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.

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.

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.

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. 

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.

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.

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.

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.