Monday, October 16, 2017

Some Chutzpah from a Corporate Pro Se

Davis Test Only Smog Testing v. Dept of Consumer Affairs, No. C079354 (D3 Sept. 28, 2017)

A corporation can’t appear pro se by having a nonlawyer employee represent it in a litigation. In this case, a corporation did just that in an administrative proceeding about smog tester licensing. It lost. So in its administrative mandamus petition to the superior court challenging the ALJ ruling, the company—now represented by counsel—argued that the ALJ ruling should be vacated on that grounds. But: (1) the no corporate pro ses rule generally doesn’t apply in administrative proceedings; and (2) a company can’t raise its own failure to be represented at an earlier proceeding as a grounds to vacate that proceeding. Indeed, on the second point, if the company wasn’t properly represented, it never appeared at all. I.e., it defaulted.


Friday, October 13, 2017

Oregon's Government Tort Claim Process Applies in California State Court

Oregon State Univ. v. Superior Court, No. D071752 (D4d1 Sept. 28, 2017)

Plaintiff was injured in California through the alleged negligence of Oregon State University. He sued here, in state court. But he never filed a government code claim with OSU within the time allotted under Oregon state law. Question is, does that doom his suit, as it would were the defendant a California state government entity?

The court here holds that it does, as a matter of full faith and credit. California courts have a constitutional obligation to respect the sovereignty of other states and to apply their laws faithfully. There are exceptions to that rule, like when two states have public policies that are at odds. But since the Oregon code claim process is not significantly different from that in California, there was no reason for the trial Court to decline to apply it here. 

Writ granted.

Thursday, October 12, 2017

State Farm/Rico DQ Order Automatically Stayed Pending Appeal

URS Corp. v. Atkinson/Walsh Joint Venture, No. G055271 (D4d3 Sept. 26, 2017)

Plaintiffs attorneys got disqualified under the State Farm/Rico doctrine for improperly using documents that had been provided to them in connection with a mediation. They have appealed that order and seek, by writ of supersedeas, to stay any proceedings in the trial court pending the appeal. Which raises some interesting questions: 

1. Does an appeal of a DQ order give rise to automatic stay under Code of Civil Procedure § 916? 

2. And if so, does it just stay the DQ order, or the whole case?

Wednesday, October 11, 2017

No Damages for Taking an Arb-able Case to Court

Sargon Enters., Inc. v. Browne George Ross LLP, No. B271718 (D2d3 Sept. 26, 2017)

This is one of those issues that clients ask about with some frequency, but that hasn’t been the subject of a published opinion. Until now. The question is this: If a contract contains an arbitration clause, but, notwithstanding it, a party sues in court, can the other party recover its costs of the court litigation as damages for breach of the arbitration contract? The answer, apparently, is no. 

Monday, October 9, 2017

A Stored Communications Act Primer

Facebook, Inc. v. Superior Court, No. D072171 (D4d1 Sept. 26, 2017)  

The is a criminal case where the defendant argues, unsuccessfully, that he has a constitutional right to subpoena non-public Facebook posts from his alleged victim’s account, notwithstanding that federal law prohibits Facebook from disclosing that info. I’m not going to get into that. 

But the Stored Communications Act, 18 U.S.C. § 2701–12, is something civil litigators should be aware of. It prohibits a person or entity that provides electronic communications or remote computing services from divulging the contents of a communication that is stored, carried, or maintained by that service. § 2702. There are a bunch of exceptions, but a civil discovery subpoena is not one of them. Which is why you can’t subpoena your opponents’ emails directly from Google or AOL or whatever. You need to either demand that stuff from the opponent directly, or get their permission to have the service provide it, which is a permissible exception. See § 2703(b)(3). You can, however, get materials that aren’t the contents of communications, like subscriber information. § 2703(c).

Writ granted.

