Friday, August 18, 2017

FAA Has No Say

L.A. Unified Sch. Dist. v. Safety Nat’l. Cas. Corp., No. B275597 D2d8 (July 12, 2017)

The LAUSD brought a mega litigation against 27 different insurers over coverage issues stemming from the sex abuse scandal at Miramonte Elementary that broke about five years ago. One of the carriers had an arb clause in their policy. But others didn’t. The trial court denied a motion to compel under Code of Civil Procedure § 1281.2(c), which permits denial of arbitration under circumstances where there a risk of conflicting rulings in pending litigation with third parties.

Thursday, August 17, 2017

A Bunch of Stuff After a Class Action Trial

Espejo v. The Copley Press, No. D065397 (D4d1 Jul. 7, 2017)

This is a post-trial appeal after a bench trial in an employment class action brought by newspaper delivery persons. The big substantive issue is whether the class were employees of the Newspaper or independent contractors. Having found they were employees, the court awarded about $3 million in restitution under the UCL, plus $1.7 million in prejudgment interest and $6 million in attorneys’ fees ($1.25 of which was to be paid out of the award, the remainder by defendants). There are a lot of issues, a good number of them with some procedural bearing. 

Wednesday, August 16, 2017

The Test We Have Is Fine, Thanks...

ZL Techs. v. Does 1–7, No. A143680 (D1d4 Jul. 19, 2017)

Some anonymous but allegedly former employees of Company put up negative reviews about Company on, a website that posts reviews of workplaces. Company sued employees as Does and then subpoenaed Glassdoor for their identifying info. Glassdoor objected on numerous grounds and the trial court denied Company’s motion to compel. Company was unsuccessful in identifying the Does by other means, and thus unable to serve them. The case was dismissed without prejudice under Code of Civil Procedure § 583.420, for failure to timely serve the Defendants.

Monday, August 14, 2017

Vex Ain't a Family Affair

Hupp v. Solera Oak Valley Greens Assoc., No. E065766 (Jun. 23, 2017) 

Son has been previously declared a vexatious litigant. But the operative complaint in this case—about a completely stupid anti-pit bull HOA covenant—isn’t brought by Son. It was filed by Mother, although she’s also pro se. Defendants nonetheless filed an ex parte application seeking dismissal under Code of Civil Procedure § 391.7(c), on the grounds that pre-filing permission was not obtained. The trial court granted the application and dismissed the case.

Generally, being a vexatious litigant is a personal disability that applies only to the litigant’s bringing his own claims as a pro se. That gets extended a little—like in the recent Kinney v. Clark case—where the vexatious litigant is using an attorney as a sockpuppet to litigate on his own behalf. It could also apply if the plaintiff were some kind of alter ego of the vexatious litigant. But none of these apply, as least as to Mother’s claims brought to enforce her own rights. (Although the “puppet” doctrine did apply to a few claims that Mother was bringing to enforce Son’s rights.) So the trial court erred by striking Mother’s claims under § 391.7.


Thursday, August 10, 2017

I Guess It's Not Over

Cnty. of L.A. Bd. of Supervisors v. Superior Court, No. B257320A (D2d3 Jun. 22, 2017)

This is the remand in County of L.A. v. Superior Court, the Supreme Court’s big decision on the scope of the attorney client privilege from the end of 2016. As when this case was before the Court of Appeal the first time around, the panel seems inclined to read the privilege expansively, even after getting reversed for doing that the first time around.

Friday, August 4, 2017

Nuthin' But a Fee Thang

Monster, LLC v. Superior Court, No. B278289 (D2d7 Jun. 21, 2017)

Plaintiff here claims that it was defrauded out of an interest in Dr. Dre’s headphone company, Beats by Dre, right before Dre sold Beats to a certain iconic computer company for $3 billion. But over the course of their relationship, Plaintiff and Beats had entered several agreements that contained both broad release language and provisions that that permitted a prevailing party to recover its fees. So in response to Plaintiff’s tort claims, Beats brought cross-claims alleging that Plaintiff was breaching the releases, thus causing Beats damages in the form of having to incur fees to defend the cases.

Monday, July 31, 2017

Pleas in Abatement Are This Disfavored

The Rossdale Grp. v. Walton, No. H043476 (D6 Apr. 15, 2017)

This is a weird and kind of narrow opinion about standing that is mostly shaped by how the issue was raised the superior court. The case is a malicious prosecution action against a Lawyer who was (allegedly) in the business of extorting settlements from meritless claims. 

Friday, July 28, 2017


Ryan v. Rosenfeld, No. S232582 (Cal. Jun. 15, 2017)

Code of Civil Procedure § 663 permits a post-judgment motion to vacate a judgment, under certain specific circumstances. Generally, but without elaboration, a bunch of cases say that an order denying a § 663 motion is an order made after an appealable judgment, and thus appealable under § 904.1(a)(2). Problem is that a 1978 Supreme Court caseClemmer v. Hartford Insurance Company, 22 Cal.3d 865 (1976)—somewhat inexplicably says it isn’t, in tension with a bunch of earlier Supreme Court cases.

The Court of Appeal here felt bound by Clemmer, so it held that the appeal—timely based on the date of entry of the § 663 order but tardy if counted from the date the underlying judgment was entered—needed to be dismissed. The Supreme Court stepped in to clarify the situation. And so the Court unanimously clears the brush without much ado: Clemmer was wrong. An order denying a § 663 motion is separately appealable under § 904.1(a)(2). And Clemmer is disapproved.


Thursday, July 27, 2017

Some Hearsay Stuff on Habeas

In re Bell, No. S151362 (Cal. Jun. 8, 2017)

A convicted capital defendant petitioned the Supreme Court for habeas relief due to alleged jury misconduct in connection with his conviction. The Court ordered the superior court to appoint a referee to conduct an evidentiary hearing to get to the bottom of what happened. After the evidentiary hearing, the referee found that the jury misconduct claim was unproven an thus that petitioner was not entitled to relief. Petitioner appealed that ruling back to the Supreme Court. In the process of affirming, the Court addresses a number of evidentiary issues that are of general applicability in civil cases. 

Wednesday, July 26, 2017

Effects of Debtor’s Corporate Suspension Accrue to Claims Seized by Creditor

Bovet v. Chang, No. D070797 (D1d4 Jun. 7, 2017)

Plaintiff is a judgment creditor to a suspended corporation. In enforcement of judgment proceedings, Plaintiff was assigned certain of debtor’s assets, including certain funds held for potential escheat by the State Controller. Plaintiff filed claims for the property with the Controller, which the Controller denied based on the debtor’s being a suspended corporation. Plaintiff sued, but the court dismissed, on the grounds that the assignee of a suspended corporation can’t enforce that corporation’s rights in court because the corporation has no capacity to sue or defend on its own.

It’s not controversial that a suspended corporation can’t voluntarily assign rights to another, who then can sue to enforce the rights. That make it too easy avoid the consequences of the suspension, which include a disability to prosecute or defend actions in court. Plaintiff, however, claims that it stands in different stead because the assignment here was an involuntary judicial assignment obtained to collect on a debt. 

That has some intuitive sense to it, but the Court of Appeal doesn’t agree, resting on the formalism that the assignee takes subject to whatever defenses the assignor was subject to. According to the court, “It makes no difference if the assignment is voluntary or through a judicial assignment made in the enforcement of judgment process for a corporation refusing to pay a judgment or obligation. The result is the same and should not be permitted.”


Tuesday, July 25, 2017

No Property Tax Required for Taxpayer Standing; Else Unresolved

Weatherford v. City of San Rafael, No. S219567 (Cal. Jun. 6, 2017)

Code of Civil Procedure § 526a gives taxpayers standing to bring claims to enjoin wasteful or unlawful expenditures by government entities. The question presented to the Supreme Court here is: What kind of taxes need to be paid to have taxpayer standing? 

