Monday, December 31, 2018

They Come in Groups

Etcheson v. FCA US LLC, No. D072793 (D4d1 Dec. 27, 2018)

This case is pretty similar to the Warren case decided by the 4/2 two weeks ago. Like Warren, it's a Song-Beverly lemon law case where an attorney’s fee demand significantly exceeded the client's damages. Here, the trial court found that the Plaintiff was unreasonable in litigating the case after Defendant made a Code of Civil Procedure § 998 offer, even though the award Plaintiff ultimately obtained doubled the offer. The court awarded less than $3k in fees.

That was error. As we discussed re Warren, when the Legislature enacted the Song-Beverly Act, it specified that fees should be awarded based on the actual time expended by the attorney. In doing so, it was well aware that fee awards could exceed the amount in controversy. That permits consumers to obtain qualified counsel to enforce their rights, which would not be economically feasible if they needed to hire lawyers on contingency. Plaintiff wasn’t required to accept the § 998, and shouldn’t suffer negative consquences for beating it. 

Reversed.

Saturday, December 29, 2018

DQ Is an Equitable, Not Per Se, Standard

Antelope Valley Groundwater Cases, No. F078517 (D5 Dec. 20, 2018)

Firm represents two water districts. District 1 has been embroiled in a litigation for almost two decades. District 2—for which a Firm partner acted as outside general counsel—was originally not in that litigation. But it was eventually brought in, although it retained different counsel. For twelve years, Firm represented District 1 in the litigation and District 2 as its general counsel. The litigation resolved through a settlement that resulted in entry of judgment. A month later, District 2 terminated the GC relationship. And then six months after that, District moved to DQ Firm from representing District 1 in the litigation due to conflicts.  

Thursday, December 20, 2018

Prophylaxis, Not Punishment

City of San Diego v. Superior Court, No. D073961 (D4d1 Dec. 19, 2018) 

Plaintiff is a detective, bringing some employment-related litigation with city’s police Department. Plaintiff’s lawyer also represents someone claiming that the Department fouled up a child sex assault investigation. As part of the leak investigation, Department's internal affairs interviewed Plaintiff, suspecting that she might be the leaker. The IAB folks ask about Plaintiff's conversations with her lawyer. Over her objections, they tell her―on insinuated threat of discipline―that she needs to answer. And she does. Some of these interviews were attended by a Deputy City Attorney. Plaintiff was repped in the interviews by a union lawyer, but her employment litigator was not present.

Plaintiff then moves to DQ the City Attorney’s office in the employment case, for invading her privilege. It not particularly debatable that City improperly violated Plaintiff’s attorney-client privilege. Moreover, because Deputy City Attorney participated in questioning Plaintiff about matters related to litigation when Plaintiff's lawyer wasn’t there, the Deputy violated Rule of Professional Conduct 2-100, which prohibits an attorney from communicating with a represented party.

That all said, a transcript of the interview was filed with the Court in camera. Whatever was elicited had nothing whatsoever to do with Plaintiff's employment case. Because DQ is premised on an opponent’s obtaining an unfair advantage, getting privileged, but irrelevant, info shouldn’t merit disqualifying the City Attorney's office. If there’s no prejudice to the ligation, whether the City Attorney should be subject to some sanction for violating the rules is not the Court’s role. That’s for the State Bar.

Affirmed.

Tuesday, December 18, 2018

On Appealablity

Donohue v. AMN Servs. Inc., No. D071865 (D4d1 Dec. 10, 2018)

The Court of Appeal here affirms a summary judgment for the defendant in a wage and hour case. Something about time clock rounding.

But the interesting procedural issue is the Court’s refusal to consider on appeal plaintiff’s post-judgment ex parte motion to strike the summary judgment. The court goes at this a few different ways, and some of them seem a little shaky. But maybe that’s because the law itself is kind of shaky.


Monday, December 17, 2018

Statistician as Star Chamber

McCleery v. Allstate Ins. Co., No. B282851 (D2d1 Dec. 14, 2018)

Plaintiffs in this wage and hour class action put forward a trial plan where the only evidence on liability would be statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members. The survey seems like it was analytically rigorous, but that’s still not going to fly.


First, it didn’t take into account important factual aspects of the case, such as the fact that plaintiffs were employed by contracting companies whose services were used by, among others, the two insurance companies that are defendants in the case. Without any breakdown of time worked for each defendant (or some other non-defendant customer of the contractor) core liability questions—questions like “did this employee work more than eight hours for any particular defendant?”—can’t be answered. 

More fundamentally, e
ven if the expert was doing a good job as a statistician, the survey still depended on questions like: From 2005 to 2008, how many times did you fail to take a meal break less than thirty minutes long? How many weeks in 2008 did you work more than forty hours? The veracity of the respondents and the quality of their recollection were, essentially, presumed. And because all the survey participants were anonymous, even to the expert, the multiple hearsay inside his opinions cant be impeached or cross-examined. Which is a pretty big problem; it flies in the face the way trials are supposed work in the common law adversarial system. 

No doubt, that experts can sometimes rely on inadmissible hearsay. And it is also true that statistical techniques have a valid role to play in wage-and-hour class actions. But an expert can’t be a conduit that dumps huge amounts of hearsay into evidence while shielding it from any meaningful adversarial testing. As the court explains, no case “suggests a trial may be conducted solely on the evidence of an expert witness relying on an anonymous double-blind survey, no matter how scientific the survey may be.”

Denial of class cert affirmed.

Friday, December 14, 2018

All About the Lodestar

Warren v. Kia Motors Am., Inc., No. E068348 (D4d2 Dec. 12, 2018)

Plaintiff won a jury verdict for about $17 grand on a Song-Beverly Act claim over a defective Kia Forte. That gave her a statutory right to attorneys’ fees under the Act. She submitted a fee motion for $350k in lodestar from 16 different lawyers, requesting a 1.5 multiple. The trial court ultimately awarded only $115k citing a “disconnect” between the damages and the billed time, giving an effective lodestar multiple of .33.

Thursday, December 13, 2018

Anti-Vaxer Benchslap II!

Love v. State Dep’t of Ed., No. C086030 (D3 Dec. 6, 2018)

The Court of Appeal slaps down another constitutional challenge to the repeal of the personal belief exemption to child vaccination laws. The constitutionality of vaccination laws has been upheld by the California Supreme Court for over a hundred years. Of course, the Anti-Vaxers didn’t bother to cite any of those cases in their AOB. Ignoring controlling legal precedent is, it would seem, in the same genus of sophistry as ignoring overwhelming scientific consensus. Except that former Rule of Professional Conduct 5-200 (and, as of November 1, new Rule 3.3(a)(2)) says that attorneys don’t get to live in a legal land of their own creation. And the Court here, rightly, calls them out for it.

Affirmed.

Insurers Litigating the '70s Get a Break

Mechling v. Asbestos Defendants, No. A150132 (D1d5 Dec. 11, 2018)

Plaintiffs claim they were exposed to asbestos due to the actions of a long-dead company that stopped operating in 1974. Some of them sent demands to DeadCo’s potential Insurer. Others did not. Insurer was unable to locate any policy providing coverage to DeadCo. 

Plaintiffs sued DeadCo. They did not serve or join Insurer. Unsurprisingly DeadCo didn’t answer—it had long been suspended. So Plaintiffs’ get default judgments. Sometime thereafter, Insurer found some old policies showing that DeadCo was, in fact, their insured. So Insurer moved to intervene and vacate the defaults based on extrinsic mistake. The trial court granted the motion. Plaintiffs appeal.


