Friday, March 30, 2018

That Was Always the Intent; Just Don't Ask the Guys in San Diego...

Nutrition Distrib., LLC v. Southern Sarms, Inc., B0280983 (D2d7 Jan. 31, 2018)

So about two years ago, the 4/1 held that when moving for sanctions under Code of Civil Procedure § 128.5—which had been revived by the Legislature in 2014—a moving party was not required to serve the motion 21 days in advance and to offer a chance to withdraw the pleading. (A rule commonly called the “safe harbor.”) According to the court, the safe harbor didn’t apply even though it is specifically codified in § 128.7(c), and a cross reference in revived § 128.5(f) specifically said sanctions had to be imposed “consistently with the standards, conditions, and procedures set forth in subdivisions (c),(d), and (h) of Section 128.7.” I was skeptical.

Appellate Switcharoo OK when a Demurrer Is the Question

Gutierrez v. Carmax Auto Superstores Cal., No. F073215 (D5 Jan. 30, 2018)

The trial court granted a demurrer in a UCL and CLRA claim about used car warranties. In claiming that a warranty claim was sufficient, Plaintiff advances a new theory that wasn’t raised in the trial court. But that doesn’t preclude a reversal. 

Although failure to raise an issue before the trial court generally precludes its consideration on appeal, that rule is subject to exceptions. One of them is that in reviewing a demurrer, an appellate court looks de novo at whether the complaint states facts sufficient to sustain a cause of action on any possible legal theory. According to the Court here, the Supreme Court cases that states that rule—see e.g., City of Dinuba v. County of Tulare, 41 Cal. 4th 859, 870 (2007)—don’t limit their review to theories raised in the trial court. Some earlier Court of Appeal cases bear that out.

Justice Poochigian dissents, but only on the merits of a CLRA issue.

Reversed in part.

Thursday, March 29, 2018

It Will Never Be Satisfied...

Tikosky v. Yehuda, No. B278052 (D2d1 Jan. 30, 2018)

This collections opinion is only 14 pages long, but like any collections story worth its salt, it has so many twists and turns that it’s pretty hard to follow without drawing a diagram. The gist is that a judgment creditor tried to execute against some of the debtor’s real property. But that property already secured a large amount of other debt from different creditors. So the insurer for one of those other creditors decided that it was in its interest to just pay the judgment creditor off, in exchange for his agreement to forego pushing the property into a foreclosure sale. 

The question, then, is whether that payoff between the insurer and the judgment creditor should count as a satisfaction of the underlying judgment, to which the debtor is entitled to credit. It isn’t. The insurer wasn’t a joint tortfeasor. And it paid creditor to protect its insured’s security interest in the realty—thus avoiding paying a claim. It didn’t make the payment to pay off the judgment or otherwise benefit the debtor. Under those circumstances, the judgment debtor—who, FWIW, hasn’t paid a dime on the judgmentis not entitled to a partial satisfaction.

Affirmed.

Wednesday, March 28, 2018

Mass Joinder Requires Real Joinder

Brown v. Superior Court, No. F073964 (D5 Jan. 30, 2018)

This is a sketchy looking mass joinder case attacking home mortgage trust and servicing practices. It appears that some religious-sounding outfit convinced more than 1,000 homeowners to assign it the right to bring any claims related to their loans, along with a 5 percent interest in the underlying estates. The Ministry then re-assigned all those rights to Plaintiff, who filed an enormous litigation that seeks damages on behalf of everyone. 

Tuesday, March 27, 2018

A Post-Answer Motion to Change Venue Can Still Be Timely

Walt Disney Parks & Resorts, U.S., Inc. v. Superior Court, No. B284261 (D2d7 Mar. 26, 2018)

Plaintiffs sued the Mouse for some ticketing practices at Disneyland. But they sued in LA, not OC. So after a failed attempt at removal, Disney moved to transfer venue to OC Superior because the LA venue was improper. The trial court denied the motion as untimely, and Disney took a writ.