Monday, July 24, 2017

Equity Does Not Sanction an Award on a Dismissed Claim

Guan v. Hu, No. B276546 (D2d1 June 2, 2017)

This is kind of weird one. The case is a dispute over a house that was, to some degree, co-owned by an unmarried couple who later broke up. Plaintiff sued Defendant for breach of contract and various fraud theories allegedly meriting rescission. But the trial court granted several demurrers on the contract claims, ultimately without leave to amend. 

The case then got tried on the rescission theory. The trial court found that rescission wasn’t proven. But puzzlingly, it went on to find that the dismissed breach of contract claim was. Purportedly acting under the authority of Civil Code § 1692, which permits an adjustment of the equities in a rescission case, the trial court awarded contract damages to plaintiff. It later denied Plaintiff’s request to amend the complaint to conform with proof, in order to re-allege the contract claim.

Friday, July 14, 2017

Deined § 631.8 Motion Proves Probable Cause

Hart v. Darwish, No. B270513 (D2d2 Jun. 1, 2017)

A suit for malicious prosecution generally cannot lie if the court
in the underling case denied the defendant’s summary judgment motion. Essentially, the denial substantiates that plaintiff had a reasonable basis to bring suit, even if it does not ultimately prevail. The court here holds that the same concept applies if the court in the prior case denies a defendant’s motion for judgment under Code of Civil Procedure 631.8.

Thursday, July 13, 2017

Can Kicking on a Costs Ruling

Heimlich v. Shivji, No. H062641 (D6 May 31, 2017)

About a year into an Attorney-Client fee dispute, Client made an offer of judgment under Code of Civil Procedure § 998 to settle the case for thirty grand. Attorney didn’t respond. Months after that, client sought to compel arbitration under the parties’ fee agreement. For reasons unclear, the trial court compelled the case to arbitration after summary judgment was denied, which ended in a $0 award where each party bore its own costs and fees. 

Client tried to raise the § 998 offer with the arbitrator as a basis of fee-shifting. But the arbitrator said that since her award had been rendered, she no longer had jurisdiction to address the question. As part of an effort to confirm the (lack of) award, Client asked the court to shift costs based on his beating the pre-arbitration § 998 offer. The trial court denied relief, finding that the issue should have been raised with the arbitrator before the substantive award was entered. Client appeals.

Some relevant legal points at play here. 1. § 998 was amended in 1997 to apply in arbitrations. 2. § 1293.2 permits a court upon confirmation of an arbitral award to award the same kinds of costs that are recoverable by a prevailing party in a civil litigation. 3. § 1284.2 says that, absent a contractual agreement otherwise, a party bears his own costs plus his pro rata share of the expenses of arbitration, such as the arbitrator’s fee.

Courts have generally read the interplay between 2 and 3 to mean that a court can shift court-related costs of compelling, confirming, or vacating an arbitration, but not costs incurred within the arbitral process itself. The 1997 amendments to § 998, however, change that somewhat, permitting the recovery of costs within the arbitration, even if not contractually agreed to. That’s not too controversial. But still, who decides? Generally litigants have been expected to enforce intra-arbitration cost shifting within the context of the arbitration, not afterwards.

The trouble with putting the question to the arbitrator is that with the exception of a limited authority to correct obvious or immaterial errors, the arbitrator doesn’t have much in the way of post-award jurisdiction. Cases and statues re pretty clear on that. But when it comes to a § 998 issue, that makes absolutely no sense, because an arbitrator can’t decide if a § 998 offer was bested until a decision has been rendered. Indeed, § 998 itself says that a rejected offer is inadmissible in evidence during a case on the merits.

So it’s a quintessential Catch 22. A § 998 “determination necessarily must postdate an arbitration award,” since there’s no way to adjudicate the § 998 before the award is entered, particularly when the rejection is inadmissible. But the arbitrator basically lacks jurisdiction to do that. 

Lacking many great options, and hemmed in by conflicting case law, the Court of Appeal just gets to rulin’ in the interest of common sense. It says: 1. an arbitrator can and should consider a post-award § 998 motion, and has jurisdiction to do so. 2. If the arbitrator won’t do that, he has failed to consider a submitted issue—a grounds for vacation under § 1283.4 and related case law. So the arbitrator here made that mistake.

The court thus orders the matter remanded for reconsideration by the arbitrator. But if that doesn’t work, there is some tangential dicta in a Supreme Court case that says something from which one could read—were one to squint a little and turn your head like a puppy—that a superior court can also entertain such an award if the arbitrator refuses to do so. So if the arbitrator continues to refuse, the superior court should address the issue on remand.


Monday, July 10, 2017

No Writs for the Vexatious

Ogunsalu v. Superior Court, No. D071323 (D4d1 Jun. 7, 2017)
A school teacher who has also been previously declared to be a vexatious litigant is a party to an ALJ case over a credentialing suspension. When the ALJ denied a continuance, Teacher petitioned for a writ of mandate from the superior court. The trial court imposed the prefiling requirements for vexatious litigants and refused to permit Teacher to file his writ. Teacher took his writ to the Court of Appeal, which also denied based on a lack of merit to get through pre-filing review. Teacher then sought review of that, and the Supreme Court granted and transferred the case back for reconsideration in light of its recent decision in the John case, which held that the pre-filing review requirements d
don’t apply to appeals were a vexatious pro per was appealing as a losing defendant.

The court notes the case is generally moot, because the ALJ proceeding is already over. But it reaches the merits anyway. The court finds John to be distinguishable. Although Teacher is a defendant in the ALJ proceeding, he is essentially a plaintiff in the writ case he filed in superior court. According to the Court, a writ like Teacher’s isn’t an appeal akin to John because an administrative ALJ hearing is not “litigation” as defined under Code of Civil Procedure § 391. Which means the writ petition is not an appeal but a new litigation initiated by Teacher, which makes Teacher effectively a plaintiff to whom the vexatious litigant pre-filing rules apply.


Thursday, July 6, 2017

Should Have Appealed the First Time

Chango Coffee, Inc. v. Applied Underwriters, Inc., No. BC267358 (D2d3, May 26, 2017) 
Defendant lost a motion to compel arbitration, but didn’t appeal. Six months later it filed a renewed motion under Code of Civil Procedure § 1008(b), claiming that a Plaintiff witness gave deposition testimony that further supported arbitration. The trial court denied that too, and this time Defendant appeals. 

One problem. The denial of a motion to compel arbitration is subject to an interlocutory appeal. But the denial of a renewed motion under § 1008(b) is not. Since it’s a non-appealable order, an appeal wasn’t properly taken. That’s the case even though § 1008(g) permits an appeal to be taken from a reconsideration or renewed motion when the underlying motion is appealed. By failing to appeal the original denial, Defendant lost any ability to use § 1008(g).

Appeal dismissed.

Wednesday, July 5, 2017

Tantamount to Proceeding Without Consent

McClintock v. Djulus, No. D049757 (D4d1 Apr. 14, 2017)

A divorce case gets assigned to a commissioner. Wife, who is represented, signs the consent form but Husband, who is pro per, did not. Indeed, the record doesn’t reflect that at the original hearing Husband was ever given the form or even informed that the “judge” to whom the case was assigned was actually a commissioner. The commissioner made several rulings at that hearing. At a later hearing, after being informed that the presiding officer was a commissioner, Husband objected to proceeding before her. But the commissioner ruled that Husband’s participation in the prior hearing was a “tantamount stipulation” to her presiding over the case.