As the Court of Appeal explains, courts have an inherent equitable power to relieve a party from a judgment that is entered based on extrinsic mistake. That’s a mistake—unrelated to conduct in the litigation itself—that somehow results in a party’s failure to get a fair disposition on the merits of the dispute.
To get relief, the defendant needs to show: “(1) a meritorious case; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once the fraud [or mistake] had been discovered.” 


The first prong isn’t as big of a deal as it sounds. “Meritorious” doesn’t mean you need to prove you will win. Just that you have a case that’s worth deciding on the merits. And, affording the trial court the deference it gets on these kinds of discretionary decisions, Insurer made that showing. On these facts, the second and third factors aren’t too hard either. Insurer didn’t know it had policies until after the judgments were entered. We are, after all, talking about coverage for events that happened 44-plus years ago. For some of the litigation, they didn’t even have notice that cases were filed. And once Insurer figured out there was a potential for coverage, it promptly moved to intervene and vacate the defaults.


Affirmed.

Wednesday, December 12, 2018

Serial Discovery Abuser Gets Terminating Sanctions. And they Stick, for Once!

J.W. v. Watchtower Bible & Tract Society of N.Y., No. E066555 (D4d2 Dec. 10, 2018)

A Girl sued the Watchtower Societythe governing body of the Jehovah’s Witnessesfor its failure to prevent her from being molested by an elder of the Church. In discovery, she requested a copy of all correspondence received by the Church after it sent a letter to its congregations asking them to explain any occasions where persons known to have molested children were promoted to positions of authority with the Church. The Church claimed the documents were subject to the clergy-penitent privilege and that it would be unduly burdensome to search for them. The trial court disagreed and granted Girl’s motion to compel.

Friday, December 7, 2018

Shady, Shady, the Sequel

Lofton v. Wells Fargo Home Mortgage, No. A146282 (D1d3 Sept. 28, 2018)

Four years ago, the First District upheld a preliminary injunction against a Law Firm, preventing it from using a shady settlement tactic to obtain fees from a class action settlement outside the judicially supervised case by bringing, and allegedly settling a parallel individual case in a different jurisdiction. On remand, and after further development of the record on just how deceptive the Firm’s tactics were, the trial court found that the $6 million obtained from the individual settlement should have rightly been part of the common fund settlement to benefit the class. And on top of that, Law Firm wasn’t entitled to receive any fees and it had to pay the class back for incentive awards paid to three individual clients. The Court of Appeal affirms. And then it orders its opinion to be sent to the state bar.


Affirmed.

Thursday, December 6, 2018

Sanctions Switcharoo in San Diego

CPF Vaseo Assocs., LLC v. Gray, No. D072909 (D4d1 Dec. 6, 2018)

There was a period of time where there was a spit of authority about whether Code of Civil Procedure § 128.5 required a party moving for sanctions to pre-serve the motion on the alleged offender to provide an opportunity to withdraw the offensive pleading. (This is known as the safe harbor rule.) But the Court here settles the issue.

Section 128.5 has bounced in and out of the code a few times over the years. It expired in the '90s when a different sanctions statute§ 128.7was enacted. But then it was brought back to life in 2014. Back in 2016, the 4/1 held that the safe harbor rule didn’t apply to § 128.5. The Legislature subsequently amended the statute to make clear that it did. But then at the beginning of 2018, the 2/7in post-amendment case applying pre-amendment law—held that the safe harbor applied all along. And now—in yet another case applying pre-amendment law—the 4/1 sees the error of its ways, agreeing with the 2/7 that the safe harbor rule always applied to motions under § 128.5.

Reversed.

Taking an Appeal of Third Party Arbitration Discovery

Uber Techs., LLC v. Google, Inc., No. A153653 (D1d3 Oct. 10, 2018)

The California Arbitration Act permits arbitrators and arbitral bodies to issue subpoenas. See Code Civ. Proc. § 1282.6. But a non-party that gets a subpoena issued out of an arbitration has never consented to having a private party adjudicate its rights. So, as the California Supreme Court has made clear, the nonparty can take the matter to a superior court and file a special proceeding for a de novo review of any order compelling discovery. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 44 Cal. 4th 528 (2008). Which is what happened here. 

Wednesday, December 5, 2018

Service by Laguna News-Post Isn't Gonna Cut It

Calvert v. al Binali, No. B282984 (D2d8 Dec. 4, 2018)

A Plastic Surgeon thinks a former Patient anonymously defamed him on the Internet. He’s really not sure. But that doesn't stop him from suing Patient for defamation. He has trouble serving process, however. Surgeon makes a number of attempts to serve Patient at some address in the OC that she’s loosely affiliated with. Someone there mentions that Patient is actually Canadian. Surgeon, however, makes no effort to serve in Canada.

In any event, sooner or later, the trial court decides Surgeon’s done enough to qualify for service by publication in the OC Register. The notices, however, get published in the Laguna News-Post, which is some local outfit owned by the Register, but with 1 percent of the circulation. Surgeon ultimately gets $2 million default judgment and starts lurking around the Great White North to enforce it.

When Patient gets word of that, she moves to vacate the judgment under Code of Civil Procedure § 473(d) as facially void. A judgment can be vacated under § 473(d) when a jurisdictional defect is apparent from the face of the record. In the case of a default judgment, the record includes the judgment itself, as well as the service proof docs, which are necessary to show that the trial court had personal jurisdiction over the defaulted defendant. 

Problem here is that the Courts order for publication in the OC Register wasn’t followed. Service by publication is not favored, so any failure to strictly comply with the rules and the Court’s order renders service, and thus personal jurisdiction, inadequate. Which is the case here. 

Reversed.

Monday, December 3, 2018

Intervene, Object, Opt-Out

Edwards v. Heartland Payment Sys., Inc., No. B284000 (D2d8 Nov. 30, 2018)

There are three overlapping wage and hour class actions against the same employer: Case #1, Case #2, and Case #3. Cases ## 1 and 2 were filed on the same day. Case #3 was filed two months later. The complaints get amended a bunch of times. Case #1 settles at a mediation where counsel for all three cases are present. Cases ##2 and 3 don’t settle. At the time of the settlement, Case #1 lacked a few of the claims that were alleged in Cases ##2 and 3. Post settlement, the Case #1 complaint was amended to add in these claims. 

Plaintiffs in Case #3 moved to intervene in Case #1. A few days later, Case #1 Plaintiffs moved for preliminary approval. The court denied intervention, finding that any of the Case #3 plaintiffs who didn’t like the settlement could adequately protect their rights by objecting or opting out. Case #3 Plaintiffs took an appeal. While the appeal was pending, Case #3 plaintiffs briefed a number of issues related to the adequacy of the settlement in Case #1. Eventually, the overall settlement fund went up by $115k. Then the Court of Appeal entered a stay.

So the question is whether the trial court erred in finding that a right to object or opt out is a good as a full blown intervention to protect the rights of absent class members. The Court holds it is. Plaintiff’s main point is that, under the Supreme Court’s recent decision in Hernandez v. Restoration Hardware, Inc., 4 Cal. 5th 260 (2018) a class member needs to intervene to preserve a right to appeal the approval of a settlement. But Hernandez gave a second option—an objecting class member’s right to appeal can be preserved by filing a motion to vacate the final judgment under Code of Civil Procedure § 663, which permits a motion by any “party aggrieved.” With that post-judgment option available, the class members could protect their interests, including their right to appeal, by opting out or objecting.

Affirmed.

Friday, November 30, 2018

The Macaluso/Fox Johns Paradox: Five Years Later

Fin. Holding Co., LLC v. The Am. Inst. of Certified Tax Coaches, No. D072910 (D4d1 Nov. 29, 2018).

Creditor sought judgment collections discovery against Debtor’s Employer, asking for a broad swathe of business, tax, and bank records. When Employer balked, Creditor moved to compel and the trial court granted its motion. Employer appeals. 