Tuesday, October 3, 2017

Some Tips for Citing Unpublished Federal Authority

Direct Capital Corp. v. Brooks, No. C081349 (D3 Sept. 22, 2017)

In an order modifying an opinion in a family law case, the court adds two points about citing to unpublished federal court opinions. The first is an uncontroversial statement that Rule of Court rule 8.1115, which says unpublished California appellate cases are unciteable, doesn’t apply to unpublished federal cases. The second, which appears to be more in the way of advice than a rule, is that when a party does do, they should cite to a Westlaw or Lexis number, and if the case isn’t available there, present the case in a request for judicial notice. Good to know.

Monday, October 2, 2017

Conflicts and the Pretend Partnership

Lynn v. George, No. G053563 (D4d3 Sept. 21, 2017)

This case presents an interesting quandary about how to deal with a scenario where the facts relevant to a motion to disqualify a lawyer substantially overlap with the merits of the case where the DQ motion is brought.

A Hot Mess of Preclusion

F.E.V. v. City of Anaheim, No. G052460 (D4d3 Sept. 19, 2017)

This is a civil rights case over a police shooting with a complicated procedural history. Plaintiff first filed in federal court, bringing a § 1983 claim as well as several pendant state claims. The district court granted summary judgment for Defendants on the § 1983 and declined ongoing supplemental jurisdiction over the state claims under 28 U.S.C. § 1367(c). A three judge 9th Circuit panel upheld the district court’s opinion on appeal. Plaintiff sought review en banc.

In the meantime, plaintiff refiled his state claims in state court. But since they were premised on the same factual scenario as the federal claims and governed by similar standards, the superior court found that the state claims were barred by the collateral estoppel effect of the federal judgment, even though the appeals were not final. (Federal preclusion applies from the entry of judgment, even when appeals are pending.) The Court of Appeal affirmed the dismissal.

But then the 9th Circuit granted review en banc and eventually reversed its the panel decision and the district court as well. Cert was eventually denied.

So plaintiffs filed a new state court case and moved to have the prior judgment vacated. The superior court denied the motion and the Court of Appeal denied a writ. The superior court then dismissed the new case, on res judicata grounds—the prior dismissal barred the new case, even though the preclusion that served as the basis of that case’s dismissal would no longer apply. Plaintiff appealed.

Plaintiff first argues that the en banc opinion automatically wipes out the first state court judgment. But that’s not consistent with the law. Under § 16 of the Restatement of Judgments—which is generally followed in California—when a judgement in case #2 is based on a judgment in case #1, the vacation of judgment #1 does not automatically nullify judgment #2. Instead, it subjects judgment #2 to being set aside through a procedurally appropriate vehicle. 

Nor can Plaintiff collaterally attack or obtain equitable relief from the earlier state court judgment. Restatement § 73 suggests that it is appropriate to give relief from a second judgment when it is based on an earlier judgment that is substantively vacated. That’s a grounds for relief from judgment that is specially enumerated in Federal Rule of Civil Procedure 60(b)(5). But for weird historical reasons, California does not have a clean Rule 60(b) analog.  

California does permit the equitable setting aside of a judgment—whether by motion filed in the original case or by filing a separate equitable action. But the grounds for that are very narrow. To vacate, a judgment needs to be facially void or the product of extrinsic fraud. While extrinsic fraud can be hard to define, there’s no way that the 9th Circuit’s en banc order turned the judgment in the first state case into a product of extrinsic fraud. So none of California’s procedural vehicles to set aside a judgment that was based on an earlier judgment that was reversed apply to the circumstances presented here.

At this point, the Court of Appeal is pretty boxed in. Because the judgment in the first case is final—indeed, affirmed on appeal—there isn’t any state law procedure to let plaintiff out from under that judgment. That’s the case even though the result is indisputably wrong, based as it is on the collateral estoppel effect of a judgment that was subsequently overturned.

So the court uses the only tool left. There’s an exception to res judicata when recognizing the effect of the first judgment would work a manifest injustice. An exception that is mostly recognized in cases that say that it doesn’t apply. But given the “highly unusual, even extraordinary” circumstances of the case, the court finds that the exception applies here. The essential concerns motivating preclusion doctrines aren’t present here. Indeed, applying preclusion runs contrary to the idea that cases deserve to be decided on the merits. And since the only merits decision in this case that informed the preclusion rulings was overturned as wrongly decided, the court declines to recognize the preclusive effect of the first judgment.