That was a mistake. A stipulation to a commissioner doesn’t need to be formal or in writing. And indeed, it can sometimes be implied from the fact of actively litigating before a commissioner after the party becomes aware that the presiding officer is not, in fact, a full-blown superior court judge. But that rule can’t apply if a party did not actually know that the “judge” is just a commissioner. And the record here shows that Husband did not. 

So it was error to find that husband had engaged in a tantamount stipulation by participating in the prior hearing. And indeed, that error required vacation of all of the commissioner’s orders since she had no authority to act.


Tuesday, July 4, 2017

A Reversal with Remand Is a Final Order

Dhillon v. John Muir Health, No. S 224473 (Cal. May 25, 2017)

Is an order granting a writ of administrative mandamus and remanding the matter to the agency for further proceedings an appealable final order under Code of Civil Procedure § 904.1? Reversing the Court of Appeal, the Supreme Court here says it is in an unanimous opinion by Justice Kruger.

It’s uncontroversial that a final order denying the writ wholesale is appealable. As is an order that grants a writ and orders affirmative relief without a remand. But there’s a pretty substantial split when a remand is ordered, although the cases generally fail to give any reasoning why. The Court explains that the order is sufficiently final because it was the definitive ending of all proceedings before the trial court. There was nothing left for it to do, which made the order effectively final and appealable. And the fact that the petitioner previously sought a writ of mandate in the court of appeal challenging the remand didn’t change that result.


Thursday, June 29, 2017

In Which the Author Outs Himself as a (Soft) Textualist ...

Leider v. Lewis, No. S232622 (Cal. May 25, 2017)

The trial court in this case issued an injunction against certain practices involving the elephant enclosure at the LA Zoo. The Court of Appeal affirmed, in a split decision, over the Zoo’s challenge that Civil Code § 3369 prohibited the issuance of an injunction against acts of animal cruelty that were prohibited only by criminal laws in the Penal Code. The Court of Appeal held that the argument was barred by the resolution of a prior appeal under the law of the case doctrine, and that, in any event, it was wrong on the merits. But the Supreme Court granted review and now unanimously disagrees.

Wednesday, June 28, 2017

Sketchy Default; Sketchy Vacation ...

Grapo v. McMills, No. A147522 (May 23, 2017)

So this case involves a crazy default judgment scenario where an individual was served with a pro se complaint with his name in the caption, but he wasn’t mentioned in the counts. He didn’t respond. His default was taken, but before the default judgment was entered, he died. Plaintiff tried to get a $10 million judgment, which was rejected. Then he amended the complaint and sought $12 million, but the complaint also mentioned $60k in lost property. The trial court ultimately signed off on a $60k judgment.

On Call Claims Merit Class Cert

Bartoni v. Am. Med. Response W., No. A143784 (D1d May 24, 2017) 

For a while, it seemed like there was an opinion on class cert in a wage and hour case—usually reversing a denial—every week. But it’s been a dry spell of late. 

Thursday, June 22, 2017

You're the Puppet!!!

Kinney v. Clark, No. B265267 (D2d1, as modified Jun. 14, 2017)

This appeal is just the latest in a lengthy saga where a Disbarred Lawyer has been trying to duck a ten-year old order that he pay an adversary’s attorneys’ fees. He’s also been declared a vexatious litigant pretty much everywhere in Southern California and has pre-filing orders against him. This case is no different and the court dismisses the appeal as frivolous because the arguments D.L. raises have already been raised and lost in many other cases over and over again.

As a sanction, the court enters an expanded pre-filing order against D.L. that applies even to cases where he is represented by counsel! Code of Civil Procedure § 391.7 facially authorizes pre-filing orders only against pro se filings, on the theory that the ethical obligations of lawyers should be enough to prevent truly vexatious filings. But prior cases permit expanded orders when a vexatious litigant recruits attorneys to act as “puppets” in the filing of new frivolous litigation.

Dicta in the Supreme Court’s recent decision in John v. Superior Court, 63 Cal. 4th 91 (2016), doesn’t bode otherwise. There, the court held that a pre-filing order doesn’t apply to an appeal in a case where the vexatious litigant appeals a judgment in a case where he is a defendant. In passing, the Court referenced that “the “vexatious litigant statutory scheme [citation] applies exclusively to self-represented litigants.” But that statement alone doesn’t mean that the scheme can’t apply when attorneys act a mere puppets to vexatious litigants without exercising any independent professional judgment.

In any event, the court here finds that the puppet standard is met because the attorneys representing D.L. are just regurgitating old arguments that D.L. has made and lost on in a bunch of old resolved cases. Moreover, since prior orders have been ineffective, the court further notes that it can impose the limits under its inherent powers, as a means necessary to protect from abuse of the judicial process. But the expanded order applies only to additional filings in connection with the long-dead dispute that underlies this case.

In addition, the court issues $10,000 in monetary sanctions against the disbarred lawyer and orders the opinion sent to the state bar, lest he seek reinstatement at some point in the future.

Appeal dismissed and sanctions awarded.

Wednesday, June 21, 2017

Stretching to Compel Third Party Arb

Garcia v. Pexco, LLC, No. G052872 (D4d3 May 16, 2017)

Temp works for Temp Service. He brings a wage-and-hour class action against Temp Service and a Company where he was assigned to work. The employment contract between Temp and Temp Service has an arbitration clause with a class action waiver. Company isn’t a party, but joins Temp Service’s motion to compel, which the trial court grants. 

Tuesday, June 20, 2017

Lien Filing Triggers Limited Civil SLAPP

O'Neil-Rosales v. Citibank (South Dakota) N.A., No. JAD17-03 (L.A. Super. App. Div. May 10, 2017)

Appellate department decision affirming an appeal of a granted anti-SLAPP motion in a limited civil case brought under the federal Fair Debt Collection Practices Act and California’s Rosenthal Fair Debt Collection Practices Act. Because the underlying act was recording a lien, the case arose from protected activity. And because plaintiff’s allegations didn’t describe debt collection practices as defined in the statutes, she had not probability of prevailing. So the motion was appropriately granted.


Monday, June 19, 2017

Coordination Good.

In re Ford Motor Warranty Cases, No. B277725 (D2d8 May 8, 2017)

Where federal court has multi-district litigation proceedings, California has “coordination” under Code of Civil Procedure § 404.1. When there’s a potential for coordination, the Judicial Council assigns the matter to a “coordination motion judge,” whose job it is to decide if coordination is merited. And if it is, the matter is then assigned to a “coordination trial judge” whose job is to manage the litigation, to decide common legal, factual, and procedural questions, and then to farm cases out for trial. 

Tuesday, June 13, 2017

The Fox Johns-Macaluso Paradox, Resolved(?)

Yolandas, Inc. v. Kahl Goveia Commercial Real Estate, No. B271408 (D2d6 May 3, 2017)

Former Tenant is trying to collect on a $2 million judgment against a Former Landlord. Landlord entities claim insolvency. But Landlord had created a new entity and transferred all of the judgment-debtor entities’ assets and several of their employees to it. Which smacks of fraudulent transfer.

When Tenant took a PMQ debtor exam over the Landlord entities, the witness identified assets that had been transferred to related parties, but refused to testify about his knowledge of the current location of those assets, claiming it was beyond the scope of the exam. The trial court granted a motion to compel, which the debtor now tries to appeal.

There’s an issue, however, about whether the order is even appealable. As I noted back in 2013, there’s a split of authority on this issue between two opinions of the same court decided within six days of one another. One case—Macaluso v. Superior Court, 219 Cal. App. 4th 1042 (2013)—says that an order related to a judgment debtor exam is, literally, an order after final judgment, which is immediately appealable under Code of Civil Procedure § 904.1(a)(2). The other—Fox Johns Lazar Pekin & Wexler, APC v. Superior Court, 219 Cal. App. 4th 1210 (2013)—says that it isn’t, reasoning that a discovery order isn’t final enough. Without much analysis, the court here agrees with the Fox Johns approach, reasoning that treating every judgment debtor discovery order as appealable “will invite unnecessary delay and facilitate the concealment of assets.” So the court exercises its discretion to treat the appeal as a writ.