Threshold question is whether the order is appealable as an order entered after an appealable judgment under Code of Civil Procedure § 904.1(a)(2). Cases are not consistent about whether post-judgment discovery orders against third parties are appealable under that statute. Indeed, as I pointed out way back in 2013, and again last year, this very court issued contradictory opinions on the issue within six days of each other. 


After reviewing the statutory text and extensive case law with its various splits of authority, the Court here sides in favor of appealability. The order against Employer was a final order as to the Employer—all that was left was for Employer to comply or refuse—which fits in within the Supreme Court’s general four-element test for appealability under § 904.1(a)(2).


On the merits, judgment collections discovery against third parties is addressed by § 708.120. It is conditioned on a showing that the third party has possession or control of property in which the debtor has an interest or owes a debt to the debtor worth more than $250. Discovery is limited to information about that property or debt. The statute does not permit “any and all documents” discovery like Creditor served on employer here. Moreover, contrary to Creditor’s arguments, various other statutes in the Code of Civil Procedure do not broaden third party collections discovery beyond what is permitted by § 708.120. 


Reversed.

Thursday, November 29, 2018

Hollywood Accounting Runs Out the Clock

Warner Bros. Entm’t Inc. v. Superior Court, No. B289109 (D2d8 Nov. 20, 2018)

Actors and other talent sometimes get an interest in the “profits” to movies and TV shows. Unless you've got huge juice, however, “profit” does not mean actual profit, like how the IRS or Scrooge McDuck would calculate it. “Profit,” instead, is contractually a defined term that permits a studio to deduct all sorts of “costs.” Under this Hollywood accounting, projects that made large amounts of money wind up being in the red forever, at least so far as the accounting for the participation interests of the talent go.

Monday, November 26, 2018

K and Stuff Testimony Flummoxes Hearsay Ruling

Hart v. Keenan Props., Inc., No. A152692 (D1d5 Nov. 19, 2018)

The trial in this asbestos case presented a classic product ID question: Was the Defendant the distributor of asbestos-containing pipe product that Plaintiff used on jobs where he worked as a pipe layer? The evidence was thin. Plaintiff knew the pipes were asbestos cement pipes made by a particular manufacturer. But he didn’t know the distributor. And there were no records from the time to show that Defendant was, in fact, the distributor.

Saturday, November 17, 2018

Res Judicata in Ronhert Park

Atwell v. City of Rohnert Park, No. A151896 (D1d1 Sept. 26, 2018)

The Sierra Club sued to stop the construction of a Wal-Mart in Rohnert Park because of something CEQA and alleged violations of zoning laws. A trial court granted a writ on the CEQA issue. But the zoning claim never really got litigated. 


Wednesday, November 14, 2018

FYI: A Pot-Dealing Child Sex Offender Is Not an Ideal Class Rep.

Payton v. CSI Elec. Contractors, Inc., No. B284065 (D2d2 Sept. 28, 2018)

The trial court in this wage-and-hour case denied class cert because: (1) individual questions predominated regarding whether class members actually received the rest breaks at issues; and (2) Plaintiff’s trial plan was insufficient; (2) Plaintiff, who had a non-class wrongful discharge claim and whose criminal record includes a sex offense against a minor, wasn’t an adequate class rep. The court further declined to let Plaintiff find a new rep because the case had already been pending for a long time and class cert was likely not going to happen in any event.


Saturday, November 10, 2018

Fees. Tribes. Arbitration.

Findleton v. Coyote Valley Band of Pomo Indians, No. A145444 (D1d2 as modified, Sept. 26, 2018).

In a prior appeal in this case, the First District held that an Indian tribe had waived its sovereign immunity such that it could be compelled to arbitrate. A second appeal reversed a grant of attorneys’ fees to the Tribe in connection with the denied motion to compel, because, in light of the first appeal, the Tribe was no longer the prevailing party. On remand, the case was compelled to arbitration and fees awarded to the Plaintiff.


Wednesday, November 7, 2018

SLAPP Away in Limited Civil

1150 Laurel Owners Assoc. Inc. v. Superior Court, No. B288091 (D2d3 Nov. 7, 2018)

Defendant in this limited civil case alleging a breach of a settlement agreement responded to the complaint with an anti-SLAPP motion. The trial court denied the motion, finding that an anti-SLAPP motion could not be brought in limited civil. The Appellate Division granted a writ reversing that decision. And now the Court of Appeal grants a writ reversing the App. Div.

Thursday, November 1, 2018

You Need Some Other Court to Abstain to.

Findleton v. Coyote Valley Band of Pomo Indians, No. A145444 (D1d2 as modified, Sept. 26, 2018).

In a prior appeal in this case, the First District held that an Indian tribe had waived its sovereign immunity such that it could be compelled to arbitrate. A second appeal reversed a grant of attorneys’ fees to the Tribe in connection with the denied motion to compel, because, in light of the first appeal, the Tribe was no longer the prevailing party. On remand, the case was compelled to arbitration and fees awarded to the Plaintiff.

Monday, October 29, 2018

"Not Formally Citing" Uncitable Cases

Hart v. Clear Recon Corp., No. B283221 (D2d8 Sept. 18, 2018)

A provision in a mortgage deed of trust lets the Lender take certain actions to protect its security interest in the property. They include, among other things, going to court. The provision then says that the cost of those actions can be added to the loan as principal and are subject to interest at the rate in the note. 

Wednesday, October 24, 2018

The State Has No Home Court

Gamestop v. Superior Court, No. E068701 (D4d2 Aug. 22, 2018)

The Riverside and Shasta County DAs sued a secondhand video game Store in Riverside Superior Court for violating the Unfair Competition Law. They claim that the Store’s conduct was “unlawful” under the UCL because the Store violated the Secondhand Dealers’ Law, which regulates pawn shops and other resellers of personal property to prevent them from being used to fence stolen goods. 


Store moved to change venue under Code of Civil Procedure § 394(a), which permits a foreign corporate defendant to transfer an action to a neutral county when sued by a city, county, or local agency. But according to the Court of Appeal, the problem with that argument is that the UCL permits a DA to bring a UCL action on behalf of “the People of the State of California.” Thus, even if the DA’s authority is limited to prosecuting UCL violations in his or her home county—a question that is currently pending before the California Supreme Court—the State of California is nonetheless the plaintiff, so § 394(a) doesn’t facially apply.


Writ denied.

Tuesday, October 23, 2018

Not a Well-Advised Strategy

Takhar v. People ex rel. Feather River AQMD, No. C082021 (D3 Sept. 11, 2018)

If you respond to an enforcement action brought by your regulator by bringing a counterclaim under Code of Civil Procedure § 526a, alleging that the action constitutes waste, you’re going to have an anti-SLAPP issue. You are literally suing someone for investigating and suing you. That’s protected activity. And so long as the enforcement is colorable—it’s not, for instance, under an obviously unenforceable statute—there’s no waste, so you can’t succeed either. Which is what happened here. 

Reversed.

Monday, October 22, 2018

Informed Consent Is Cruicial to a Conflicts Waiver

Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., No. S232946 (Cal. Aug. 30, 2018)

Back in 2016, the Court of Appeal vacated an arbitration award in an attorney fee arbitration, holding that a law firm’s retainer agreement (and the arbitration clause within it) was completely void under Rule of Professional Conduct 3-310(C)(3) due to an undisclosed conflict of interest. At the time the client engaged the firm, the firm was adverse to the client in an unrelated matter. Thus, notwithstanding the agreements general forward conflicts waiver, there was no informed consent because the actual conflict was not specifically disclosed. And that meant the law firm couldn’t get paid anything and had to disgorge what it had been paid to date. The Supreme Court granted review.

