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.


Tuesday, February 28, 2017

CBA Doesn't Require Union Nurses to Arbitrate Wage and Hour Claims

Wasserman v. Henry Mayo Newhall Mem. Hosp., No. B267975 (D2d4 Feb. 7. 2014)

Plaintiff is a unionized nurse bringing a class action for wage and hour violations against her employer. Her union’s collective bargain agreement contains a bunch of provisions related to hours, pay, breaks, and overtime, and it also contains a grievance procedure that culminates in a labor arbitration. Plaintiff’s claims, however, are statutory; they are not grounded in breach of the CBA. So the question is whether the arbitration provisions of the CBA are broad enough to compel arbitration anyway.

The fight is over whether the arbitration in the CBA was sufficiently “clear and unmistakable” as to cover statutory claims. You see, unlike an ordinary arbitration agreement, which is read in favor of arbitrability of claims, waiving it members jury trial rights for statutory claims brought outside of the CBA is not something unions ordinarily do. (Indeed, there’s a threshold questions of whether unions can do that, but the parties didn’t address it.) So generally, a CBA is not subject to a presumption of arbitrability for non-CBA claims. Hence the “clear and unmistakable” standard. 

The CBA here didn’t cut it under that standard. It says the grievance procedure covers “any complaint or dispute arising out of the interpretation or application of a specific Article and Section of this Agreement.” It further says that the arbitrator “shall be without authority to decide matters specifically excluded or not included in this Agreement.” Those are hardly the kinds of clear and unmistakable manifestations of intent that would subject statutory claims—claims “not included in this Agreement”—to arbitration. 


Saturday, February 25, 2017

Ref Don't Matter if the Decision Was Right

Stella v. Asset Management Consultants, Inc., No. B269207 (D2d7 Feb 6, 2017)

A limited partnership agreement for a real estate investment contains a provision that subjects any dispute arising from or related to it to judicial reference under Code of Civil Procedure § 638. A motion for reference was granted, and the referee subsequently granted a demurrer based on the statute of limitations. The plaintiff appeals both the reference order and the demurrer.*

Taking an interesting tack, the Court of Appeal affirms the sustained demurrer. Then, since the court addressed de novo the merits of the dismissal in exactly the same fashion as it would had the order been by a superior court judge, it finds any error in granting the reference harmless. It thus declines to reach the merits of that decision.

*A § 638 reference is somewhat like an arbitration, but it is subject to the ordinary rules of civil procedure. In the case of a consensual general reference, the referee’s ruling essentially gets entered as a decision of the court, from which a judgment can be entered and then subject to appeal like any civil judgment. See § 644(a).

Sunday, February 19, 2017

Expert's MSJ Declaration Needs to Engage to Be Admissible.

Sanchez v. Kern Cnty. Med. Transp. Corp., No. F069843 (D5 Feb 2, 2017)

Plaintiff is a severely concussed high school footballer. He claims that the ambulance crew who transported him to the hospital were grossly negligent in taking too long, exacerbating his injuries. The Ambulance Company obtained summary judgment based on a lack of evidence that whatever additional time was taken was not a cause of any increase in the severity of his injuries.

Key to the grant of summary judgment was that the trial court sustained several objections to the declaration of Plaintiff’s medical expert. Evidentiary objections to summary judgment are often made, but infrequently ruled upon. But the court did so here. In doing so, it applies the same standard as it would were the expert testifying at trial.

Mostly, the objections were granted because the testimony was too conclusive and speculative. He did not specially apply the factual evidence to his analysis, did not explain how the relevant literature set out standards applicable to the facts of the case, and did not so much as review the (apparently much more detailed) medical expert evidence submitted with the Hospital Company’s motion. Indeed, the declaration essentially assumed facts that were unsupported by, or contrary to, evidence in the record about the historical events related to Plaintiff’s injury and transport.

Plaintiff claims, however, that an expert declaration in an MSJ opp doesn’t need to be as detailed as actual trial testimony. But the authorities he relies on did not entail expert declarations that made unsupported factual assumptions. Nor did they involve declarations from moving parties showing that, based on the current literature, the assumptions made by the expert were unsupported and speculative. When that happens, the opposing expert needs to come up with some actual analysis of the application of the standards relied on by the moving party’s expert. It needs to either show some dispute in the relevant literature or in the way it applies to the facts of the case. Conclusory opinions aren’t enough to create disputes when the moving party puts forth legit expert evidence that, if credited, would negate an element of the claim.

By “consider[ing] a significantly incomplete universe of information” Plaintiffs expert failed to render an opinion “based on matter ... that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” Evid. Code § 801(b). Thus the opinions were appropriately excluded. And in their absence, there were no disputed facts that merited denying summary judgment.


Friday, February 17, 2017

Sanctionable, But Not Contempt.

Van v. Language Line Servs., Inc., No. H041459 (D6 Feb. 1, 2017)

Plaintiff in an employment case filed an ex parte application to stay her deposition, which the court denied. She continued to object after the denial. And when the noticed date came around, she didn’t show. Defendant served some more noticed. Same objections.