On the merits, the court finds the discovery to be permissible. Code of Civil Procedure § 708.120 permits discovery of third parties who have an interest in the debtors property or a debt to the judgment debtor that exceeds $250. Landlord here argues that limits discovery. But that ignores § 708.130(a), which permits judgment debtor discovery to an extent that a witness could be called at trial in an action to enforce the debt. That’s a pretty broad reach. And beyond that, the trial court’s power is backstopped by § 187, which gives the court the authority to enter orders necessary to carry out its jurisdiction, unless the order would be precluded by some statute. Given the policy favoring the enforcement of judgments, to the extent § 708.130 wasn’t enough, § 187 could fill the gap.


Friday, June 9, 2017

Your Secrets Are Safer if Your Therapist is a PhD, Not an MD

Cross v. Superior Court, No. B277600 (D2d5 May 1, 2017)

A psychiatrist is under investigation for over-prescribing Adderall. After reviewing her prescription records, a Board of Medical examiners subpoenaed the doctor for the medical records of three patients to whom it appear that over-prescriptions occurred. The psychiatrist—claiming that she couldn’t get consent from the patients—refused to comply with the subpoenas on grounds of the physician-patient and psychotherapist-patient privileges as well as the right to medical privacy. The trial court overruled the objections and order the records produced. The doc took a writ.

Thursday, June 8, 2017

No Presumptions of Convenience for Foreign Plaintiffs

Fox Factory, Inc. v. Superior Court, No. H043648 (D6 Apr. 27, 2017)

Plaintiff is a Canadian who was hurt in a mountain biking accident in British Columbia. He filed two lawsuits over his accident. In one, filed in Santa Clara County, he sued a bunch of U.S. manufacturers if the components of his bike, including Fox, a California company that made the forks. The other case was filed in Canada and brought against a Canadian bike shop and a bunch of John Does, who appear to be the companies sued in the California action. 

Tuesday, June 6, 2017

Obamacare Is All up in the Specials

Cuevas v. Contra Costa Cnty., No. A143440 (D1d1 Apr. 27, 2017)

We’ve discussed before how the facial amounts of medical bills aren’t good evidence of an insured plaintiff’s damages because insurers never pay the facial amounts of the bills. Same goes for doctors’ rack rates in computing future bills. Damages have to be computed based on what is reasonably likely to actually be paid. This case holds that, in figuring the impact of insurance on these costs, a jury can consider benefits obtainable under the Affordable Care Act. That’s the case even though the long-term legislative future of that law is not entirely certain, poor CBO score of its erstwhile replacement notwithstanding.


Monday, June 5, 2017

There's No Private Public Defender Doctrine

Save Our Heritage Org. v. City of San Diego, No. D070006 (D4d1 Apr. 27, 2017)

When an advocacy organization successfully challenges government action, it often is entitled a fee award under Code of Civil Procedure § 1021.5, which codifies California’s private attorney general doctrine. But in this case—a permitting dispute over a revitalization project in Balboa Park—the organization lost. The proponent of the permit—a committee created to shepherd the design and review process—had intervened at the trial court level and was ultimately successful in getting the approval on appeal. The question is: Can the proponent get a fee award of its own under § 1021.5?

The answer is yet, but.

Friday, June 2, 2017

State Fund Strikes Again

McDermott Will & Emery LLP v. Superior Court, No. G053623 (Apr. 18, 2017)

The underlying litigation in this writ is a malpractice case arising from messy probate fight over the control of a family office. It involves way too many names and a whole lot of factual detail, but I’ll try to simplify as best as I can, without losing the key flavor as relevant to the procedural issues, which deal with the disqualification of one party’s lawyers for failing to return privileged materials.

Thursday, June 1, 2017

D2d5 Retreads on a Broad Read of "Default or Dismissal"

Urban Wildlands Grp. v. City of L.A., No. B271350 (D2d5 Apr. 13, 2017)

Plaintiff filed for a writ of administrative mandamus but failed to file the administrative record with the trial court. The court denied the writ on the merits, finding that Plaintiff hadn’t met its burden to show error in the record. Plaintiff then sought relief under Code of Civil Procedure § 473(b) based on the fact that his attorney messed up the filing due to neglect. The court denied discretionary relief but granted under the mandatory relief provision in § 473(b).

But mandatory relief under § 473(b) is available only to address a default or dismissal. As we’ve discussed before, there’s an unresolved split of authority about what that means, with some courts reading “default or dismissal” narrowly and others giving it a little more leeway. Interestingly, the court here adopts the narrower reading even though the same division had previously authored two opinions going the other way. See In re Marriage of Hock & Gordon-Hock, 80 Cal. App. 4th 1438, 1442 (2000); Avila v. Chua, 57 Cal. App. 4th 860, 866 (1997). The court purports to disapprove of these cases.

Based on the narrow rule, what happened here wasn’t a default or dismissal. The trial court ruled against Plaintiff on the merits, finding that it wasn’t entitled to a writ because it failed to substantiate error in the underlying administrative proceeding. So the trial court erred in granting mandatory relief.


Wednesday, May 31, 2017

Writ Relief Has Come a Long Way in 80 Years

Shaw v. Superior Court, No. S221530 (Cal. Apr. 10, 2017)

Most of this Supreme Court opinion is about whether there is a statutory right to jury trial for a claim brought under Health & Safety Code § 1278.5(g), which prohibits certain kinds of retaliatory terminations. That’s too substantive for me.

There’s a gating issue, however, that is pure procedure: Is the denial of a jury trial right an appropriate subject for pre-trial writ relief? The answer is pretty clearly yes, and a series of Court of Appeal decisions bears that out. But there’s a very old Supreme Court case—Nessbit v. Superior Court, 214 Cal. 1 (1934)—that says it isn’t. Nessbit, however, relied on an old theory of mandamus as available only when a trial court acted for want of fundamental jurisdiction. Later cases changed that theory, re-characterizing the “jurisdictional” nature of the remedy to reach any act that was contrary to established statutes or standards, even if the trial court did, in fact, have jurisdiction over the matter in general. So the Supreme Court here overrules Nessbit to clarify that an erroneous denial of a jury trial right is an issue that can be addressed by a pre-trial writ of mandate.

Tuesday, May 30, 2017

Nothing to Relate Back to

Sholes v. Lambreth Trucking Co., No. C070770 (D3 Apr. 6, 2017)

Plaintiff is a pro per suing a neighbor over a fire that damaged his property. The Neighbor successfully demurred to a series of complaints, with Plaintiff obtaining leave to amend. As a result, Plaintiff’s complaints alleged a series of ever-evolving legal theories, beginning with a claim based on an insurance dispute but ultimately landing on a trespass theory. But by the time the trespass theory was raised, the statute of limitations had long run. And because the trial court held that it didn’t relate back to the original complaint, the case was dismissed as time-barred.

The Court of Appeal affirms. Problem is that Plaintiff’s timely original complaint was basically devoid of facts.  Owing that defect, the court holds that there was “nothing to which the first amended complaint can be  compared to or to which they can relate back.” The allegations were simply too sparse to put defendant on notice of the nature of the claim that plaintiff later pleaded in subsequent iterations.


Broughton-Cruz Lives to Fight Another Day

McGill v. Citibank, N.A., No. S224086 (Cal. Apr. 6, 2107)

The Supreme Court granted review of this case to address whether claims brought under statutes like the CLRA and UCL, which permit a private plaintiff to seek injunctive relief on behalf of the public, can be subjected to mandatory arbitration wherein that relief is completely waived. The Court of Appeal said yes. The Supreme Court says no.