Friday, October 19, 2018

More a Question of Who than How Much...

Sandoval v. Qualcomm, Inc., No. D070431 (D4d1 Oct. 19, 2018)

This is an appeal and cross appeal of post-judgment motions in a multi-defendant personal injury case. The trial court denied a JNOV, but grated a new trial on the ground that the jury messed up comparative fault allocation. In granting the new trial, it relied on Code of Civil Procedure § 657(5), which permits a new trial based on excessive or inadequate damages.

The JNOV is as easy affirm. There was substantial evidence, enough to get to a jury, which is all a JNOV addresses. 

On the new trial, right result, wrong provision. While comparative fault deals with damages in a sense, § 657(5) is addressed to the overall damages award, not its allocation between defendants. Regardless, the code nonetheless permitted the trial court to grant a new trial on comparative fault under § 657(6), which addresses the insufficiency of the evidence to justify a verdict. And since there was substantial evidence to support the trial court's decision in its capacity as an independent evaluator of the facts, that would be upheld.

Affirmed.

Tolling Accrues to the Diligent

Martinez v. Landry’s Restaurants, No. B278513 (D2d7 Aug. 28, 2018)

This wage and hour class action, filed in 2007, got dismissed under the five-year rule in Code of Civil Procedure § 583.310. Plaintiffs don’t argue that five years haven’t passed. But theres potential tolling for four different periods. 

Thursday, October 18, 2018

Blown Demurrer Opp. Counts as a "Dismissal" for Mandatory § 473(b) Relief

Pagnini v. Union Bank, N.A., No. A151390 (D1d5 Oct. 17, 2018)

Plaintiff’s attorney tried to file an amended complaint as a response to a demurrer. But the attorney didn’t know that Code of Civil Procedure § 472—the statute that permits an amendment as a response to a demurrer—had recently been amended to change the timing. Although the prior version let you moot a demurrer by filing an amendment before the demurrer hearing, the current version required the amended complaint to be filed before the opposition is due. This resulted in the clerk rejecting the amended pleading. The trial court ultimately granted the demurrer as unopposed and entered judgment for Defendant.

Several months later, Plaintiff filed a motion for mandatory relief under § 473(b). His motion was accompanied by a declaration from his attorney, attesting to the mistake that led to the dismissal. But the trial court denied the motion nonetheless. 

That was error. The mandatory relief provision in § 473(b) applies to both defaults and dismissals that are caused by the neglect (even the inexcusable neglect) of a party’s attorneys. At some point, the Legislature added dismissals to provide parity between mistakes by both plaintiffs and defense lawyers. Dismissals include failures to respond to “dismissal motions.” And while there does not appear to be a prior case that says it, the court finds that a failure to respond to a demurrer to the whole complaint readily fits into that category, given that if granted without leave to amend, a demurrer lead to a dismissal under § 581(f)(1). Which is what happened here after the attorney whiffed on the deadline.

Reversed.

Tuesday, October 16, 2018

Harley Dealer Can't Ride Free (With or Without Being Hassled by the Man) on Bank's Arb Clause

Fuentes v. TMCSF, Inc., No. E066242 (Aug. 23, 2018)

Plaintiff bought a Harley. He brought a CLRA/UCL/FAL class action against the Dealer for various misrepresentations in its sales practices. His sales contract does not have an arb clause. But his finance agreement does. Although Plaintiff didn’t sue the bank, Dealer tries to enforce the arbitration rights in that agreement anyway. But none of the theories that permit a non-party to compel arbitration apply. The Court here goes through incorporation, agency, third party beneficiary, and estoppel. But there’s also alter ego, which apparently is not an issue here. So the trial court correctly denied Dealer’s motion to compel arbitration.

Affirmed.

Accord The Wild Angels.

A Partial Final Arb Award Is Not Really Final

Maplebear v. Busick, No. A151677 (D1d2 Aug. 21, 2018)

California state courts generally only have jurisdiction to vacate or confirm arbitration awards when they are final. Under Code of Civil Procedure § 1283.4, that means the award “include[s] a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” It’s basically the equivalent of the one final judgment rule for taking an appeal under § 904.1.

Monday, October 15, 2018

§ 47(b) Displaced by Retaliatory Eviction Statute

Winslett v. 1181 27th Ave., LLC, No. A146932 (D1d4 Aug. 15, 2018)

Tenant sued Landlord for, among other things, retaliation, retaliatory eviction, and for violating an Oakland eviction-control ordinance. Landlord responded with an anti-SLAPP motion, arguing that the claims arise from the service of a 3-day notice to quit and filing of an unlawful detainer case and that the litigation privilege bars liability on the claims. Trial court granted the motion.

Friday, October 12, 2018

Tall Trees + Unlicensed Gardener = Homeower Liability

Jones v. Sorenson, No. C084870 (D3 Aug. 2, 2018)

As a homeowner, this case scares the crap out of me. 

Homeowner hired a gardener to trim some trees. Gardener then hired plaintiff as a helper. Plaintiff fell off a ladder and got hurt. Plaintiff sued homeowner, on the theory that gardener’s negligence caused her injury, and that homeowner was on the hook under respondeat superior. 

Generally, an injured employee’s only recourse is to workers’ compensation. But if the employer doesn’t have workers’ comp coverage, the employee can sue in tort for negligence. And where a contractor needs to be licensed to perform the work entailed, a person who hires an unlicensed contractor can be subject to liability as a co-employer. 

So the question is whether, in this case, a contractor’s license was required. Under the applicable statute, anyone who trims trees is a contractor. But there are exceptions for: (a) someone “performing the activities of a nurseryperson,” and (b) for “gardeners” engaged in “incidental pruning” of trees under 15 feet tall. The gardener exception doesn’t apply, because the tree was more than 15 feet tall. And the nurseryperson exception doesn’t apply, because (as the Court reads the statutory scheme) that applies to a licensed nursery operator engaged in cultivating plants. The gardener here doesn’t meet that description. 

So the trial court erred in granting summary judgment to the homeowner. 

Reversed.

Thursday, October 11, 2018

Oh Yeah, Those Other Four Cases ....

 
Potential arbitrators are required to make disclosures of potential conflicts. Many of the arbitration service providers accomplish this through a questionnaire where the arbitrator walks through a series of questions. In this case, the arbitrator’s disclosure consisted of 28 questions over 11 pages. To question 28, which asked if the arbitrator would entertain any other offers of employment from the parties while the case is pending, the arbitrator answered, “yes,” that he or she* would consider offers to serve as an arbitrator in other matters for the parties or their counsel. Unfortunately, the eleventh page of the disclosures was missing.

Wednesday, October 10, 2018

Livermore Lab Retirees Class Can Proceed Against UC on Liability Issues

Moen v. Regents of the Univ. of Cal., No. A153386 (D1d5 Aug 1, 2018)

A class action against the UC brought by some Retirees at the Lawrence Livermore lab. Retirees claim that the UC system either implicitly or explicitly promised them health insurance and that the UC’s failure to honor those promises after the lab was privatized is an unconstitutional impairment of contract. The case has been pending for eight years. A class was ultimately certified, and a part of the case about the UC system’s authority to enter the alleged contracts was tried. Retirees won.


But the UC then moved to decertify the class, arguing that the rest of the case—about whether promises were actually made and relied upon—was too individualized to be addressed class-wide. The trial court agreed and decertified the class. Retirees appeal.


The Court of Appeal reverses, in part. Contract formation is typically an individualized question. But Retirees’ theory is that the UC had a uniform practice of offering the benefits and that the benefits were implicitly accepted by the retirees when they came and/or continued to work for the lab. Under the circumstances, there was enough commonality among the members of the class for the contract formation issues to be tried class-wide. Similarly, the mostly legal issue of whether contracts, if formed, were impaired, could be addressed by a class because it did not require specific proof of economic injury. 