FWIW, I suppose there is a second option, but not in this court. The federal case is going back to the district court for trial. Given that theres now a federal claim for the state claims to be pendent to, plaintiff could add the state claims back there, and they should relate back to the federal claim for staute of limitations purposes, since they are all based on the same conduct. But I get why the court here sees the need to step in to avoid an injustice.

Friday, September 29, 2017

Court Can't Refuse to Consider Docs Already in the Record

Roth v. Plikaytas, No. D070484 (D4d1 Sept. 13, 2017)

After a trial on liability, a prevailing Defendant in a contract case sought her attorneys’ fees under Civil Code § 1717. The trial court denied the motion as premature because certain equitable claims remained to be tried. So after Defendant won the equitable trial, she filed a second motion. For substantiation of her fees through the first trial, however, she sought to incorporate by reference a declaration filed with her first motion, a courtesy copy of which she gave to the court, but which she did not formally refile. The trial court refused to consider the prior-filed materials because it was unfamiliar with incorporating prior materials in a fee motion, because the prior motion had been denied, and because the the record was voluminous.

That was error. Rule of Court 3.1110(d)—which governs the form of motions—permits reference to other materials already in the trial record by date of execution and title. While Rule 3.1110(j) says that supporting materials should to the extent practicable be attached to the notice of motion, it does not set out a hard and fast requirement. So incorporating the material by reference was not improper. And if the courtesy copy Defendant gave to the court wasn’t good enough, it always had the option to order Defendant to re-file the docs. But it was an abuse of discretion to just ignore them.


Wednesday, September 27, 2017

Privilege Log Necessary, Regardless of Burden

Riddell, Inc. v. Superior Court, No. B275482 (D2d7 Aug. 23, 2017)

Insurers filed a declaratory relief action regarding a coverage dispute with an Insured that manufactures football helmets. The rule is pretty well settled that, to the extent that there are factual questions in the DJ that overlap the underlying litigation, the DJ case must get stayed to avoid prejudice to the insured in having to litigate the merits as part of the coverage dispute. That said, the issue doesn’t come up very often because usually a coverage DJ action can be resolved as a matter of law based just on the policy language and the underlying complaint.

Tuesday, September 26, 2017

Repose Never Goes

PGA W. Residential Assoc. v. Hulven Int’l, Inc., No. E064270 (D5 Aug. 23, 2017)

Debt collection action where the Debtor alleges that a fraudulent transfer claim is time-barred under the Uniform Fraudulent Transfer Act. But while Debtor raised the issue on a demurrer, he did not address it at trial. According to the Court, that doesn’t matter. 

As the substantive discussion in the case explains, the UTFA doesn’t just have a statute of limitations; it has a statute of repose. Once the period has run, any unfiled cause of action ceases to exist. As such it isn’t subject to tolling. Moreover, although it’s a question of first impression in California, the Court follows the majority rule to hold that the benefits of a statute of repose can’t be forfeited. So the failure to raise the defense at trial doesn’t preclude the court from holding that the trial court erred by not granting Debtor’s demurrer on timeliness grounds.


Monday, September 25, 2017

Some Tricky Stuff About Privity

Cal. Sierra Dev., Inc. v. George Reed, Inc., No. C080397 (D3 Aug. 22, 2017)

MineCo and SurfaceCo share rights to some land. Under their agreement, MineCo has the right to mine for gold and SurfaceCo has the right to the surface. SurfaceCo licenses its right to OppCo to build a plant on the surface. Problem is, that interferes with MineCo’s operations. 