The main issue in the case is whether a California rule that claims seeking public injunctive relief are not arbitrable is preempted under § 2 of the Federal Arbitration Act, which makes all contracts to arbitrate enforceable except to the extent that state law would generally invalidate the contract. The California Supreme Court had previously upheld such a rule (known as the “Broughton-Cruz rule), but there’s a question as to whether it survives the U.S. Supreme Court’s ruling in AT&T v. Concepcion, which held that class-action waivers were enforceable and any rule otherwise was preempted by § 2. Plaintiff analogizes Broughton-Cruz to Iskanian v. Superior Court, in which the California Supreme Court held that Private Attorney General Act claims, in which private plaintiffs seek relief on behalf of the state, cannot be compelled to arbitration because the state is not a party to the arbitration agreement.

But the Court sidesteps the brewing Concepcion/Iskanian debate—which will sooner or later make it to the U.S. Supreme Court—to decide the case on narrower grounds. The agreement here effectively precluded plaintiff from seeking public injunctive relief in any forum, arbitral or otherwise. But unlike Concepcion—where the class action waiver was a procedure inconsistent with arbitration— the contract here waived a substantive remedy that is un-waivable as a matter of statute. Which means that the waiver is unenforceable, Concepcion notwithstanding. 

Court of Appeal reversed.

Friday, May 26, 2017

Venue Victor Is No Prevailing Party v., No. S226652 (Cal. Apr. 4, 2017)

The Supreme Court granted review of this case, which I wrote about back in 2015. The issue is whether a defendant can get an award of contractual attorneys’ fees under Civil Code § 1717 as a prevailing party, when what it prevailed upon was a motion to dismiss for forum non-conveniens. The Court of Appeal said the trial court didn’t abuse its discretion for saying no. Generally, it is reasonable to find that such an award would be premature because the merits of the case would be litigated elsewhere.

The Supreme Court basically agrees. Under its prior precedent, a defendant that wins a complete victory is entitled to a § 1717 award as a matter of law. See Hsu v. Abbara, 9 Cal. 4th 863 (1995). But winning an FNC motion isn’t a complete victory, just a interim decision about where a case should be brought. While it might be possible that an FNC dismissal could completely kill off a claim, that wasn’t the case here. So the Court of Appeal was correct to hold that there was no abuse of discretion in denying a § 1717 award.

Court of Appeal affirmed.

Didn't See That Coming...

Charney v. Standard General, LP, No. B268928 (D2d5 Mar. 28, 2017)

Plaintiff sues his former employer for defamation and similar torts statements made in a press release in connection with his termination. Unsurprisingly that draws an anti-SLAPP motion. Plaintiff basically concedes the “arising from test” has been met, which, as I previously explained, is not a good idea. And because Plaintiff can’t show that the release was actually defamatory, he can’t show a likelihood of success.


Thursday, May 25, 2017

To Pay Is to Stay

Quiles v. Parent, No. G054353 (D4d3 Mar. 27, 2017)

To stay enforcement of a money judgment pending appeal, the defendant needs to post a bond. Code Civ. Proc. § 917.1(a)(1). But a defendant does not need to post a bond when the only money award is for costs awardable under § 1033.5. See § 917.1(d). 

Defendant here fully satisfied a money damages judgment, which it did not appeal. But it is appealing a post-judgment award of costs and attorneys’ fees, and hasnt satisfied that yet. Plaintiff is trying to collect that award and the trial court is going along with it. Defendant requests a writ of supersedeas clarifying that collection is stayed pending the appeal.

Relying on a terse analysis in the only case on point, the court here finds that Defendant was entitled to stay of the judgment under § 917.1(d) because no bond is required to stay a costs-only judgment. Attorney fees count as costs when they are awardable under a statute or the law. § 1033.5(a)(10)(B), (C). Since paying of the damages left nothing but costs, Defendant was entitled to a stay.

Writ of supersedeas granted.

Wednesday, May 24, 2017

Appealability of Reference Depends on the Kind of Ref

Lindsey v. Conteh, No. G052016 (D4d3 Mar. 23, 2017)

A discovery referee in a contentious stockholder derivative litigation imposed 100k in sanctions against a defendant for failure to abide by one of his orders.

Q: Is that order appealable?

A: It is.

Q: Why?

Who’s the Client?

Fiduciary Trust International v. Klein, No. A144558 (D1d3 Mar. 21, 2017).

In a trust dispute, a fired trustee declines to give certain documents to his successor, on the grounds that they are subject to the attorney-client privilege. Generally in such cases, the “client” is the office of the trust, not the particular trustee, so a former trustee has no privilege against its successors. There’s an exception, however, for when a trustee obtains personal legal advice about his trusteeship from counsel paid out of its personal funds. The question here is how broad should the exception be and who bears the burden of establishing it.

Based on trust law principles, the court holds that the trustee invoking the privilege must prove the exception and that it applies only when the trustee can demonstrate that it “retained the counsel with whom [it] communicated in a personal capacity and took affirmative steps to distinguish the purported personal advice from advice obtained in a fiduciary capacity.” The court says that the trustee doesn’t necessarily need to go so far as to physically segregate documents (although it’s probably a good idea) but it must take actual steps to identify as privileged communications that are sought from the trustee’s personal-capacity counsel.

Reversed in part for analysis based on the standard in the court’s opinion.

Tuesday, May 23, 2017

A Little Meta, But the Code Still Applies

City of L.A. v. Superior Court, No. B269525 (D2d7 Mar. 20, 2017)

Discovery in a public records act case is kind of confusing. After all, the whole purpose of the case is basically discovery. In this writ, the issue is whether, and to what extent, the Civil Discovery Act applies in cases brought under the Public Records Act.

Monday, May 22, 2017

Now a Scalpel, No Longer Just a Hammer.

Shelley v. Harrop, No. C07747 (D3 Mar. 20, 2017) 

This is an appeal of the denial of an anti-SLAPP motion. The motion comes out of a cross complaint alleging three causes of action based, in part, on the cross-defendants maintenance of a frivolous lawsuit, in waste of corporate assets. These causes of action, however, also mix in allegations about other corporate mismanagement like excessive compensation, self-dealing etc.—stuff that’s clearly not addressed under the anti-SLAPP protection. The trial court denied the motion, based on the idea that there were sufficient unprotected assertions to proceed on each claim.

Following the Supreme Court’s recent ruling in Baral v. Schnitt, an anti-SLAPP motion can be used with more precision than that. So long as the protected activity allegations aren’t merely incidental, courts need to look at the portions of claims that do, in fact address protected activity, determine whether there’s a likelihood of prevailing specifically as to the protected activity, and if not, to strike those particular allegations from the complaint, leaving the rest intact. So here, the trial court should have stuck the parts of the causes of action that were addressed to the filing and maintenance of an allegedly meritless litigation, an undisputed form of protected activity.

Reversed in part.

Friday, May 19, 2017

Ancient History, Present Evidence

Phillips v. Honeywell Intl Inc., No. F070761 (D5 Mar. 17. 2017)

A weird thing about asbestos cases is that the same general evidence about the defendant’s actions can get introduced in scores or even hundreds of separate cases. Sometimes even to the point where the practice treatises on asbestos litigation actually address strategies for dealing with specific pieces of evidence. 

Thursday, May 18, 2017

Hard to Be Biased by Something You Don’t Remember

EEC Capital Corp. v. Manatt, Phelps & Phillips LLC, No. B265760 (D2d9 Mar. 15, 2017)

Clients sued Attorneys who represented them in a soured debt deal. The case was compelled to arbitration, where Attorneys won. The arbitrator awarded
Attorneys $7 million in costs and fees. Clients seek to vacate the award.