On the other hand, damages could not be decided on a class-wide basis. That would require an assessment of the value of the allegedly promised policy versus the value of what each Retiree ultimately received, which could have a great deal of variety of factors, including each Retiree’s actual use of the heath care benefits provided.


Reversed in part.

Tuesday, October 9, 2018

Bees!!!!!

Staats v. Vintner’s Golf Club, LLC, No. A147928 (D1d1 Aug. 1, 2018)

Not procedure, but the Court here holds that a golf course has a duty to take reasonable measures protect its patrons from swarms of yellow jackets. Good to know.

Monday, October 8, 2018

Vicarious Conflicts

Fluidmaster, Inc. v. Fireman’s Fund Ins. Co., No. G055469 (D4d3 Jul. 24, 2018)
 

Firm’s OC office is defending Insurance Carrier in some coverage litigation. Attorney A worked on the other side of case as a manager for Plaintiff’s e-discovery vendor. Attorney A subsequently got hired by Firm’s LA office. She was asked about conflicts, and screened from the coverage dispute. Firm informed Plaintiff of the hiring and the screen.

Plaintiff successfully moved to DQ Firm. But while appeal was pending, A left Firm. And (based on supplemental briefing) there’s no evidence that A actually shared any confidential information she obtained in her prior employment.

The court assumes that acting in the capacity as an attorney for a client’s e-discovery vendor is enough to potentially create a conflict. So the question is whether the screen was effective, particularly given A’s departure from the firm before the appeal was decided.

Vicarious disqualification generally isn’t the rule in California. But even setting that aside, a prior case—Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776 (2010)—specifically addresses the situation where a conflicted attorney quickly leaves. The pertinent question is: Did she spill the beans while there? And in connection with that, the court needs to consider the efficacy of any screening put in place. And that requires an assessment of seven different factors, which are set out in Kirk.


Since none of that analysis was done by the trial court, the case gets sent back for it to be done in the first instance.

Reversed and remanded.

Friday, September 28, 2018

Post # 900: Coincidence, or Hive Mind?

Martane v. Heavenly Valley Ltd. P’Ship, No. C076998 (D3 Sept. 26, 2018) 

Sometimes it fees like there’s a kind of Jungian collective unconscious in published Court of Appeal decisions. A random, obscure issue will go unnoticed for years. And then multiple opinions will address it, often close in time, and frequently without acknowledging each other.


Apropos of my last post, this opinion deals with the general assumption or risk doctrine in connection with skiing accidents. This time at Heavenly instead of Mammoth. Nothing of procedural interest here. It’s just a little weird how that happens.

Wednesday, September 26, 2018

Alpine Esoterica

Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, No. C082306 (D3 Jul. 18, 2018)

Plaintiff in this case suffered some pretty gruesome injuries when she skied into a snow-grooming tiller being pulled by a snowcat. But the trial court granted summary judgment on a primary assumption of risk theory, reasoning that hitting a grooming snowcat is an inherent risk of skiing, and because the evidence didn’t support gross negligence. In opposition to the latter point, plaintiff proffered the declarations of several purported expert witnesses, who asserted that driving a snowcat with a grooming tiller on an open slope was an extreme departure from the standard of care.

Expert testimony has limited utility on the assumption of risk doctrine. Most of the issues—whether the activity is an active sport, its inherent risks, and whether defendant has acted to increase the risks beyond the inherent ones
are treated as questions of law. That said, courts have discretion to receive expert testimony to inform the factual basis for those legal decisions, particularly when the activity at issue and its risks are outside the realm of ordinary experience. 

Problem here, though, is that the experts’ declarations weren’t useful to that exercise. While opining that the standard of care was grossly breached in the context of the facts of the case, they did not actually set out what the industry standards were so that the court could make a comparison. As the Court of Appeal explains: “The problem with plaintiffs’ argument is that the experts’ declarations did not inform the court on the customary practices of the esoteric activity of snowcat driving.” (quotations omitted).


Affirmed.

Friday, September 21, 2018

"I Don't Believe You" Is Not Evidence

Ayon v. Esquire Deposition Solutions, LLC, No. G054578 (D4d3 Sept. 21, 2018)

Defendants employee ran over plaintiff while talking on the phone with another employee. Whether defendant can be liable under a respondeat superior theory appears to turn on the contents of the conversation. At deposition, both employees say they were friends and talking about personal, not work stuff. Plaintiff doesn’t believe them and suggests they had motive to lie.

But that isn’t enough to avoid summary judgment. Disbelief in the truth of a statement is not evidence that the opposite it true. Indeed, Code of Civil Procedure § 437c(e) specifically says summary judgment can’t be denied on credibility grounds. 

There are two exceptions that give a court discretion to deny SJ based on credibility questions. First, when the only evidence is a declaration from an individual who is a the sole witness to a fact. And second, when the issue is an individual’s state of mind and the only evidence is the individual’s attestation thereof. Neither of those apply here. Both employees were deposed. And state of mind isn’t the issue. So absent some affirmative evidence to contradict the employees’ testimony—there was none—there is no dispute of material fact. 

Affirmed.


You Sue Me. I Sue You.

Moss Bros. Toy, Inc. v. Ruiz, No. E057240 (D4d2 Sept. 20, 2018)

An employer sued one of its former employees for bringing two employment related lawsuits instead of resolving the disputes in arbitration. If suing someone for suing you sounds like a SLAPP, thats because it is. And since the employer can’t even prove up the existence of an arb agreement, it also can’t prevail. 
 
(Plaintiff could have also pointed out—per last-years Sargon decisionthat damages are not a remedy for breach of a contract to arbitrate. Just specific performance.)
 
Affirmed.


Thursday, September 20, 2018

A Day Late and a Memo of Points of Authorities Short

Weinstein v. Blumberg, No. B282267 (D2d1 Jul. 17, 2018)

Unlike in federal court and many other jurisdictions, the Civil Discovery Act sets strict time limits for parties to move to compel further discovery responses, although they can be extended by stipulation. For depos, it’s 60 days from the completion of the record. Code Civ. Proc. § 2025.480(b). When there
s an actual deposition, that starts on the day the depo is taken.

The parties here—the defendant and a third party it subpoenaed—agreed to extend the due date to a date certain. On the stipulated date, Defendant filed a notice of motion and motion to compel along with a declaration that it had met and conferred. But it didn
t file a brief or supporting papers. It said the remaining papers would be “filed and served as provided in” Code of Civil Procedure § 1005(b), i.e. 16 court days before the hearing. Defendant proceeded to serve all the other docs a day late. So third party, now appellant, argues that: (1) the movant blew the 60-day limit because it failed to serve all the papers on time; and (2) it also blew the 16-court day limit in § 1005(b). 

Section 2025.480 says a motion needs to be “made” by the 60-day deadline. Cases have read that deadline to be quasi-jurisdictional, in the sense that the Court doesn’t have the authority to grant a motion filed afterwards. And while § 1005.5 says a motion is “made” when the notice of motion is filed and served, § 1010 says that the notice must be accompanied by the supporting papers. 


So reading it all together, without service of all the ancillary docs required under § 1010, the motion wasn’t “made” on time and therefore was untimely under § 2025.480.

 Reversed.

Tuesday, September 18, 2018

Defamation? In Family Court?

L.G. v. M.B., No. B284742 (D2d2 Jul. 13, 2018)

Former Nanny is suing Wife for allegedly defamatory statements Wife made about Nanny in a declaration Wife filed in support of a domestic violence restraining order her divorce case. I’m not going to get into the seamy details—there’s a reason why I try to avoid family law—but a hunch and twenty seconds of the google confirmed my suspicion that this is a b-level celebrityish thing.


