Penuma Int’l, Inc. v. Cho, No. A151536 (D1d1 Jun. 24, 2016)
A dispute between an Employee and his former Employer. Employee, who had set up Employer’s email domain, failed to turn it over after he left for a competitor. Although a flurry of claims and cross-claims were alleged, the only one for which liability was found was trespass to chattels. Employer appealed, among other things, the dismissal of its claim under the Unfair Competition Law.
Employee denied employer some use over the domain, but not enough to constitute conversion. The Court holds that is not enough to bootstrap the tort into a claim for an “unlawful” violation under the UCL. The “unlawful” standard is often articulated to include practices made unlawful under “court-made law.” But in a sparse analysis, the Court of Appeal here finds that a “non-criminal tort,” without more, is insufficient as a “specific law” to serve as the basis of an unlawfulness claim.* And in any event, since the UCL didn’t afford any additional relief, it’s basically an academic point.
Affirmed.
*This is actually a tricky question, and the short-shrift analysis the Court gives it here is not ideal. The Court didn’t need to reach the issue since it didn’t afford any additional remedy. But since an alternative holding is not dicta in California, arguably, the decision here is precedential in a case where the UCL were to afford some basis additional relief. E.g., a civil enforcement case where a public prosecutor sought penalties grounded in “unlawful” violations grounded in tort.
Tuesday, July 30, 2019
Friday, July 26, 2019
Collections Default Is Not an Avenue for Collateral Attack
Cnty. of Sonoma v. Gustely, No. A153423 (D1d2 Jun. 24, 2019)
County agency assessed penalties against a Landowner for violations of land use ordinances. Landowner didn’t appeal or seek a writ of administrative mandamus. County brought a collection procedure to enforce the judgment. Landowner defaulted. On a motion for default judgment, the trial court reduced the penalty from $45 to $20 per day. That was error. By declining to appeal the enforcement case, Landowner forfeited the right to challenge the judgment. The trial court should not have engaged in what was essentially a collateral attack on it in a default proceeding.
Judgment modified.
County agency assessed penalties against a Landowner for violations of land use ordinances. Landowner didn’t appeal or seek a writ of administrative mandamus. County brought a collection procedure to enforce the judgment. Landowner defaulted. On a motion for default judgment, the trial court reduced the penalty from $45 to $20 per day. That was error. By declining to appeal the enforcement case, Landowner forfeited the right to challenge the judgment. The trial court should not have engaged in what was essentially a collateral attack on it in a default proceeding.
Judgment modified.
Thursday, July 25, 2019
Who decides who decides?
Hollingsworth v. Superior Court, No. B297658 (D2d4 Jul. 24, 2019)
If you get hurt at work, workers’ compensation is generally your exclusive remedy. But there are exceptions, which can take your claim out of the workers’ comp. administrative system and let you file in superior court. At some point, however, somebody needs to decide which system you should be in. California courts have generally held that both the Workers’ Compensation Appeal Board and superior courts have jurisdiction to, at minimum, decide the threshold question of whether they have jurisdiction to entertain the claim. But who decides when there are cases in both fora? The Court of Appeal here holds that whichever forum first took up jurisdiction over the issue should be the one to decide. Here, that was the superior court.
Writ granted.
If you get hurt at work, workers’ compensation is generally your exclusive remedy. But there are exceptions, which can take your claim out of the workers’ comp. administrative system and let you file in superior court. At some point, however, somebody needs to decide which system you should be in. California courts have generally held that both the Workers’ Compensation Appeal Board and superior courts have jurisdiction to, at minimum, decide the threshold question of whether they have jurisdiction to entertain the claim. But who decides when there are cases in both fora? The Court of Appeal here holds that whichever forum first took up jurisdiction over the issue should be the one to decide. Here, that was the superior court.
Writ granted.
RFAs Shift Fees When You Can't Win
Samsky v. State Farm Mut. Auto. Ins. Co., No. B293885 (D2d8 as modified Jul. 23, 2019)
If a party denies a request for admission but fails to prevail on the issue at trial, the propounding party is entitled to recover costs of proof under Code of Civil Procedure § 2033.420(a) unless an exception in § 2033.420(b) applies. Although the burdens aren’t expressly set out in the statute, the Court of Appeal here decides that the structure of the statute assigns the burden of proof of an exception to the party seeking to avoid fees by justifying its denial.
