding that Firm #1 immediately transfer the client file to new counsel. Client claims the date extended until the date its files were actually received by new counsel—364 days before the complaint in this case was filed.

The trial court sided with Firm #1, finding that the relationship ended when client said so. The fact that some ministerial work was done to transfer the files after Firm #1 was told it was terminated did not extend a confidential attorney client relationship until that work was complete. The trial court also awarded Firm #1 its fees under a fee provision in Client’s retainer agreement.

The Court of Appeal affirms. Tolling under § 340.6 stops when a client ceases to have any reasonable expectation that legal work will be performed. Given the unequivocal termination, the mere fact of the post-termination transfer of the client’s file did not provide a reasonable basis to believe that there was any kind of ongoing attorney-client relationship. The Court of Appeal further finds Client’s arguments against the fee award to be makeweight.

So the world inevitably await the malpractice case against the attorneys who blew the SOL on a malpractice case against some attorneys who blew the SOL on a patent filing. These guys really need to hire some counsel with a decent calendaring system.


Tuesday, November 1, 2016

Potentially Overbroad Notice Does Not Render Class Not Ascertainable

Nicodemus v. St. Francis Memorial Hosp., No. A141500 (D1d4 Oct. 6, 2016)

Case is a class action dealing with access to medical records under Evidence Code § 1158, which requires a hospital to promptly give a patient’s medical records to her attorney on presentation of a written authorization form “prior to the filing of any action.” The patient needs to pay reasonable costs, which are defined in the statute. The whole point is to make a patient’s medical records available outside of discovery so her attorney can evaluate whether she has a claim.