Tuesday, May 16, 2017

Not a Pickoff Move.

Schoshinski v. City of L.A., No. B269431 (D2d8 Mar. 14, 2017)

There are two class actions against a City for utility overcharging. Case #1 settles, with City agreeing to pay full refunds of the contested fees and other injunctive relief. The class rep in Case #2 didn’t opt out of Case #1 and received the refunds. The city successfully got him out on summary judgment on mootness grounds, but the court permitted amendment to add new reps. The new reps, however, had also received refunds under the Case #1 settlement. The trial court again granted SJ, and the new reps appeal.

Friday, May 12, 2017

Don’t Quack to the Flack

Behunin v. Superior Court, No. B272225 (D2d7 Mar. 14, 2017)

Although it might not be litigated very often in state court, this question comes pretty frequently in high-stakes litigation: When do communications with PR people hired in connection with a litigation come under the cover of the attorney-client privilege?

Tuesday, May 9, 2017

Call it a Lara Notice

People v. Superior Court (Lara), No. E067296 (D4d2 on rehearing, Mar. 13, 2017)

This is a  criminal writ dealing with a change in the law of whether juveniles can be tried as adults, which has apparently caused some disarray in the trial courts. I don’t cover juvenile justice. But on rehearing, there’s an interesting question of writ procedure that was raised on rehearing, because there a bunch of similar writs pending. When does a denied writ become law of the case?

Writ review in the Court of Appeal is basically a two-step process. First, the court has to decide whether to take up the writ. The vast majority of the time it doesn’t do that and the petitioner gets a summary denial without an opinion. It’s well-established California law that a summary denial isn’t a “cause” as that term is used in the state constitution. Which means that it requires no written opinion and (collaterally) has neither preclusive effect nor creates law of the case.

To take up the merits writ, it can do one of three things: Normally it will issue an order to show cause or an alternative writ. These orders start a formal briefing process, which leads to a decision on the merits. Whether a grant or denial, that decision does constitute a “cause”—it requires a written opinion and creates law of the case.

In narrow circumstances, the court can forego the full briefing process and issue what’s called a Palma notice. See Palma v. U.S. Indus. Fasteners, Inc., 36 Cal. 3d 171 (1984). A Palma notice generally informs the parties that the Court of Appeal thinks the petition presents an issue (often a principally legal one) where the court is inclined to grant on a peremptory basis. To satisfy the respondent’s due process rights, the respondent is permitted to file an informal response, and if that doesn’t convince the court the writ issues. Like a writ issued after the more formal OSC/alternative writ process, a peremptory writ issued after a Palma notice is also a “cause.” It requires a written opinion that creates law of the case.  

This case, however, has an unusual fact pattern. The juvenile charging issue was piling up in multiple writs and the failure to quickly resolve it leading to some disarray in the trial courts. So here, the court took the unusual step of issuing a Palma notice that said it was included to take up the writ and deny it on the merits. Which it did. 

And now on a sua sponte motion for rehearing, the Court explains that a writ denied on the merits after a Palma notice is also a cause that creates law of the case. That might seem obvious, but there are some older cases that suggest there’s no cause until an alternative writ issues. These cases, however, are inconsistent with Palma’s concept of a peremptory writ that counts as a cause. There’s also some general language in other cases that suggests peremptory denial on the merits procedure employed by the court is not even an option in California writ practice. But none of these cases are on all fours.

At the end of the day, the distinction between a summary denial and a merits denial after a Palma notice comes down to an issue of jurisdiction. A summary denial is a declination to exercise jurisdiction over the merits of the matter. That’s not what we have here, since the court took jurisdiction and issued an opinion on the merits. So the court’s merits opinion does, in fact, constitute law of the case.

Writ denied.

Monday, May 8, 2017

Not Claim Barred, But Time Barred

Ivanoff v. Bank of America, No. B271035 (Mar. 13, 2017)

Plaintiff is a pro se seeking to avoid a foreclosure. She already lost a breach of contract case against the bank, which was affirmed on appeal. Shortly thereafter, she filed a new case repackaging the same allegations as violations of the federal Truth in Lending Act, aka TILA. The superior court dismissed on claim preclusion grounds.

And the Court of Appeal affirms, albeit for different reasons. The court holds that the TILA claim was not barred by res judicata, because it arose from a different primary right. Nobody really understands what a primary right is, but apparently a claim for breach of contract arises from a different right than a claim for false disclosures under TILA. But regardless, the TILA claim was time barred. As were the other claims at issue in the appeal.


Friday, May 5, 2017

Silicon Valley Boss Overreach

Glassdoor, Inc. v. Superior Court, No. H042824 (D6 Mar. 10, 2017).

A former employee of TechCo posted a scathing anonymous review on Glassdoor, a website that lets people review past and current employers. TechCo sued the employee as a John Doe for violating an NDA that all TechCo employees supposedly must sign. It then subpoenaed Glassdoor for the review and the poster’s info. Glassdoor objected, TechCo moved to compel, and the trial court granted the motion. Glassdoor took a writ.

The first issue is whether Glassdoor has standing to stand up for Doe’s First Amendment interest in his anonymity. It does. Although it’s a relatively recent development in the law, it has become clear that a publisher can stand up for the right of an anonymous contributor to maintain his anonymity. 

That is particularly true with sites like Glassdoor, which have a substantial business interest in protecting their posters’ anonymity. (Although Glassdoor doesn’t raise it, the court notes in a footnote that the situation is not too far from the interest of a newspaper reporter in refusing to reveal her sources.)

As to the merits of the motion to compel, the court adopts the standard applicable to efforts to subpoena the identities of anonymous Internet “speakers sued as “Does” for libel or slander: (1) the plaintiff must have made reasonable effort to provide notice of the suit to the Doe; (2) the plaintiff must make a prima facie showing of the validity of its claim. The showing is akin to that needed to defeat summary judgment or an anti-SLAPP motion—evidence that, if believed, would be enough to prove a claim.

The Court of Appeal further notes that, to make a prima facie case for an NDA breach, TechCo needed to specifically identify the actionable statements and explain to Glassdoor why they are actionable. It never did that. Although TechCo claimed it couldn’t be more specific without disclosing trade secrets, the court calls BS: “The vagueness with which [TechCo] framed its claims in the face of Glassdoor’s repeated demands for specificity is redolent with the possibility that greater specificity might disclose not valuable secrets but a lack of merit in the claims themselves.”

At the end of the day, TechCo failed to show that any of the statements in Doe’s review were actionable violations of the NDA.

Writ granted.

Thursday, May 4, 2017

Dependency Prelim Isn’t Determination of Fact that Precludes § 170.6 Strike

Johnny W. v. Superior Court, No. A150579 (D1d1 Mar. 9, 2017)

Code of Civil Procedure § 170.6 permits a party to strike a trial judge by filing an “affidavit of prejudice.” The affidavit purports to attest that the party has reason to believe the judge is prejudiced. No further inquiry is permitted. If the affidavit is properly filed, disqualification is automatic. There are, however, some limits, mostly addressed to timeliness. And even if a challenge is timely, a party can’t invoke § 170.6 once the trial court has made “a determination of contested fact issues related to the merits.”

The issue on this writ petition is whether the trial court made a determination of contested fact at an initial detention hearing in a dependency matter. It didn’t. The standard at that hearing was a prima facie; it was addressed only to the sufficiency of the evidence. The court didn’t weigh anything; it just determined that the agency’s case was supported by evidence that, if credited, was substantial. Analogizing to criminal cases holding that a § 170.6 can be timely filed after a prelim, the court holds that the hearing here doesn’t constitute a determination of contested fact issues.

Writ granted.

One interesting random thing: this opinion is a per curiam that doesn’t identify an authoring justice. Don’t see those too much in California, at least in civil appeals. 