Monday, September 17, 2018

Wednesday, September 12, 2018

The Pure vs. the Expedient: Dashes and Word Counts

One thing that has always annoyed me about The Bluebook is that it permits numbers in a page range to be separated by either an en-dash or a hyphen. See The Bluebook: A Uniform System of Citation R. 3.2(a) at 72 (Columbia Law Review Assn, et al. eds., 20th ed. 2015). This has persisted over several editions. If the purpose of the system is uniformity, why give people that choice? For me, the optionality in the rule means that when a group of people work on a brief, I need to remember to make and ruthlessly enforce the - vs. – call early, or someone will have to go back at the end and fix any inconsistencies between authors. 

FWIW, I’ve always been an en-dash kind of person. That’s what the Chicago Manual of Style advises. Unlike The Bluebook, the Chicago Manual is written by professional writers and editors who can make up their minds. 

But after today, I’m not sure that will hold, at least for word-count briefs. It seems that the word counter in Microsoft Word counts two numbers separated by a hyphen as one word, but two numbers separated by a en-dash as two. In a 14,000 word limit brief, see Cal. R. Ct. 8.204(c)(1), with lots of record and case citations, that can easily cost 100 words or more. So if left with a choice between the tedious task of killing 100 words of text in an already well-edited brief and running a find/replace to switch n-dashes to hyphens, the latter could prove pretty tempting.

Paging Dr. F....

Belfiore-Braman v. Rotenberg, No. D072015 (D4d1 Jul. 13, 2018)

The Doctors keep a-coming.

Plaintiff is a patient. Defendant, Dr. D., is a doctor who allegedly messed up her sciatic nerve during a hip replacement. Plaintiff has a medical expert, Dr. M. And primary treating physician, Dr. O. Dr. D. has an expert, Dr. S. Dr. O referred Plaintiff to Dr. F., an MRI study guy, who never does a physical exam. He just reads film. Plaintiff subsequently switched primaries to Dr. P. All the docs are on the witness list, but only Dr. M. is a designated as an expert for Plaintiff.


Tuesday, September 11, 2018

Doctor’s Doctor’s Doctor Doctors Doctor’s Doctor’s Doctored Doctor’s Doctor.

Padda v. Superior Court, No. E070522 (D4d2 Jul. 6, 2018)
 

This short opinion granting a writ requiring a trial continuance is a little hard to follow. Mostly because everyone’s a doctor. It’s an employment dispute between two doctors and their former practice, which was run by some other doctors. It involves the parties’ gastroenterology experts (doctors) one of whom fell ill right between trial, and whose own doctor advised that he sit it out awhile.

Two weeks before trial, and before he was deposed, Plaintiffs’ gastroenterology expert was diagnosed with a hemorrhagic cyst in his kidney. The expert’s doctors advised him to take it easy, including not testifying at trial. Plaintiffs moved for a continuance under Code of Civil Procedure § 595.4, which permits a continuance when a material witness isn’t available. The moving party needs to file a declaration summarizing the testimony, and the opposing party has a chance to stipulate to admit it, which precludes a continuance. The non-moving party here wouldn’t stipulate, so the statute was satisfied.

So the Court of Appeal holds that the trial court abused its discretion in not allowing the continuance. The court’s alternative solution—to immediately start trial but then delay it while the doctor could find a doctor whose doctor was ok with the doctor being the doctor’s doctor—didn’t make much sense. Indeed, even though the nonmoving party didn’t want the continuance, it didn’t support that plan.

Writ granted.

Friday, September 7, 2018

He Who Represents Everyone, Represents No One.

Bridgepoint Constr. Svcs., Inc. v. Newton, No. B283239 (D2d6 Sept. 4, 2018)

This is some kind of a construction finance dispute between two companies and their various principals. Its all one big fight over basically the same $2 million pot of money. At first, Attorney represented the whole plaintiff side. But then some inter-plaintiff adversity came up and his representation dwindled to a single individual. But Attorney still represents the Company in a related case in Arizona. 

Company moves to DQ Attorney, arguing: (a) theres current client conflicts because Attorney both represents the Company in Arizona and is adverse to the Company in this related matter; and (b) there’s past client conflicts because, before Attorney withdrew to his individual client, his group representation made him privy to some of the Companys confidential information regarding the dispute. Both theories are correct, and there are, apparently, no waivers in any of the retainer agreements. Which means that Attorney now doesn’t represent anyone at all.

Affirmed.

Tuesday, September 4, 2018

A Flawed Simulacarum of a Real Estate Case

Mack v. All Cntys. Trustee Serv., Inc., No. B280650 (D2d1 Aug. 30, 2018). 

This is one of litigations that starts with a real estate dispute, and then metastasizes into a seemingly endless series of suits about the dispute, and then suits about the suits about the dispute, and so on. At some point, Plaintiff was declared vexatious litigant. 

This current iteration appears to be Plaintiffs effort to vacate judgments in earlier cases that resulted in her loss of title to the property. Plaintiff lost that in the trial court. On appeal, after vacillating several times between being represented (which avoids a vexatious litigant dismissal) and being pro per, Plaintiff finally manages to hang on to an attorney long enough to get to the merits. Or kind of. Because, represented or not, the record Plaintiff submitted on appeal is so deficient that the court can barely follow what’s going on, much less find a basis to hold that the earlier judgment was void. 

Affirmed.

Thursday, August 30, 2018

Michael Jackson Is Not Michael Jackson

Serova v. Sony Music Entmt, No. B280526 (D2d2 Aug. 28, 2018)

About a year and a half after Michael Jackson died, his Label released an album called Michael, which purported to contain his final recordings. There’s been some controversy about the record. In particular, there are rumors that Jackson didn’t sing lead on all or some of the tracks—a soundalike was used instead. Plaintiffs here brought a class action against the Label and Jackson’s estate under the UCL, FAL, and CLRA. Key to the issue on appeal is that they asserted that album’s cover and some promotion materials were misleading because they suggested that Jackson was the lead singer on everything.


Thursday, August 23, 2018

Because CEQA!

Citizens Coalition Los Angeles v. City of L.A., No. B283480 (D2d2 Aug. 23, 2018)

I don't really understand anything in this opinion. But the Court of Appeal turned Sad Target on Western and Sunset's frown upside down today, in an appeal about something something EIR. Who knows if that ends it. Might be ten more rounds to go.

Reversed.

Tuesday, August 21, 2018

The Condition/Covenant Conundrum

Colaco v. Cavotec SA, No. G052619 (D4d3 Aug. 10, 2018)

This is a complicated breach of contract case arising from a sale of corporate assets. It addresses an issue of contract law that, while not procedural, is worth at least a mention.

Monday, August 20, 2018

Inexcusable Neglect Can Still Merit a Continuance

Levingston v. Kaiser Foundation Health Plan, Inc., No. E066271 (D4d2 Aug 17, 2018)

This is some kind of whistleblower case against Kaiser Permanente. Kaiser moved for summary judgment. Plaintiff opposed. Her opposition included some inadvertently disclosed privileged document that apparently belonged to Kaiser. That got her counsel DQ’ed and her opposition struck. The court ordered former counsel not to discuss the document and continued the SJ hearing for six months to let plaintiff get new counsel.

Saturday, August 18, 2018

Tuesday, August 14, 2018

Approved as to Form and Content

Monster Energy Co. v. Schechter, No. E066267 (D4d2 Aug. 13, 2108)

A settlement agreement at issue in this case obliged "the parties and their attorneys” to keep the settlement confidential. Plaintiff’s attorney signed the agreement, but only “approved as to form and content.” He then proceeded to tell a shady media outlet (which might have been controlled by his firm) about the settlement. Defendant sued the attorney. But the Court of Appeal held that the agreement didn’t actually bind the attorney. The client couldn't bind the attorney, just by adding them into the agreement. And the attorney's signing under "approved as to form and content” language was not an assent by the attorney to be bound. Which means a SLAPP motion prevailed because the claim couldn't succeed.