Nurse Class Needed Better Glue

Lampe v. Queen of the Valley Med. Cntr., No. A146588 (D1d4 Jan 23, 2018)

Duran seems to be  all the rage lately.

This is another wage and hour class action where Plaintiff failed to establish a uniform and unlawful policy, whether official or de facto, that applied across the various sub-classes it defined. Although Plaintiff provided declaration evidence of noncompliance with various wage and hour requirements from various class members, Defendant provided its own declarations to the contrary. In the absence of something that tied it all together—like the kind of rigorous statistical analysis showing a likely pattern of violations that was offered in In re ABM—Plaintiff can’t show that common issues predominate.

Affirmed.

Monday, March 26, 2018

It's the Disloyalty, Not the Litigation

Gaynor v. Bulen, No. D070907 (D4d1 Jan. 23, 2018)

This is a probate dispute where some beneficiaries of a trust are suing another beneficiary for breach of fiduciary duty for allegedly improperly meddling with the decisions of the trustees. A handful of the alleged bad acts consist of participation in earlier phases of the probate litigation. So the Meddler brought an anti-SLAPP motion, which the trial court denied, and now the Court of Appeal now affirms.

In a decision that heavily relies on the Supreme Court’s decision in Park, the Court holds that the incidents of litigation participation in the complaint are simply examples in an overarching claim that is based on improperly and disloyally favoring some beneficiaries over the others. That conduct is just evidence of a claim that is not fundamentally based on petitioning. 

Meddler tries to avoid that argument by relying on Baral, another recent Supreme Court case, which says that courts can parse allegations within a claim and excise factually and legally unsupported allegations that, although not constituting the whole claim, nonetheless are based on protected activities. But the Court here says Baral can’t parse as finely as Meddler wants it to without running afoul of Park. At the end of the day, the claim is based on Meddler’s disloyalty, with the litigation activity simply being evidence of that, not the crux of the claim.

Affirmed.

Bad Stats Still Don't Show Predominance

Duran v. U.S. Bank Nat’l Assoc., No A148817 (D1d1 Feb. 9, 2018)

This is a post-remand appeal after the Supreme Court’s decision in Duran, which reversed a plaintiff-side judgment in a wage and hour class action, because Plaintiff was permitted to rely on sketchy statistical evidence for both class cert and liability. On remand, the trial court denied cert, finding that plaintiffs couldn’t cure the ails that the Supreme Court pointed out.

And the Court of Appeal agrees. The statistical evidence that Plaintiff came up with after the reversal wasn’t good enough to fix the problems that the Supreme Court identified. In particular, Plaintiff had his expert do another survey of the putative class, but the survey still had significant problems with sample bias and the rate of error was too high to merit extrapolating the data to the whole class. Indeed, the new survey had significant discrepancies in responses from the same class exact members on the first go-round. That’s all just too unreliable to let some survey data stand in for the individual work experiences of the actual members of the class.

Affirmed.

Friday, March 23, 2018

Supreme Court Confirms that the SLAPP Clock Starts on Each New Claim

Newport Harbor Ventures, LLC v Morris Cerullo World Evangelism, No. S239777 (Cal. Mar. 21, 2018)

At the end of 2016, the Court of Appeal held that the 60-day clock to file an anti-SLAPP motion runs from the time in which a cause of action first appears in an amended complaint.  So you get 60 days from the original complaint, and then 60 more days to bring a motion to challenge a new cause of action in an amended complaint, but you don’t get 60 more days to challenge a cause of action that appeared before and is just being re-pleaded in an amended complaint. And then the whole thing is subject to the court’s discretion to extend the time under Code of Civil Procedure § 425.16(f).

That holding was somewhat in tension with Yu v. Signet Bank/Virginia, 103 Cal. App. 4th 298 (2002), which suggested at least in passing that the 60-day clock started anew on every claim upon an amendment. The Supreme Court granted review, likely to resolve the apparent split. And now, in a unanimous opinion written by Justice Chin, it affirms the Court of Appeal. Basically for the same reasons that the Court of Appeal ruled as it did.

Affirmed.