Friday, September 22, 2017

Don't Call It a Berman

Otto, LLC v. Kho, No. A147564 (D1d1 Aug. 21, 2017)

In Sonic-Calabasas A, Inc. v. Moreno, 57 Cal. 4th 1109 (2013)—aka Sonic II—the California Supreme Court held that an arbitration agreement is unconscionable if it deprives an employee of the procedural advantages provided in the Labor Code wage claim procedures known as Berman hearings. The Berman procedures permit an employee to litigate claims for back wages in an informal administrative proceeding, with limited pleading, no formal rules of evidence, no discovery, fee shifting, and where the hearing officer has the power to assist the parties in cross examinations and to explain concepts and issues that the (often unrepresented) parties do not understand. If the employee is successful, the Labor Commissioner is tasked with enforcing the award and can defend it on appeal.

Thursday, September 21, 2017

Sometimes the Supreme Court Is Just too Inconvenient

Okorie v. L.A. Unified Sch. Dist., No. B268733 (D2d1 Aug. 16, 2017)

This anti-SLAPP opinion is problematic. But to get to the bottom of it, we need to talk about how to harmonize the California Supreme Court’s recent anti-SLAPP decisions in Baral and Park

Wednesday, September 20, 2017

Objective Lack of Merit Shifts Fees Under CCP § 1038

Ponte v. County of Calaveras, No. C079180 (D3 Aug. 15, 2017)

Plaintiff here brought a sketchy oral contract/promissory estoppel claim against a small County in NorCal. After a bunch of demurrers sustained with leave to amend, the trial court granted SJ for the County. The trial court ultimately found that the claims had been brought in both objective and subjective bad faith, and awarded fees to the County under Code of Civil Procedure § 1038.

Tuesday, September 19, 2017

So Much for Expedient, Efficient, and Cost Effective

Harshad & Nasir Corp. v. Global Sign Systems, No. B269429 (D2d1 Aug. 15, 2107)

The posture here is pretty odd. SignCo sued BurgerCo over $100k in unpaid invoices. The case went all the way through discovery, but three weeks before trial, the parties agreed to arbitrate whatever amounts BurgerCo owed SignCo for services rendered, with the arbitrator to act as if he were a superior court judge subject to the Code, and that the arbitrator’s award would be reviewed just as if it were the judgment of the superior court. Basically, they agreed to an arbitration that had all of the characteristics of a judicial reference.

Monday, September 18, 2017

§ 998 Shifts Costs in FEHA and POBRA Cases

Sviridov v. City of San Diego, No. D069785 (D4d3 Aug. 15, 2017)

The general rule in California is that a prevailing defendant can recover its costs. See Cal. Code Civ. Proc. § 1032(a). But there are various statutes that create an exception to that rule, permitting cost-shifting only when the claim is objectively devoid of merit. Two such statutes implicated here: The Fair Employment and Housing Act and the Public Safety Officers Procedural Bill of Rights Act. But in this case, costs weren’t awarded just because Defendant prevailed. They were awarded because Plaintiff rejected several offers of judgment under Code of Civil Procedure § 998 and failed to best the offers at trial. In a terse analysis, the Court of Appeal holds here that the FEHA and POBRA do not create exceptions to cost-shifting when it is imposed under § 998(c)(1), as opposed to § 1032.


Friday, September 15, 2017

Reverse Veil Piercing for Alternative Entities

Curci Inv., LLC v. Baldwin, No. G052764 (D4d3 Aug. 10, 2017)

As we’ve discussed (on one occasion at very great length), under California law, a creditor can “pierce the corporate veil” of a corporate debtor to get at the assets of its “alter ego” owners. The creditor can do so when the company and the owners share a unity of ownership and interest and when the ends of justice require ignoring the separation between the company and the owners. 

But what about when the owners are the debtors? Can a creditor use veil piercing in a downward direction to get at the assets of a company owned by a debtor? This is generally called “reverse piercing” and one California court rejected it, at least for corporations. Postal Instant Press, Inc. v. Kaswa Corp., 162 Cal. App. 4th 1510 (2008). The court there reasoned that ordinary creditors’ remedies permit creditors to seize shares of corporate stock directly from the debtor. So the creditor does that, and then assumes whatever position the debtor had vis-a-vis the company. Viz., it gets dividends, votes at meetings, has the right to initiate derivative litigation, and can presumably sell the stock to someone else. Maintaining that separation protects other innocent stockholders from an attack on corporate assets due to the malfeasance of some other stockholder.

