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

Brushclearing.

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.

Reversed.

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.”

Affirmed.

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.


Reversed.

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.

Affirmed.

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.

Reversed.

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.

Reversed.

Arguably Unauthorized Settlement Is Voidable, Not Void, under Code of Civil Procedure § 437(d).

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