Thursday, March 22, 2018

Clear Case of Preference

Fox v. Superior Court, No. A153672 (D1d4 Mar. 21, 2018)

Under Code of Civil Procedure § 36(a), a party over 70 years of age is entitled to mandatory trial preference if she has a substantial interest in the action and her health is such that a preference is needed to avoid prejudice to her interest in the litigation. The trial court here denied a preference to a 81-year old asbestos plaintiff who is suffering from cancer that has metastasized into her bones, among many other ailments, and is currently undergoing chemotherapy. But in the absence of any showing to the contrary by defendant, the standard was met. Thus the Court of Appeal, after a Palma notice, issues a peremptory writ and orders the trial court to set trial within 120 days.

Writ granted.

Pretrial Detention Statute of Limitations Blues

Austin v. Medicis, No. B277546 (D2d3 Mar. 21, 2018)

Code of Civil Procedure § 352.1 provides for tolling of a statute of limitations for up to two years if, at the time the claim accrued, the plaintiff is “imprisoned on a criminal charge . . . for a term less than life.” The Court here reads that to toll the SOL for inmates serving sentences to state prison, but not to a pretrial detainee in a county jail.

Affirmed.

Tuesday, March 20, 2018

Dump Flatley; Learn Park!

Golden Eagle Land Inv. v. Ranch Santa Fe Assoc., No. D069872 (D4d1 Jan. 18, 2018)

Some real estate developers on tony part of San Diego County are angry that the homeowners association that controls the area trashed their project in communications with the County’s planners, urging them not to grant a lot size variance. So they sued on a bunch of theories. The trial court granted the Association’s anti-SLAPP motion on every theory except a claim under the Davis-Stirling Act, which contains open meeting requirements applicable to HOAs. Both parties appealed.

Monday, March 19, 2018

Not Very Convincing....

Dean v. Friends of Pine Meadow, No. A149735 (D1d4 Mar. 8, 2018)

A golf course developer sued an advocacy group that is agitating against one of its projects for defamation and various business interference torts. That might sound familiar. Perhaps because the California Supreme Court used that precise scenario as an example of “the paradigm SLAPP” almost twenty years ago. Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1125 (1999).

Thursday, March 15, 2018

Post #800: An Issue of Duty

Klean Hollywood LLC v. Superior Court, No. B283816 (D2d4 Mar. 8, 2018) 

This isn’t about procedure, but it is my 800th post, and a good life lesson nonetheless:

If you are a heroin addict and check into a rehab, and then proceed to smuggle in heroin on which you OD, you don’t get to sue the rehab for negligence for failing to stop you from doing that.

Writ granted.

Wednesday, March 14, 2018

Ahh the CEQA

Heron Bay Homeowners Assoc. v. City of San Leandro, No. A143985 (D1d4 Jan. 12, 2018)

A Homeowners’ Association obtained a writ of mandate under CEQA, ordering a City and a Manufacturer to prepare an environmental impact report before beginning construction of a 100-foot tall wind turbine near the HOA’s neighborhood. City and Manufacturer gave up on the project. But the trial court nonetheless awarded the HOA its fees under the private attorney general doctrine, Code of Civil Procedure § 1021.5.

Tuesday, March 13, 2018

Big Class Certified Under Brinker

In re ABM Indus. Overtime Cases, No. A132387 (D1d4 Jan. 10, 2018)

This is a big wage and hour class action—it covers 35,000 janitors—and it has been pending for a long time—the complaint was filed in 2007 and the first notice of appeal in 2011. Indeed, the appeal has been pending so long that the trial court’s order denying class cert predates Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1049 (2012), the California Supreme Court’s seminal decision on class cert in wage-and-hour cases.

Monday, March 12, 2018

The Joys of § 425.16(i)

Cent. Valley Hospitalists v. Dignity Health, No. A148742 (D1d2 Jan. 9, 2018)

The complaint in this case was crappy. So crappy it wouldn’t hold up to a demurrer. Practically the only thing it was specific about was that it disclaimed being directed at any anti-SLAPP-worthy activity. But defendant filed both a demurrer and an anti-SLAPP motion anyway. The demurrer was granted, with leave. But the trial court denied the anti-SLAPP without prejudice, expressly stating that Defendant could bring a new anti-SLAPP against a better fleshed out complaint, if merited. Defendant, however, didn’t wait to SLAPP the new complaint. Instead, it took an appeal, as it could as a matter of right.