Here, Plaintiff asked an Insurer to admit, among other things, that a tortfeasor was negligent and a cause of his injuries. Insurer denied. But Plaintiff prevailed on the issue in an arbitration. When Plaintiff sought fees, however, the trial court found that Plaintiff had not shown the lack of a reasonable justification for the denial. That got the burden wrong. Insurer didn’t offer adequate evidence of its own to sustain its burden. That required it to come forward with credible, admissible evidence on which a contrary finding could have been sustained, such that Insurer had a reasonable belief that it would prevail at trial. So no exception was established. Plaintiff should have recovered his fees.
Reversed.
If a party denies a request for admission but fails to prevail on the issue at trial, the propounding party is entitled to recover costs of proof under Code of Civil Procedure § 2033.420(a) unless an exception in § 2033.420(b) applies. Although the burdens aren’t expressly set out in the statute, the Court of Appeal here decides that the structure of the statute assigns the burden of proof of an exception to the party seeking to avoid fees by justifying its denial.
Here, Plaintiff asked an Insurer to admit, among other things, that a tortfeasor was negligent and a cause of his injuries. Insurer denied. But Plaintiff prevailed on the issue in an arbitration. When Plaintiff sought fees, however, the trial court found that Plaintiff had not shown the lack of a reasonable justification for the denial. That got the burden wrong. Insurer didn’t offer adequate evidence of its own to sustain its burden. That required it to come forward with credible, admissible evidence on which a contrary finding could have been sustained, such that Insurer had a reasonable belief that it would prevail at trial. So no exception was established. Plaintiff should have recovered his fees.
Reversed.
Wednesday, July 24, 2019
Ils n'avaient pas besoin de dire dépeçage
Chen v. L.A. Truck Cntrs., S240245 (Cal. Jul. 22, 2019)
This PI case involving a bus accident. Plaintiff sued, among others, the Indiana-based Manufacturer of the bus and a California-based Dealer. His theory was the bus was defective because it was manufactured and distrusted without seat belts. The trial court first held that Indiana law—which was substantially less consumer friendly—applied. But then the manufacturer settled out. The trial court (now a different judge) refused Plaintiff’s motion in limine requesting a new ruling applying California law. Distributor won a split defense verdict.
The Court of Appeal reversed. The Court of Appeal held that the trial court was required to reconsider the choice of law ruling after Plaintiff settled with the Indianan Manufacturer. The original choice-of-law ruling was effectively a motion in limine, which is always provisional up to trial. So nothing stopped the Court from reevaluating the choice of law question, which would have had a different result without the presence of an Indiana defendant.
The Supreme Court granted review. In a short and unanimous opinion written by Justice Chin, the Court holds only that the Court of Appeal erred when it decided the trial court was required to reevaluate the choice of law question after Manufacturer settled. Given the importance of early resolution of choice of law issues in many cases, courts should not be required to reevaluate those decisions based on late developments in the procedural posture of a case.
Moreover, neither party challenged the original choice of law determination on appeal. But both Defendants were in the case at the time of the original choice of law ruling. So if Plaintiff wanted to argue that California law applied to Dealer, even if Indiana law applied to manufacturer, it could have done so at that time.
The Court “underscore[s]” the narrowness of its ruling: “[W]e do not reach the question whether trial courts may revisit a prior choice of law ruling. Nor do we opine that there are no circumstances under which the trial court would be obligated to reconsider the choice of law. We hold only that, in this case, plaintiffs fail to demonstrate that their decision to accept a settlement offer from one defendant constitutes such an exceptional circumstance.”
Court of Appeal reversed.
This PI case involving a bus accident. Plaintiff sued, among others, the Indiana-based Manufacturer of the bus and a California-based Dealer. His theory was the bus was defective because it was manufactured and distrusted without seat belts. The trial court first held that Indiana law—which was substantially less consumer friendly—applied. But then the manufacturer settled out. The trial court (now a different judge) refused Plaintiff’s motion in limine requesting a new ruling applying California law. Distributor won a split defense verdict.
The Court of Appeal reversed. The Court of Appeal held that the trial court was required to reconsider the choice of law ruling after Plaintiff settled with the Indianan Manufacturer. The original choice-of-law ruling was effectively a motion in limine, which is always provisional up to trial. So nothing stopped the Court from reevaluating the choice of law question, which would have had a different result without the presence of an Indiana defendant.
The Supreme Court granted review. In a short and unanimous opinion written by Justice Chin, the Court holds only that the Court of Appeal erred when it decided the trial court was required to reevaluate the choice of law question after Manufacturer settled. Given the importance of early resolution of choice of law issues in many cases, courts should not be required to reevaluate those decisions based on late developments in the procedural posture of a case.