Defendant ultimately moved to compel, for sanctions, and for an order of contempt. It argued that the no-show was in defiance of the order denying the ex parte to stay the depo. Plaintiff opposed and filed her own motion to quash.

The trial court issued a $1,050 sanction for the original ex parte, finding it without substantial justification. It then held her in contempt for violating the order denying the ex parte, ruling that she had no basis to continue to object after it was denied. The court awarded $7,700 as a contempt sanction. The court kicked the motion to compel out to coincide with plaintiff’s motion to quash. Plaintiff then voluntarily dismissed, and defendant was awarded costs.

There’s a threshold appealability issue, because, while a sanctions order over $5,000 is appealable, contempt orders are reviewable only by writ. Since the discovery sanctions were under the threshold, Plaintiffs path to the Court of Appeal was by way of writ. But Plaintiff filed only a notice of appeal. Given the stigma of contempt, however, the court declines to punish Plaintiff for her lawyer’s mistake and construes the appeal to be a writ, at least as to the contempt order.

On the merits, contempt only lies from a courts order that a party do or not to do something. A mere denial of relief in a motion brought by the alleged contemnor doesn’t really cut it. Clearly, by no-showing at her depo after her request for a stay was denied, Plaintiff opened herself up to regular old discovery sanctions under Code of Civil Procedure § 2025.450(g)(1). But since the denial didn’t order her to appear, there was no basis to hold her in contempt.


Thursday, February 16, 2017

Nedlloyd Eats Jury Trial Waiver

Rincon Realty LLC v. CP II Rincon Towers, Inc., No. A138463 (Jan. 31, 2017)

In a very large real estate deal involving a luxury building in SF
s rapidly developing Rincon Hill hood, the contract picks New York law as broadly as a contract can express an intent to do that. It also contains a jury trial waiver. It does, not, however, lay a mandatory venue in NY. (Or at least the parties never argued it did.) And that is a fatal fact.

Friday, February 10, 2017

Defense Judgment + Contingent Side Payment ≠ Moot

Hensley v. San Diego Elec. Co., No. D070259 (D4d1 Jan. 31, 2017)

Plaintiffs in this case lost an in limine motion on whether they could recover emotional distress-related damages on their claims, which made it not worth it to try the case. The parties tried to enter some kind of a stipulated arrangement that permitted an appeal. But the first time it went up, the Court of Appeal found that the arrangement was too ambiguous to count as a final judgment so no appeal would lie.

On remand, the parties agreed privately that Defendant would pay Plaintiffs a dollar amount on their non-emotional distress claims. Defendant also agreed to make an additional liquidated payment, but only if the Court of Appeal were to reverse the in limine ruling and remand for trial. They then stipulated to enter a final judgment in favor of Defendants that Plaintiffs take nothing on all claims, but which specifically stated that it was without prejudice to Plaintiffs right to appeal the damages.

The Court of Appeal finds that this time around, the parties did enough to create an appealable final judgment.There's no doubt that, on its face, the judgment finally disposed of all of the claims in the litigation. Nothing ambiguous or contingent about it. The fact that it was taken for the purposes of facilitating an appeal didnt change that fact.

But what about the side deal? Under the parties agreement, there wont ever be a trial even after a remand, because they agreed to resolve that contingency with a payment. That creates a tricky situation. On one hand, theres no question that the parties could have struck the same deal ten minutes after the reversal. The judgment is still a judgment and the appeal has meaningful consequences for the parties. So, according to the court, the side deal doesnt make the case moot.

That said, the court is clearly concerned with the potential that these kind of side bets could be used to manipulate appellate jurisdiction and avoid mootness. Clever parties could use these kinds of agreements to trick courts into issuing advisory opinions. The court finds that these concerns dont control here, however, because the amount of the side-payment essentially represents a liquidation of [Plainiffs] emotional distress damages for their causes of action for trespass and nuisance, and is a matter still at stake between them. But the court makes clear that if the payment were more arbitrary or manipulative, it could well be sufficiently divorced from the true merits as to render a case moot. 

The court goes on to reverse on the damages question. So Plaintiffs get their emotional distress covered without going to trial.


Wednesday, January 25, 2017

“Somewhere Along the Line, Litigation Must Cease.”

Gillies v. JPMorgan Chase Bank, N.A., No. B272427 (D2d6 Jan. 24, 2107)

Plaintiff in this case has successfully used serial litigation to delay foreclosure on his mortgage, which he stopped paying in 2009. He has already lost two state court cases (and appeals), a federal case (and appeal), and a case in bankruptcy court. The court here is not amused. It dutifully walks through and sustains the trial court's demurrer on each cause of action. It then (perhaps sua sponte) drops some knowledge on the import of res judiciata in a section called “The Sanctity and Integrity of Final Judgment.” The Court calls out plaintiff (an attorney) for treating “adverse final judgments as mere suggestions which allow him to perpetually file new lawsuits on new theories.” Explaining that “[h]e is wrong,” the Court of Appeal specifically points out that the doctrine will also bar any future claim brought by Plaintiff addressed to foreclosure on his house. 