Wednesday, May 3, 2017

Manufacturing Juror Consent

Shanks v. Dept. of Trans., No B268459 (D2d6 Mar. 9, 2017)

Juror No. 7 in a wrongful death case got dimed out by Jurors 1 and 2 for refusing to deliberate. The court questioned the tattlers, but not No. 7. It then discharged No. 7 replaced her with an alternate. The newly constituted jury then quickly rendered a $12.6 million verdict after a less than a day of deliberation.

Not good enough.

No. 7 had been the source of some drama before deliberations when Plaintiff accused her of sleeping. (Defendant said it looked more like she just visibly hated Plaintiff’s case.) And then during deliberations, it came to light that No. 1 and No. 2 were miffed with No. 7 because they thought she came into the deliberations having prejudged the case. The court asked these jurors a series of narrow leading questions designed to suss out the situation without revealing any deliberations. Although Defendant asked the court to further inquire of the foreperson, the court didn’t do so, expressing some concern about undertaking a heavy-handed inquiry that could interfere with the deliberations. It then relieved No. 7 and replaced her with an alternate.

In a new trial motion, Defendant put in a declaration from No.7, which said she was not sleeping, that she listened to all the evidence and argument, and that she didn’t prejudge the case—she just simply strongly believed that there should be a defense verdict. She also said that Nos. 1 and 2—who had become chummy and wanted a plaintiff verdict—were just annoyed with her for having opposing views. The trial court denied a new trial; Defendant appealed.

A trial court can discharge a juror when she can’t perform her duties, which includes a failure to deliberate. But there’s a big difference between a non-deliberator and a holdout. Dismiss the latter and you’ve effectively deprived the losing party of a jury trial. So to protect from undue meddling, on appeal, a discharge can be affirmed only if the inadequacy is a “demonstrable reality” revealed in the record.

If there’s some indica of non-deliberation, the court needs to investigate in a non-cursory fashion, albeit in a way that does not reveal the status of ongoing deliberations. The court’s inquiry here wasn’t up to snuff. At minimum, the court needed to inquire of No. 7, if not all twelve jurors on the panel. It certainly should not have stopped its inquiry after questioning Nos. 1 and 2—the two jurors who took issue with No. 7. That slanted the inquiry towards discharge. Given the flawed inquiry, it wasnt a demnostrable reality from the the record that No. 7 was a non-deliberator, instead of a holdout.

But unlike most of the precedent in this area, this trial was civil, not criminal. Plaintiff didn’t need a unanimous verdict to win, only a 9-3. So there’s a question of prejudice. Although the final verdict was 11-1 on most issues—suggesting that No. 7 wouldn’t have made a difference—it was 9-3 on the question of apportionment of fault. That issue will need to be retried.


Tuesday, May 2, 2017

Receiver Procedure Fine on Declarations

City of Crescent City v. Sarvada Nand Hanumanthu Reddy, No. A143640 (D1d4 Mar. 7, 2017)

A motel up in Del Norte County got hit with a judgment for failure to comply with building codes, but afterwards still couldn’t manage to comply. So Crescent City got the superior court to appoint a receiver to oversee compliance. Motelier appeals.

First, M says that his objections to the city’s evidence weren’t properly ruled on. But he forfeits that argument by failing to address specific objections in his brief. And in any event, it looks like most of M
’s objections are not really admissibility issues at all, M simply thinks the city’s evidence was wrong.

M also argues that the trial court erred by refusing to hear live testimony. But a motion to appoint a receiver is a law and motion matter, for which evidence is generally taken by solely declaration unless good cause is shown. Cal. R. Ct. 3.1306(a). Moreover, a party who wants live testimony at a law and motion matter must request it in writing at least three days before the hearing. Cal. R. Ct. 3.1306(b). As M didn’t comply with that rule, it wasn’t an abuse of discretion for the trial court not to take live evidence.

Finally, M appeals the ruling appointing the receiver, which is mostly a substantive issue involving the Health & Safety Code. Suffice it to say, the arguments appear to be similar to
M’s evidentiary objections—complaints that the City’s evidence shouldn’t have been credited over his own. But a trial court is entitled to resolve these kinds of conflicts on a motion and certainly doesn’t abuse its discretion by doing so.


Friday, April 28, 2017

Nothing New, Move Along

Betancourt v. Prudential Overall Supply, No. E064326 (D4d2 Mar. 7, 2017) 

Not really sure why this one was published. Straight up holds that PAGA claims can’t be compelled to arbitration because Plaintiff is technically standing in the shoes of the state, qui tam-style. That’s essentially the Supreme Court’s holding in Iskanian, so this doesn’t add much to the mix.


Thursday, April 27, 2017

No Tolling Under § 340.6 Post Attorney’s Motion to Withdraw

Flake v. Neumiller & Beardslee, No C079790 (D3 Mar 2, 2017)

Under Code of Civil Procedure § 340.6, the statute of limitations on an attorney malpractice claim is tolled while the attorney continues to represent a client. In this case, the attorney sought leave of court to withdraw before the SOL had run, but that permission wasn’t granted till a year later, by which time the SOL had run. So for Plaintiff’s claims to survive, § 340.6 tolling needs to continue apace even after the attorney took steps to withdraw. That, however, is not consistent with § 340.6, which is based on the idea that a client shouldn’t have to investigate the performance of his own lawyer while an attorney client relationship still exists. Once the lawyer moved to withdraw—a fact known to the client—client has no basis to think that the relationship is ongoing. So no tolling from the time the withdrawal was filed.


Monday, April 24, 2017

Too Creative . . .

Haniff v. Superior Court, No. H043345 (D6 Mar. 1, 2017)

The trial court ordered a personal injury to submit to a vocational rehabilitation exam to examine his capacity for other work in the future. The exam is basically an interview, along with some aptitude and interest testing. Defendants wanted it to show mitigation against Plaintiff’s wage loss claims.

But Plaintiff took a writ, which the Court of Appeal grants. Discovery in California is a creature of statute; parties can’t get forms of discovery that aren’t authorized. Code of Civil Procedure § 2019.010 lists those methods: “(1) oral and written depositions; (2) interrogatories to a party; (3) inspections of documents, things, and places; (4) physical and mental examinations; (5) requests for admissions; and (6) simultaneous exchanges of expert trial witness information.” Submitting to a vocational rehabilitation exam is not one of them. Nor, contrary to Defendant’s argument, was the exam authorized by § 2017.010, which broadly defines the scope, not the methods, of discovery.

Writ granted.

Friday, April 7, 2017

How SLAPPs Go South.

Melamed v. Cedars-Sinai Med. Ctr., No. B263095 (Feb. 27, 2017)

Another case in the intersection between the anti-SLAPP statute and hospital peer review. 

The peer review at issue suspended privileges for Plaintiff, a surgeon, for messing up a child’s scoliosis surgery. Plaintiff sued, however, claiming that the suspension was, in fact, in retaliation for Plaintiff’s complaints about patient safety at the hospital. 

In a pretty short-shift analysis, the court finds that plaintiff’s claim arises from the peer review process, which is an “official proceeding authorized by law,” under Code of Civil Procedure § 425.16(e)(2). That doesn’t seem right to me, for the reasons I discussed in my post on the 2015 DeCambre case. Viz., that the peer review isn’t the gravamen of the claim for retaliation—it is the gravamen of the hospital’s defense that it had a non-retaliatory reason to discipline the doctor. 

The court goes on to find that Plaintiff failed to make a prima facie case, so his claims were properly stricken.


I’m in the middle of a trial, so I don’t have a ton of time to grock into the details of this, but here’s an unscientific, anecdotal hot take on what most likely leads to erroneous anti-SLAPP rulings: Things go sideways when plaintiffs fail to seriously contest the first, “arising from,” element, wither at trial or on appeal. I haven’t read the briefs, but that seems to have occurred here.