Moreover, neither party challenged the original choice of law determination on appeal. But both Defendants were in the case at the time of the original choice of law ruling. So if Plaintiff wanted to argue that California law applied to Dealer, even if Indiana law applied to manufacturer, it could have done so at that time.
The Court “underscore[s]” the narrowness of its ruling: “[W]e do not reach the question whether trial courts may revisit a prior choice of law ruling. Nor do we opine that there are no circumstances under which the trial court would be obligated to reconsider the choice of law. We hold only that, in this case, plaintiffs fail to demonstrate that their decision to accept a settlement offer from one defendant constitutes such an exceptional circumstance.”
Court of Appeal reversed.
The Reporter's Privilege and NDAs
Jenni Rivera Enters. v. Latin World Entm’t Holdings, Inc., No B279739 (D2d7, Jun. 29, 2019)
I’m surprised this doesn’t come up more often. Plaintiff is the estate of a Mexican-American singer who died in a plane crash. It alleges that some television Producers and a TV Network tortiously interfered with an NDA entered by Singer’s manager, by paying for information regarding Signer’s life story. The Producers and the Network claim the case is a SLAPP. The trial court denied the motions.
On appeal nobody contests that the claims meet the first element of the anti-SLAPP analysis, because the production of a television program about a dead celebrity is conduct in furtherance of free speech. The Court of Appeal, however, reverses as to the Producers but affirms as to the Network. As to the Producers, the Court finds there was enough evidence to make out a prima facie claim of tortious interference. In particular, there was substantial, albeit disputed, evidence that Producers were aware of the NDA when singed Manager up for a production deal.
But the Court finds that the Network was protected by the First Amendment news-gathering privilege. Generally, in gathering news, reporters are not allowed to violate the law or commit crimes. They can’t, for instance, hack computers or break into offices. But the First Amendment protects ordinary news gathering, which includes asking questions to persons who might be under some contractual or other obligations of confidentiality. Which suggests, at least, that a news organization can’t be held liable for inducing a breach of a NDA in connection with accurately gathering and reporting the news.
Although the Court suggests that result, it ultimately holds it doesn’t need to sweep so broadly. There wasn’t any evidence that the Network was aware of the NDA at the time it agreed to run the program. There was some evidence that it subsequently learned but continued to pay license fees to Producers and to promote Manager’s involvement. But even if that were enough to make out a prima facie claim for tortious interference, that conduct would not be sufficiently wrongful or unlawful to overcome the privilege.
Reversed in part.
I’m surprised this doesn’t come up more often. Plaintiff is the estate of a Mexican-American singer who died in a plane crash. It alleges that some television Producers and a TV Network tortiously interfered with an NDA entered by Singer’s manager, by paying for information regarding Signer’s life story. The Producers and the Network claim the case is a SLAPP. The trial court denied the motions.
On appeal nobody contests that the claims meet the first element of the anti-SLAPP analysis, because the production of a television program about a dead celebrity is conduct in furtherance of free speech. The Court of Appeal, however, reverses as to the Producers but affirms as to the Network. As to the Producers, the Court finds there was enough evidence to make out a prima facie claim of tortious interference. In particular, there was substantial, albeit disputed, evidence that Producers were aware of the NDA when singed Manager up for a production deal.
But the Court finds that the Network was protected by the First Amendment news-gathering privilege. Generally, in gathering news, reporters are not allowed to violate the law or commit crimes. They can’t, for instance, hack computers or break into offices. But the First Amendment protects ordinary news gathering, which includes asking questions to persons who might be under some contractual or other obligations of confidentiality. Which suggests, at least, that a news organization can’t be held liable for inducing a breach of a NDA in connection with accurately gathering and reporting the news.
Although the Court suggests that result, it ultimately holds it doesn’t need to sweep so broadly. There wasn’t any evidence that the Network was aware of the NDA at the time it agreed to run the program. There was some evidence that it subsequently learned but continued to pay license fees to Producers and to promote Manager’s involvement. But even if that were enough to make out a prima facie claim for tortious interference, that conduct would not be sufficiently wrongful or unlawful to overcome the privilege.
Reversed in part.
Tuesday, July 23, 2019
Wilson Day Has Arrived.
Wilson v. Cable News Network, Inc., No. S239686 (Cal. Jul. 24, 2019)
Yesterday was a big day for California Civil Procedure, with the California Supreme Court handing down two decisions of procedural significance. I’ll address the second tomorrow.