Tuesday, January 24, 2017

Maybe Mandatory, But Definitely Not Jurisdictional.

Kabran v. Sharp Memorial Hospital, No. S227393 (Cal Jan. 19, 2017)

The issue is whether Plaintiff’s late filing of declarations in support of a motion for new trial—to which Defendant didn’t object in the trial court—is a jurisdictional defect that can be raised as a matter of right for the first time on appeal. The Supreme Court affirms the court of Appeal in 2015’s Kabran decision and says no, for largely the same reasons.

Monday, January 23, 2017

Qu'est-ce que le dépeçage?

Chen v. L.A. Truck Cntrs., No. B265304 (D2d8 Jan. 18, 2017)

Some tourists were killed or injured in a tour bus crash on the way to the Grand Canyon. Plaintiffs sued the Bus Driver, the Tour Company, the Dealer that sold the bus to the Tour Company, and the Manufacturer that built the bus. Theres not much dispute that Driver was at fault for speeding and swerving off the road and that a substantial factor in Plaintiffs injuries (including two deaths) was that the bus didnt have passenger seat belts. 
Plaintiffs are Chinese nationals. Manufacturer is from Indiana, where the bus was assembled. Dealer, Tour Company, and Driver are from California. But the bus was delivered to the Tour Company in Nevada. And the accident occurred in Arizona. Which all sets up a bar-exam-quality choice-of-law problem.

Friday, January 20, 2017

Five-Year Rule Stops on Swearing of Venire

Stueve v. Buchaleter Nemer, No. G052779 (D4d3 Jan. 18, 2017)

Absent grounds for tolling, a California case needs to be “brought to trial” within five years of filing. See Code Civ. Proc. §§ 583.310, 583.340, 583.360. In a jury trial situation, “brought to trial” means “when the jury is impaneled and sworn.” In this case, the venire was assembled and prospective jurors were sworn for voir dire three days before the five years was up. Five days later (including an intervening weekend) voir dire was ongoing. Defendant moved for dismissal under the five-year rule, which the trial court granted, holding that no jury had been “impaneled and sworn” when the clock ran out.

The Court of Appeal reverses. It holds that a jury is “impaneled and sworn” when the venire is assembled in the courtroom and given their initial oath to answer voir dire questions truthfully. The standard does not require the actual impaneling of the twelve-member jury who will be deciding the case or the swearing of that jury to their duties in deciding the case. Both the provisions of the Code of Civil Procedure that set out how jury service works and the relevant case law bear that out.


Thursday, January 19, 2017

Can't Force a Waiver of the Psychotherapist Privilege by Claiming that an Adversary Is Not Mentally Ill.

N.S. v. Superior Court, No. A148694 (D1d4 Jan. 17, 2017).

This dependency case raises an interesting issue about at-issue privilege waivers that people often miss. A party can waive a privilege by injecting an issue into a case where the privileged communications are integral to the issue. But the converse isnt true. The other side cant force the holder of a privilege waive by presenting an issue where privileged communications might be evidence that is useful to the proof or disproof that issue.  Which is what happened here.

Petitioner is a Minor who was receiving foster care services even after she turned eighteen. The Welfare & Institutions Code has list of eligibility factors for ongoing foster care, which include certain kinds of mental illness that prevent the ward from going to school or holding down work.The Agency tried to terminate the services. At a hearing regarding her status, when asked why she still qualified, the Minor said she had a mental condition. The Agency then called the psychologist, who said she had written a letter explaining that the Minor did, in fact, qualify. But when asked about her diagnosis and its basis, the psychologist refused to answer on the grounds of Evidence Code § 1014’s psychotherapist-patient privilege. The trial court held that any privilege was waived on account of the testimony, and Minor took a writ.

Under Evidence Code § 1016, the privilege does not apply to a “communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered” by the patient. As the Court of Appeal explains, § 1016 “applies when the patient’s own factual allegations raise an issue, not when the patient does no more than joining an issue by denying allegations.” “That is, the patient-litigant exception of section 1016 of the Evidence Code compels disclosure of only those matters which the patient himself has chosen to reveal by tendering them in litigation.” (emphasis added, internal quotes omitted). Because here, the Minor's alleged failure to come within one of the statutory grounds was put into play by the Agency, not the Minor, the at-issue waiver rule is inapplicable. The fact that the Minor's treatment was implicated by her denial that she failed to meet the statutory requirements did not mean that she affirmatively put confidential communications rendered as part of her treatment at issue. That are, of course, other ways to get at the information at issue, such as a neutral mental health evaluation, which wouldn
’t be privileged, but the court doesn’t reach whether those should have been ordered here.

Writ granted.