But here, the company is an LLC, and very closely held one at that. It’s 99 percent owned by debtor and 1 percent by his wife. That, in the courts view, is a crucial difference, because creditors’ remedies don’t permit seizure of an LLC member’s equity in the entity. The best a creditor can get is a charging order redirecting any distributions out of the LLC to the creditor. But if the LLC is still owned and controlled by the debtor, the debtor can avoid the charging order by simply causing the LLC to stop making distributions. 

That’s what happened here. Debtors’ LLC paid out $178 million in the six years before the judgment. But since the $7.2 million judgment in this case issued, no distributions have been made. (Presumably the debtors aren’t having too hard of a time living off their $178 mil.)

The court here finds the corporate/LLC distinction significant in way that can make reverse piercing equitable for LLCs in a way it is not for corporations. The court isnt saying that the veil should be reverse pierced in this case, just that it can be. So it reverses and remands for the trial court to conduct a full blown alter ego analysis.


Thursday, September 14, 2017

Bad Faith ≠ No PC

Parrish v. Latham & Watkins, LLP, No. S228277 (Cal. Aug. 10, 2017)

In order to bring a claim of malicious prosecution, a plaintiff needs to show that the underlying claim was brought without probable cause. Under the so-called interim adverse judgment rule, if the defendant prevailed on a hearing on the merits in the underlying case, probable cause exists, even if that ruling is later contradicted by a later trial court ruling or overturned on appeal, unless it was obtained by fraud or perjury. The point of the rule is that if the case was good enough to convince someone to rule favorable on the merits, there must be some merit in the claim. Generally ruling denying a motion for summary judgment, a non-suit, or a directed verdict counts.

This case—a trade secrets case—has a bit of twist. The trial court in the underlying case denied a summary judgment motion. But after trial, it ruled that the case had been brought in “bad faith,” for the purpose of awarding defendant attorneys’ fees under the CUTSA. According to the Supreme Court, in a unanimous opinion by Justice Kruger, that doesn’t merit an exception to the application of the interim adverse judgment rule to summary judgment denials.

That’s because objective component of the bad faith analysis applies a somewhat lower standard than lack of probable cause. One can, it appears, show objective bad faith by “objective speciousness,” which does not require that any reasonable attorney would agree that the case is totally and completely without merit. But one can only prove lack of probable cause by showing just that.

So in the absence of a showing that the summary judgment denial was procured through fraud or perjury, the interim adverse judgment rule applied. As there was no such showing here, plaintiff could not establish a lack of probable cause.

Court of Appeal affirmed.

Wednesday, September 13, 2017

Sounds More Like Garth Knight to Me

Cross v. Facebook, Inc., No. A148623 (D1d2 Aug. 9, 2017) 

Plaintiff here is Jason Cross, aka, Mikel Knight. No, not Michael Knight—a young loner on a crusade to champion the cause of the innocent, the helpless, the powerless, in a world of criminals who operate above the law. It’s Mikel Knight, a performer of really awful Country/Rap music, who (if one believes the internets) goes around the country with his “Maverick Dirt Road Street Team,” using aggressive and sometimes violent tactics to peddle his merch, harass women, and get in all kinds of traffic accidents.

Tuesday, September 12, 2017

Iskanian Applies Only to the Man's Bread

Esparza v. KS Indus., LP, No. F072597 (D5 Aug. 2, 2017)

In the Iskanian case, the California Supreme Court held that claims brought under the Labor Code Private Attorney General Act are not arbitrable because, although they are litigated by private parties, the relief sought in them—civil penalties—belongs to the state, which never agreed to arbitrate. That includes PAGA “representative actions,” where an employee can seek penalties arising from her employer’s violations involving other employees. Given the US Supreme Court’s upholding of arbitration clause class action waivers in the Concepcion case, Iskanian has had the effect of pushing a lot of formerly class action employment litigation into the PAGA realm. 

Monday, September 11, 2017

Where's Your Interim Award Now, Flanders...

