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.