Unless you represent a politician suing a newspaper for defamation or something incredibly obvious like that, I don’t care how good you think your case is on the merits. You are leaving money on the table if you don’t contest prong one. As a perusal of four-year history of this publication will show, there is a ton of anti-SLAPP precedent out there. It is contradictory, confusing, and not-infrequently wrong. Wrong stuff I blogged about in 2013 is just now finally being ironed out by the Supreme Court. Often, like this case, things seem obvious when they are not. Which makes it expensive to research and understand for a non-specialist litigator who might not have a limitless budget. But this is not a place to skimp.

And on the flip side, I really wish courts would be more careful in publishing cases where the plaintiff failed to put up a serious fight on prong one. Don’t publish. Or just say the issue was conceded, or waiver, or whatever. But holding, in published opinion, that the arising from prong has been met based on an argument that has not been thoroughly or vigorously made by a party just leads to more confusing and contradictory precedent.

Thursday, April 6, 2017

RFA Withdrawal Can Cost You Fees

Rhule v. Wavefront Technology Inc., No. B267359 (D2d5 Feb. 23, 2017)

The trial court let Plaintiff withdraw two admissions tendered in response to requests for admission, conditioned on an award of fees based on reliance on those admissions. Plaintiff appeals. 

But there isn’t a reporter’s transcript. The trial court’s minute ordered noted that the motion had been granted. A subsequent entry set a date for a fee motion. And then the trial court heard the fee motion, which also wasn’t transcribed. The court’s minute order, citing Code of Civil Procedure § 2033.300(c), awarded $8,125 in fees out of the $10,000 sought by Defendant.

Because of the lack of a record, the Court of Appeal finds it can’t entertain the challenge to the amount of the fee award, which was not facially beyond the pale. That’s a discretionary call where the trial court can act as a factfinder. So in the absence of a record, an abuse of discretion can’t be found.

Which still leaves Plaintiff’s purely legal challenge that § 2033.300 doesn’t permit the court to assess fees as a condition of letting a party out of an admitted RFA. Section 2033.300(c) specifically permits the court to shift the “costs of any additional discovery.” As used there “costs” isn’t limited to recoverable costs under § 1033.5, but pragmatically the marginal costs caused by permitting the withdrawal of the admission, including attorneys’ fees. Moreover, “costs” can include fees when shift-able by statute, and the RFA statutes permit an award of fees as a consequence for an unsubstantiated denial, which suggests, albeit obliquely, that “costs” in § 2033.300 should include attorneys’ fees. 


Tuesday, March 28, 2017

SJ Experts Must Be Disclosed by Statutory Deadline

Perry v. Bakewell Hawthorne, LLC, No. S233096 (Cal. Feb. 23, 2017)

Based on the statutory deadlines, California’s somewhat unique method of expert discovery—a mutual exchange of expert information—ordinarily happens after summary judgment briefing is completed. Prior cases have thus held that when the expert exchange deadlines haven’t run, the failure to pre-disclose an expert whose testimony is used in connection with a summary judgment motion does not merit preclusion under Code of Civil Procedure § 2034.300, which applies to undisclosed trial experts.

What happens, however, when the circumstances of the schedule wind up with the expert exchange date occurring before summary judgment? Some older cases held that the disclosure deadline applied only to trial experts, so the failure to exchange information didn’t preclude an expert’s use on summary judgment, even if the exchange date had passed. But the Supreme Court, in an unanimous opinion by Justice Corrigan, disagrees and disapproves those cases in a pretty straightforward analysis. 

Section 437c(d) says that summary judgment affidavits must “set forth admissible evidence.” And § 2034.300 says that the testimony of expert witnesses whose information has not been exchanged as of the exchange date is inadmissible. So unless the party offering the testimony SJ can show one of the exceptions to § 2034.300
such as good cause for a tardy disclosure, see § 2034.710—the undisclosed expert’s testimony is inadmissible and can’t be used at summary judgment.

Court of Appeal affirmed.

Sunday, March 26, 2017

Tuesday, March 21, 2017

Our Yemen of Libel Tourism ...

Argentieri v. Zuckerberg, No. A147932 (D1d5 Feb. 15, 2017)

If you want to sue someone for defamation and you have a choice of forum between California and pretty much anywhere else, California is almost always a bad move
, even taking the weather into account. Often the worst. Some of us like it that way.

Friday, March 10, 2017

There's No Intra-Case Res Judicata

Samara v. Matar, No. B2657525 (D2d7 Feb. 15, 2017)

P brings a dental malpractice claim against Dentist and against Dentist’s Employer. Employer was sued both on a respondeat superior theory and for negligently retaining Dentist, who supposedly had some licensing issues. Dentist wins SJ on the alternative grounds of the statute of limitations and lack of causation. The court of appeal affirms on the SOL, but expressly doesn’t reach causation. On remand, Employer moves for SJ, arguing that the prior no-causation ruling is preclusive in a way that prevents vicarious liability based on Dentist’s conduct. Trial court grants the motion.

There’s a bunch of case law that says that non-mutual collateral estoppel can’t apply to an adverse finding that is appealed, but which the appellate court expressly declines to reach. The trial court here, however, tried to sidestep those cases by claiming that the issue here was res judicata, not collateral estoppel. (Viz., claim, not issue, preclusion). But the preclusive power of res judicata applies only to separate lawsuits. As the judgment against Dentist was entered within the same case, res judicata doesn’t apply. 

Which means if there’s going to be preclusion, it will have to come from collateral estoppel. But collateral estoppel only applies to issues that are actually decided. And the cases are pretty clear that an issue isn’t “actually decided” when it’s appealed but the appellate court expressly declines to reach it. 


Tuesday, March 7, 2017

Everybody Deserves a Little Delay

Hamilton v. Orange Cnty. Sheriff’s Dept., No. G051773 (D4d2 Feb. 14, 2017)

Defendant in this case filed a summary judgment motion that would have been timely consistent with the original trial date. But the first hearing it could get was four days after trial was set to start. The court subsequently granted an ex parte to move the trial date back so that the SJ hearing date would be more than thirty days before trial.

Plaintiff noticed up the depositions of the SJ declarants plus a PMQ about six weeks before the SJ opposition was due. Defendant objected and then failed to get back to Plaintiff about dates for the depos for over a month. Just before the SJ opp was due, in lieu of setting the depos immediately, Defendant agreed to stipulate to put off the trial and the SJ hearing for another two months to allow time for the depos to go forward. With approval on the stipulation pending, Plaintiff didn’t file an SJ opposition on the due date. The court then denied the stipulation because of a lack of diligence, and proceeded to grant the unopposed MSJ and enter judgment for Defendant. The court subsequently denied a Code of Civil Procedure § 437(b) motion to set the judgment aside.

When a party is faced with an MSJ and still needs evidence to oppose it, the standard relief is to file a declaration under § 437c(h), laying out what discovery is needed and why more time to get it is merited. But that doesn’t preclude the party from taking the alternate route of seeking a continuance of the hearing, which like any continuance, can be granted on good cause in the sound discretion of the trial court.

Even if § 437c(h) wasn’t met here, the stipulation showed good cause to continue the hearing. Defendant had shined plaintiff on about setting dates for the depos, which had been timely noticed in time to meet the original schedule. Indeed, Defendant had essentially conceded that its scheduling cooperation was less than exemplary when it agreed to the stipulated continuance. So particularly given that the trial court had already continued the case to accommodate Defendant’s inability to get a timely summary judgment hearing, it was unfair and an abuse of discretion for the trial court to deny the stipulated continuance to give Plaintiff time to take the depos needed to oppose.