Kaiser Foundation Heath Plan v. Superior Court, No. B272284 (D2d7 Jul. 31, 2017) 

This is a very complicated-seeming healthcare reimbursement litigation between some Hospitals and an Insurer. The parties ultimately agreed to arbitrate the dispute. A big issue in the arbitration was whether some of Hospital’s claims were preempted by provisions of the Medicare Act. The arbitrator found they were not and issued a “Partial Final Award” saying so.

Insurer asked the superior court to vacate the award. But instead, the superior court confirmed it. Insurer now appeals.

But thats dead end.

Friday, September 8, 2017

Dead Plaintiffs Have Already Cooled Off

Baker v. Italian Maple Holdings, LLC, No. D069797 (D4d1 Jul. 31, 2017)

Code of Civil Procedure § 1295 requires a medical services contract with an arbitration provision to expressly afford a 30-day “cooling off” period, during which the elder can rescind the agreement. Section 1295(c) says the agreement is enforceable “until or unless rescinded by written notice within 30 days of signature.” Here, the patient—a nursing home patient—signed the contract but died before the 30 days ran. But she never rescinded. So the issue is can her estate—suing for wrongful death—be bound to arbitrate.

Based on the plain language of the statue, the court’s majority—Justice Aaron, joined by Justice O’Rourke—says it can. The text of the statute doesn’t require the 30 days to run as a condition precedent of enforceability. It requires an affirmative act of rescission to create an exception to it. And since that act never occurred, the contract was enforceable. In reaching it conclusion, the court parts ways with Rodriguez v. Superior Court, 176 Cal. App. 4th 1461 (2009), which goes the other way.

Justice Huffman dissents. Frankly, I find it a little hard to follow. He says that he does “not quibble with the majority’s interpretation of” § 1295(c), but then he says they interpreted it incorrectly because they failed to consider the case in light of the fact that the arbitration agreement waives the right to jury trial. Because that waiver must be knowing and voluntary, the party seeking to compel arbitration bears the burden of showing that an agreement to arbitrate, did in fact occur. While that is generally true, the tone here seems somewhat in tension with the strong pro-arbitration public policy and interpretive canons. In any event, although Plaintiffs don’t actually argue a lack of consent, undue influence, or stuff like that, Justice Huffman would follow Rodriguez to say that when a signatory dies during the 30-day cool-off, arbitration can’t be compelled unless the defendant proves that the decedent would not have exercised the right to rescind.


Thursday, September 7, 2017

Because Because

Mountain Air Enters, LLC v. Sundowner Towers, LLC, No. S223536 (Cal. Jul. 31, 2017)

This Supreme Court case came up recently in the Monster case. Like Montser, it deals with whether a prevailing party can get attorneys’ fees when the contract with the fee provision in it was the basis of an affirmative defense.

Tuesday, September 5, 2017

Someone Else's Decision

Aanderud v. Superior Court, No. F073277 (D5 Jul. 27, 2017).

Trial court here granted a motion to compel arbitration where the agreement contained a class action waiver. In the process of doing so, the court found that that agreement was not unconscionable, the class action waiver valid, and the claims arbitrable. 

Problem is, the agreement contained a clause that specifically and expressly delegated all questions of validity or arbitrability to the arbitrator. Those are generally enforceable. So the trial court shouldn’t have predetermined those issues is granting the motion to compel. And while a granted motion to compel arbitration isn’t generally an appealable order, the court exercises its discretion to treat the appeal as a writ petition and issues a writ directing the trial court to vacate its order.

Writ granted.

Thursday, August 31, 2017

Park Works!

Bonni v. St. Joseph Heath Sys., No. G052367 (D4d3 Jul. 26, 2107)

This is an employment dispute where a hospital employee alleges of discrimination and retaliation in connection with some alleged whistleblowing activity. The hospital has a peer review process, under which the Employee was terminated. As many have in the past, the Hospital argued that the peer review was protected activity under the anti-SLAPP statute, and thus that the claims should be dismissed.