The Court of Appeal isn’t pleased. Defendant managed to waste 22 months with a stupid appeal of an anti-SLAPP motion it could have more meaningfully directed to a better complaint. Moreover, the complaint here, crappy as it was, did not state claims that arose from protected conduct. It indeed disclaimed that it did. So this appeal was a worthless waste of time. But the Court here declines to award any monetary sanctions and finds it sufficient to browbeat Defendant, mostly because Plaintiff didn’t really ask for them.

Affirmed.

Friday, March 9, 2018

Victorious Non-Alter Ego Gets 1717 Fees

Burkhalter Kessler Clement & George LLP v. Hamilton, No. G054337 (D4d3 Jan. 8, 2018)

P sues D for breach of contract. P also sues AE on the same contract, on the theory that AE is D’s alter ego. The P/D contract has an attorney’s fee clause. P wins as to D on breach, but fails to prove that AE is D’s alter ego. 

Q: Who recovers fees?

A: P gets them against D, but AE gets them against P.

One of the upshots of Civil Code § 1717 is that if you try to enforce a contract with a fee provision in it against a nonparty (like an alleged alter ego) that party gets fees under the contract if it wins. That’s the case even if plaintiff wins on liability against the principal defendant, but fails to prove the nonparty is bound. Nothing in § 1717 prevents there from being two different prevailing parties on a claim by claim basis.
 
Reversed.

Thursday, March 8, 2018

A Demand for Everything Is Apparently Not an Offer of Compromise

Arave v. Merrill Lynch, Pierce, Fenner & Smith Inc., No E061677 (D4d2, as modified, Jan. 23, 2018)

First things first. A footnote at the beginning of this 95-page opinion says “We certify this opinion for publication under California Rules of Court, rules 8.1105(b) and 8.1110, except for parts I.B., I.C., I.D., I.E., I.F., I.G., II.A.1., II.A.2., II.A.4., II.A.5., II.A.6., II.B., II.C., II.D., II.E., II.F., and II.I.” (On a publication request the court struck II.C from the footnote.) 
So to figure out what is actually being published, you’ll need to make a list (like literally write it down) then scroll through the opinion and figure out by process of elimination what’s not excluded.

Monday, March 5, 2018

Taxpayers Have Standing to Litigate Consitutional Claims

Cal. DUI Lawyers Assoc. v. Dep’t of Motor Vehicles, No. B278092 (D2d4 Mar. 2, 2018)

The California DUI Lawyers Association brought a taxpayer action under Code of Civil Procedure § 526a, alleging that the DMV’s administrative license suspension procedures for DUI arrestees violate procedural due process. In particular, the CDLA argued that the hearing officers who adjudicate license suspension claims are not independent of the DMV and tasked with a hybrid investigative/adjudicatory function that makes them insufficiently neutral to satisfy due process. The DMV argued, and the trial court agreed, that CDLA didn’t have taxpayer standing because the DMV procedure was “legal,” i.e., consistent with the Vehicular Code. But that’s not right. A taxpayer can sue under § 526a to enjoin public agency acts that constitute “waste.” And “waste” includes not only acts that contravene statutory authority, but also acts that are unconstitutional. Since the CDLA made a colorable constitutional challenge, they had standing to bring their claims under § 526a. 

Reversed and remanded.

Saturday, March 3, 2018

Say It Again: RFA Responses Are Not Evidence

Victaulic Co. v. Am. Home Assurance Co., No. A146617 (D1d2 Feb. 26, 2018)

This is an insurance coverage dispute over some product liability claims. During trial on declaratory judgment and bad faith claims, the court permitted Plaintiff to examine Ms. Finberg, one of the carriers adjusters, about some RFA responses she verified denying that there was any potential for coverage. 

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...