The lesson here is clear: If you are facing an Avenatti, he needs to actually agree to be a party to the confi, or else your only remedy is going to be against Stormy.

Reversed.

Monday, August 13, 2018

Lost in Translation

Juarez v. Wash Depot Holdings, Inc., No. B282667 (D2d6 Jul. 3, 2018)

As we hopefully all know by now, claims under the Labor Code Private Attorney General Act aren’t arbitrable. Recognizing that fact, a Car Wash’s arb agreement waived the right to bring a PAGA claim, but provided that the PAGA waiver, if unenforceable, would be severable from the rest of the agreement to arbitrate. Or at least that
s what the the English version said

Friday, August 10, 2018

Not a Prior Agreement

Williams v. Las Posas, No. B282513 (D2d6 Jun. 27, 2018)

Oh good. Another nursing home arbitration case. 


The Patient—who suffered a traumatic brain injury in a bike accident—had signed both an admittance agreement and a separate arb agreement. The arb agreement contained a broad clause that required any disputes arising from or related to the admittance agreement or any care provided by the nursing home go to arbitration. 

Monday, August 6, 2018

Sanctions Never Seem to Stick, Vol. 2,482 ...

Moofly Prods., LLC v. Favila, No. B282084 (D2d1 Jun 22, 2018)

Code of Civil Procedure § 1008(d) says that a party can get sanctions for an improper motion for reconsideration “as allowed by [§] 128.7.” Section 128.7(c)(2), in turn, says a court can enter sanctions, but only after it issues an order to show cause that describes the conduct and gives the offending party twenty-one days’ notice to show cause or to withdraw the offending filing. The twenty-one day window to withdraw the filing is referred to as a “safe harbor.” So the question here is whether § 1008(d)’s reverence to § 128.7 means to incorporate just the standard for deciding when something is frivolous or whether it incorporates the whole shebang of § 128.7’s procedures, including the safe harbor. 


The Court finds that § 1008 takes in §128.7 whole hog. Relying on Moore v. Shaw, 116 Cal. App. 4th 182, 199 (2004), which addressed a similar sanctions cross-reference in the anti-SLAPP statute, it holds that by referencing § 128.7, the Legislature meant to incorporate all of the sanctions regime, including the safe harbor procedure. Which basically means that if the court thinks a reconsideration motion merits sanctions, it can’t deny the motion and then issue an order to show cause. Because in that case, the motion can’t be withdrawn. The notice period for a motion is generally shorter than the safe harbor, so the court would need to take the reconsideration motion off calendar, or at least kick the hearing to give the safe harbor window and then address the merits and sanctions at the same time. 


Which, practically speaking, means that sanctions under § 1008(d) are basically never going to happen.

Reversed.

Friday, August 3, 2018

Don't Shoot at the King When You Need to Hit His Bureaucracy

Templo v. State of California, No. A151094 (D1d3 Jun 18, 2018)

Plaintiffs contend that Code of Civil Procedure § 631—which requires the posting of nonrefundable fees to preserve the right to jury trial—is unconstitutional because it’s a tax that wasn’t approved by a legislative supermajority. So they sued the state for declaratory relief. The trial court granted a motion for judgment on the pleadings, finding that the state wasn’t the proper defendant in such an action. 

In California, the general rule is in a case challenging the constitutionality of a statute is that you don’t sue the state, the governor, or the legislature. Instead, the proper defendant is the public officer or agency tasked with administering the statute. The idea is that that is who has the most significant institutional interest in the final outcome of the litigation. In a case challenging court funding, that agency would be the Judicial Council, which oversees the budget for the state judiciary. 

Problem is, plaintiffs already sued the Judicial Council, but (for reasons unexplained) dismissed it with prejudice at some point earlier in the case. So their story ends here.

Affirmed.

Thursday, August 2, 2018

Waived!

Von Becelaere Ventures, LLC v. Zenovic, No. D0702620 (D4d1 Jun. 6, 2018)

Construction dispute between a Builder and a Property Owner. The relevant contract has an arbitration clause. But Property Owner brings a construction defect case against Builder in state court in San Diego. Builder—who apparently didn’t get paid—then sues Property Owner in Orange County to enforce and foreclose on a mechanics lien he has on the property. Eventually everything gets transferred and related to a single case in San Diego. Builder moves to compel arbitration of the construction defect case. But the trial court denies the motion, reasoning that by filing the mechanics lien case, Builder waived the right to compel arbitration.


There’s a statute—Code of Civil Procedure § 1281.5—right on point. It preserves the statutory foreclosure remedy in circumstances where there’s an arbitration contract. The idea is that the lienholder files the lien case, immediately stays it, and then if it wins the arbitration, it can go back to court to enforce the award through the lien.


But to invoke § 1281.5, plaintiff’s complaint must indicate that the dispute is subject to arbitration, that the plaintiff does not intend to waive that right, and that plaintiff will move to stay the lien case pending arbitration, either concurrently with the complaint or within the next thirty days. Builder didn’t put any of that stuff in his OC complaint. So he waived.


Affirmed.

Wednesday, August 1, 2018

Sweating the Facts on Remand

Strategic Concepts, LLC v. Beverly Hills Sch. Dist., No. B264478M (D2d6 Jun. 6, 2018)

A while back, the Court of Appeal reversed and remanded a jury verdict for the plaintiff. The reversal was without qualification; it put no limit on the issues to be decided on remand. On a petition for rehearing, however, plaintiff asks for the modification of some facts in the opinion, arguing they will give her a problems on remand. The Court of Appeal doesn’t agree. In a situation where there’s an unqualified reversal and remand of a trial verdict, the facts recited in an appellate opinion aren’t binding on the ultimate merits. Which makes sense, since the Court of Appeal generally isn’t allowed to find facts on the first instance.

Reversed and remanded.

Tuesday, July 31, 2018

Sua Sponte, with a Side of Suggestion

Spector v. Spector, No. C084628 (D3 Jun. 4, 2018)

A family court in San Joaquin County overseeing the divorce of Rachelle and Phil Spector* ordered Phil to pay a certain amount of temporary spousal support. But after Phil’s attorney told the judge (in an email, cc Rachelle) that the ordered support exceeded his cash flow the Court decided to “sua sponte” reconsider and reduce the obligation. Wife objects—and because support orders are immediately appealable—appeals.


Thursday, July 26, 2018

Not Sticking Together

Jensen v. The Home Depot, Inc., No. E067002 (D5 May 31, 2018)

Home Depot gets sued by two employees. Their claims are based on similar disability discrimination theories. But it’s clear they don’t arise from the same transaction or occurrence.  Home Depot specially demurred under Code of Civil Procedure § 430.10(d) for misjoinder of plaintiffs, which the trial court granted, with leave. Then an amendment that leaves both Plaintiffs in and another demurrer, which Plaintiffs maybe didn’t oppose. And then another demurrer is granted without leave and a dismissal with prejudice is entered. Which seems kind of crazy, as it’s unclear why joining disparate plaintiffs, while inappropriate, means everyone should lose, effectively on the merits. Plaintiffs appeal.

Then one Plaintiff dismisses. That obviates the misjoinder. There is some debate is over whether the Court of Appeal should be a remand so that the now flying-solo plaintiff can just pursue her case alone or whether the appeal should just be dismissed as moot, leaving the judgment intact. The court takes the former approach, which makes sense.

Reversed.