Court of Appeal cases had been inconsistent and confused about this issue for awhile, but then came Park. There, the Supreme Court explained that discrimination and retaliation claims “arise from” the acts of discrimination and retaliation, not from whatever formalized process—like a tenure program or peer review—that some quasi-public employers use to adjudicate employment decisions. While statements made during those processes might be evidence of the discriminatory or retaliatory motives of the employer, the claims don’t arise from them in a way that triggers the anti-SLAPP statute. As the court here explains, “Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion.”

Finding no reason to distinguish Park, the court holds that the motion was granted in error.


Wednesday, August 30, 2017

Turnabout on Remand

Crossroads Investors, L.P.  v. Fed. Natl Mortgage Assoc., No. C072585A (D3 Jul. 27, 2017)

This is an odd one. The Court of Appeal issued an opinion affirming the denial of an anti-SLAPP motion. The Supreme Court issued a grant-and-transfer, ordering reconsideration based on an intervening decision. And now, the the Court of Appeal reverses whole hog, in a ruling that is inconsistent with is prior decision in ways untouched by the intervening Supreme Court case.

Tuesday, August 29, 2017

Common Injuries in Class Cert.

Kizer v. Tristar Risk Mgmt., No. G052558 (D4d3 Jul. 27, 2017)

The trial court denied class cert in a putative wage-and-hour class action brought by insurance claims examiners. The central issue is whether the members of the class were misclassified as exempt administrative employees under the pertinent wage order. Plaintiffs convinced the court that that issue could be tried class-wide. But what they failed to do was to convince the court that, if the class should have been non-exempt, they were subject to an official or de facto policy that required the class members to work overtime. Indeed, Plaintiffs didn’t present very much in the way of evidence that any of the class members worked overtime. Absent that proof, the court found that a common fact issue didn’t exist, much less predominate. It denied cert on that ground and because plaintiff’s claims weren’t typical.

On appeal, plaintiff tries to frame the issue of if and how much overtime each class member worked as addressed only to damages. Individualized damages issues, after all, don’t preclude certification, so long as liability is subject to class-wide resolution. But as the court explains here, that framing isn’t right because there’s a difference between the existence of a common injury and the amount of damages. Whether there was a company-wide overtime requirement goes to liability because misclassification alone doesn’t make the employer liable. (Technically speaking, the exemptions are an affirmative defense.) An employer violates the Labor Code only when an employee who has been misclassified as exempt is required to do stuff that Labor Code says non-exempt employees can’t be made to do. Stuff like working overtime hours without getting time-and-half. And without a company-wide policy (formal or not) imposing such a requirement, liability can’t really be addressed on a class-wide basis.


Monday, August 28, 2017

The Public Issue Standard in a Post-Truth World v. Doubleverify, Inc., No. B264074 (D2d3 Jul. 25, 2017)

Defendant here sells some kind of service where it sniffs out whether adbuys on the Internet are really effective. One part of this service is to uncover whether the sites on which its customers’ ads are displayed have adult content or are commonly used as channels for copyright infringement. Defendant rated Plaintiff’s site—which purports to be a free and legal content streaming site—as containing both of those things. Plaintiff sued Defendant for various libel-ish torts. Defendant filed an anti-SLAPP motion, which the trial court granted. Plaintiff appeals.

Thursday, August 24, 2017

How High? Who knows?

David v. Hernandez, No. B270133 (D2d6 July 25, 2017) 

Plaintiff in a car crash case, who was pretty badly hurt when his minivan hit a truck pulling a uey on the PCH, tested positive for THC when taken to the hospital. The Tucker wanted to get that into evidence as proof that Plaintiff was impaired, and thus at least partially at fault for the accident. 

Monday, August 21, 2017

A Good Day for Fans of Ever More Discovery

Williams v. Superior Court, No. S227228 (Cal. Jul. 13, 2017)

This Supreme Court case is a Rorschach test. If you’re a plaintiff-side lawyer, it seems perfectly reasonable. But if you’re on the defense side, it feels like the Court is stepping in to squelch a rare effort by a trial court to use its discretion to keep discovery reasonable. 

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.