Yesterday was a big day for California Civil Procedure, with the California Supreme Court handing down two decisions of procedural significance. I’ll address the second tomorrow.
But the first was the Court’s long-awaited anti-SLAPP decision in Wilson v. CNN. Wilson addresses the scope and meaning
of Code of Civil Procedure § 425.16(e)(4)’s “other conduct in furtherance”
element as applied to an employment discrimination claim. If you follow this kind of thing, you should read the whole opinion,
which has tons of interesting anti-SLAPP discussion.
I have spent a lot
of time thinking and writing about this (e)(4) issue over the past decade and a half, so sorry for the long post.
Overall, Wilson is a good opinion with
a generally correct result. I’m not sure I agree with every step of the Court’s
analysis, but it’s navigating a very complicated space and nothing in its
reasoning isn’t generally defensible under the text of 425.16 and the Court’s prior
decisions. (Except for maybe footnote 7 . . . .) Anyway, I wanted to get this out quickly,
so these are initial thoughts. If I had more time, I would have made it shorter.
Sunday, July 21, 2019
Defendants, Discounts, and Damages
Lewis v. Ukran, No. B290128 (D2d4 Jun. 26, 2019)
Interesting question, somewhat procedural.
Question is: When a damage award includes damages for future injuries such as lost wages or future medical expenses, who bears the burden of justifying a reduction to present value? State law is silent on the issue, and federal courts are split. The court here decides that the burden should fall on the party that wants to alter the status quo from the face value of the verdict. So a defendant seeking a reduction based on a discount factor bears the burden of production and proof to establish present value. But in the event that inflation ever becomes an issue again, a plaintiff seeking to increase an award to offset future inflation would bear that burden. Here, neither party put in any evidence on discount. So in the absence of that, the trier of fact was neither required nor permitted to discount the future award to current value.
Affirmed.
Interesting question, somewhat procedural.
Question is: When a damage award includes damages for future injuries such as lost wages or future medical expenses, who bears the burden of justifying a reduction to present value? State law is silent on the issue, and federal courts are split. The court here decides that the burden should fall on the party that wants to alter the status quo from the face value of the verdict. So a defendant seeking a reduction based on a discount factor bears the burden of production and proof to establish present value. But in the event that inflation ever becomes an issue again, a plaintiff seeking to increase an award to offset future inflation would bear that burden. Here, neither party put in any evidence on discount. So in the absence of that, the trier of fact was neither required nor permitted to discount the future award to current value.
Affirmed.
Wednesday, July 17, 2019
Rogue Juror!
Nodal v. Cal-West Rain, Inc., No. B285482 (D2d6 Jul. 17, 2019)
Unlike in federal court and most other states, in California the affidavit of a juror is admissible in connection with a new trial motion to establish juror misconduct. The testimony needs to be about object acts and statements—a juror’s affidavit about his or her thought processes is improper and inadmissible. Evid. Code § 1150. If misconduct is proven, a presumption or prejudice arises. Unless that is rebutted, the moving party is entitled to a new trial.
This is a PI case involving a blown valve in a vineyard irrigation system. According to the affidavits of two jurors, another juror, who was a farmer and pipe-fitter with 35 years’ experience* told the rest of the jury during deliberations that the system was set up the way anyone in the industry would have done it, so the blown valve must have been the vineyard’s fault. The jury then rendered a 9-3 defense verdict finding that the manufacturer was not negligent.
Although jurors can bring their common sense to bear in their deliberations, they aren’t supposed to be providing freelance expert testimony. So the juror’s statements were clear misconduct. And since the manufacturer did not rebut the presumption of prejudice, a new trial should have been granted.
Reversed.
*FWIW, it would have to be a pretty freaky venire for most lawyers to leave a highly experienced agricultural pipe-fitter on the jury in a case about malfunctioning irrigation equipment.
Unlike in federal court and most other states, in California the affidavit of a juror is admissible in connection with a new trial motion to establish juror misconduct. The testimony needs to be about object acts and statements—a juror’s affidavit about his or her thought processes is improper and inadmissible. Evid. Code § 1150. If misconduct is proven, a presumption or prejudice arises. Unless that is rebutted, the moving party is entitled to a new trial.
This is a PI case involving a blown valve in a vineyard irrigation system. According to the affidavits of two jurors, another juror, who was a farmer and pipe-fitter with 35 years’ experience* told the rest of the jury during deliberations that the system was set up the way anyone in the industry would have done it, so the blown valve must have been the vineyard’s fault. The jury then rendered a 9-3 defense verdict finding that the manufacturer was not negligent.
