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.

The Jurisprudence of Signification

Wood v. Superior Court , No. A168463 (D1d2 Mar. 14, 2024). Yes. You can change your legal name to Candi Bimbo Doll if you want to. See Cod...