Wednesday, July 25, 2018

A More Precise Strike on Damages

Abbott Labs. v. Superior Court, No. D072577 (D4d1 May 31, 2018)

This is the second time I’ve had the pleasure of writing about one of my own cases recently. This one’s a little older, but I’ve just gotten to it in the cue. I’m not going to much about the merits, which deal with a local district attorney’s ability (or lack thereof) to seek statewide relief for alleged violations of the UCL. 

Tuesday, July 17, 2018

Service Abroad ...

Rockefeller Tech. Inv. (Asia) VII) v. Changzhou Sinotype Tech. Co., Ltd., No. B272170 (D2d3 Jun 1, 2018)

Plaintiff, a US-based investment fund, won a $414 million default arbitration judgment against Defendant, a Chinese company. Over a year later, ChinaCo moved to vacate, arguing, among other things, that it was never properly served. The superior court declined to vacate. Although ChinaCo wasn’t properly served under the Hague Convention, the court found that it had consented to mail service in the underlying agreement that was the subject of the dispute, so resort to the Hague wasn’t necessary. 

Monday, July 16, 2018

This Is Not an Interpleader

Pacer Foreclosure, Inc. v. Alfalo, No. B268589 (D2d6 May 30, 2018) 

Trustee conducts a foreclosure sale, which results in proceeds in excess of the loan. Borrower sues both Trustee and Buyer for wrongful foreclosure. Trustee then files an interpleader and deposited the excess funds with the court. But the trial court granted Borrower’s demurrer on the interpleader and dismissed the case. Its order permitted Trustee to apply for the release of funds, but it wouldn’t automatically release the funds to Buyer. Everyone appeals. 

While the appeal is pending, Borrower settles with Buyer. Buyer agrees it doesn’t have claim to the excess funds that that it won’t object to their release to Borrower. Buyer then argues that the appeal is moot.


But it isn’t. Because whether Trustee’s complaint was a proper interpleader affects whether Trustee can recover fees out of the res, obtain a discharge, and be dismissed from the underlying wrongful foreclosure case. 


In any event, the trial court was correct to grant the demurrer. This wasn’t a legit interpleader situation because Buyer never had a real claim against the excess funds. It just doesn’t make sense that a Buyer—who is actually paying the money in a foreclosure sale—would also have some claim to money it paid in excess of Borrower’s loan balance. Moreover Civil Code § 2924k literally required Trustee to disburse any proceeds net of the loan to the Borrower. This isn’t some situation where the res isn’t sufficient to satisfy competing liens by different lenders. Without a reasonable threat of double vexation, an interpleader doesn’t lie. And without an interpleader, Trustee has no claim for its fees.


And given the settlement, there is no doubt at all that nobody has any claim on the money except Borrower. So the trial court should give him his money.


Affirmed and remanded with instructions.

Monday, July 9, 2018

Res Estoppel? Collateral Judicata?

Shine v. Williams-Sonoma, Inc., No B277513 (D2d4 May 29, 2018)

Named Plaintiff in this class action was a class member in Class Action #1, a prior wage and hour case against his Employer. Class Action #1 settled and, as a member of the settlement class, Plaintiff got some money. But now he’s a Named Plaintiff in Class Action #2, another wage and hour class action, against the same employer, with roughly the same class period, but on a new legal theory that wasn’t really litigated in Class Action #1. So the question is, do claim or issue preclusion, or the release entered in Class Action #1, bar Class Action #2?


The answer is yes. And the opinion gets that right. But it’s rather hard to follow and it does some weird stuff to getting to a result. 


Friday, July 6, 2018

Get in Line, CalPERS!

PERS v. Santa Clara Valley Transp. Auth., No. C083355 (D3 May 29, 2018)

So there’s an issue regarding the interpretation of the Public Employees’ Pension Reform Act that keeps coming up in administrative appeals before the CalPERS board. Instead of riding one of those appeals through administrative mandamus to obtain a definitive interpretation, CalPERS’s executive filed a declaratory relief action in Sacto Superior, suing a public agency and a union. But it can’t do that.

When a statutory scheme directs disputes into an administrative proceeding, litigants—including the government—need to work through that scheme to obtain the relief they seek. Unless the statutes foresee the filing of an independent, de novo, civil action—as was the case in the recently-decided Taswell case—that means going though the administrative appeals process and then seeking review of the results of that process through a writ of administrative mandamus. CalPERS can’t just jump that line by seeking declaratory relief. Its efforts to do so in this case are barred for failure to exhaust the administrative remedies.

Affirmed.

Thursday, July 5, 2018

A Good Day for Access to Justice

Jameson v. Desta, No. S230899 (Cal. Jul. 5, 2018).

The Court of Appeal decision in this case bothered me so much that I contacted the plaintiff and offered to represent him pro bono. We got review granted back in 2016. Today, the Court held in our favor in a 7-0 opinion by the Chief Justice. The short and slightly oversimplified of it is that the right to equal access to the courts requires state courts to provide indigent litigants with an official court reporter to transcribe their trials. But you should read it for yourself. There’s a lot of other good stuff in there too.

Court of Appeal reversed.

Have at It, Court of Chancery . . .

Bushansky v. Soon-Shiong, No. D072213 (D4d1 May 25, 2018)

Over the past decade, it has become increasingly prevalent for corporations to enact what are called forum-selection bylaws. These require stockholders who sue the company or its directors in stockholder litigation to bring their claims only in the state of incorporation, usually Delaware. Because bylaws are, more or less, a contractual arrangement between the company and its stockholders, the theory is that the bylaws are an enforcible forum selection contract. The Delaware Supreme Court agrees, and has held that they are enforceable. I’m not aware of a reported California appellate decision that’s given a thumbs-up, but the parties in this case seem to agree that the bylaw here is valid and enforceable. They just disagree that it applies.

Anti-Vaxer Benchslap!

Brown v. Smith, No. B279936 (D2d Jul. 2, 2018)

Talk about calling bullshit. The Court here took judicial notice that the factual allegation at the core of Plaintiffs’ theory was false and thus that it didn’t need to be taken as true in their complaint. Because Plaintiffs are antivaxers. And because it is not really debatable, California courts have been taking judicial notice of the fact that vaccines are safe and effective since 1925. Which pretty much dooms plaintiffs’ case, in which they claim that their nonsensical anti-scientific feelings give them a constitutional right for their kids to spread measles to other kids in Disneyland. 

Affirmed.

Tuesday, July 3, 2018

Be Careful What You Don't Pray For

Airs Aromatics v. CBL Data Recovery Techs., Inc., No. D072624 (D4d1 May 25, 2018)

I covered the issues in this case three years ago in the Dhawan case. But just in case you forgot, Code of Civil Procedure § 580 says a plaintiff can’t get a default judgment for more relief than is demanded in the complaint. That’s true even when the defendant, before defaulting, gets actual notice of the actual amount of damages the plaintiff will demand. So in Dhawan, plaintiff’s effort to give the a statement of damages like that required for punitive damages was held insufficient. And here, Defendant learned what Plaintiff’s demand was in a mediation. But knowing is not enough. To authorize a default judgment the actual number needs to be demanded in the complaint.

So if a plaintiff does the typical state court plaintiff thing and pleads damages according to proof in excess of the $25,000 jurisdictional threshold for an unlimited civil case—which technically violates § 425.10—it can’t lawfully recover a default judgment over $25 grand. To get more, it will need to amend to put in a number and make sure the defendant gets served with the new complaint before putting them into default. Otherwise, the judgment is void, and can be attacked years after the fact. Which is what happened here.

Reversed.

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

W. Bradley Electric, Inc. v. Mitchell Engineering , No. A167137 (D1d5 Feb. 28, 2024) Fatal traffic accident case where the Decedent’s family...