Although jurors can bring their common sense to bear in their deliberations, they aren’t supposed to be providing freelance expert testimony. So the juror’s statements were clear misconduct. And since the manufacturer did not rebut the presumption of prejudice, a new trial should have been granted.
Reversed.
*FWIW, it would have to be a pretty freaky venire for most lawyers to leave a highly experienced agricultural pipe-fitter on the jury in a case about malfunctioning irrigation equipment.
Government Immunity Is an Affirmative Defense that Must Be Plead
Quigley v. Green Mt. Fire Protection Dist., No. S242250 (Cal. Jul. 15, 2019)
The Supreme Court holds that the governmental tort immunities in the Government Claims Act (Gov. Code § 810, et seq.) are non-jurisdictional affirmative defenses that can be forfeited* if not alleged in the defendant’s answer. That seems pretty straightforward.
In the case, the Defendant had plead a generic affirmative defense that it was immune as a government entity, and then made reference to the entire GCA. It did not, however, specifically reference Gov. Code § 850.4, an immunity for firefighting that seemingly applied to the facts of the case. The case was then litigated for four years and went to trial. Defendants first referenced § 850.4 in a nonsuit motion at the end of Plaintiff’s opening statement. The trial court erroneously held that the immunity was jurisdictional and could be raised at any time.
Other than the jurisdiction issue, the Supreme Court does not want to deal with any of that. So on remand, the Court of Appeal needs to decide if the reference to the whole act was adequate to allege the basis of an “intelligibly distinguished” affirmative defense under Code of Civil Procedure § 431.30(g). And if not, it needs to decide if the trial court abused its discretion by permitting Defendant to first raise an unplead affirmative defense after the onset of trial.
Reversed.
*Footnote 4 makes a nomenclature point about the difference between a forfeiture and a waiver. A forfeiture is the sacrifice of a right by failing to timely raise it. A waiver, on the other hand, is the intentional surrender of a known right. For instance, a failure to object to evidence is a forfeiture, but a guilty plea is a waiver. People frequently, however, refer to forfeiture scenarios as waivers. Even the Courts and the Legislature. But California courts have recently been pointing out the distinction, so it would do well to be more precise in our terminology.
The Supreme Court holds that the governmental tort immunities in the Government Claims Act (Gov. Code § 810, et seq.) are non-jurisdictional affirmative defenses that can be forfeited* if not alleged in the defendant’s answer. That seems pretty straightforward.
In the case, the Defendant had plead a generic affirmative defense that it was immune as a government entity, and then made reference to the entire GCA. It did not, however, specifically reference Gov. Code § 850.4, an immunity for firefighting that seemingly applied to the facts of the case. The case was then litigated for four years and went to trial. Defendants first referenced § 850.4 in a nonsuit motion at the end of Plaintiff’s opening statement. The trial court erroneously held that the immunity was jurisdictional and could be raised at any time.
Other than the jurisdiction issue, the Supreme Court does not want to deal with any of that. So on remand, the Court of Appeal needs to decide if the reference to the whole act was adequate to allege the basis of an “intelligibly distinguished” affirmative defense under Code of Civil Procedure § 431.30(g). And if not, it needs to decide if the trial court abused its discretion by permitting Defendant to first raise an unplead affirmative defense after the onset of trial.
Reversed.
*Footnote 4 makes a nomenclature point about the difference between a forfeiture and a waiver. A forfeiture is the sacrifice of a right by failing to timely raise it. A waiver, on the other hand, is the intentional surrender of a known right. For instance, a failure to object to evidence is a forfeiture, but a guilty plea is a waiver. People frequently, however, refer to forfeiture scenarios as waivers. Even the Courts and the Legislature. But California courts have recently been pointing out the distinction, so it would do well to be more precise in our terminology.
Tuesday, July 16, 2019
Contracts Are Not Communications
Valuerock TN Props., LLC v. PK Larwin Square SC LP, No. 6056634 (D4d3 Jun 28, 2019)
This one is pretty easy.
There’s a contract—a commercial lease. Tenant wants to assign it. Landlord refuses to agree. There’s some back and forth on the matter. Sooner or later Tenant sues for unreasonable denial of consent to the assignment. After the complaint is filed, tenant makes a revised proposal, which is again denied, and which subsequently forms the basis of an amended complaint.
So the question is: Does the case “arise from” a “settlement communication” consisting of the back and forth commercial dealing on the requested assignment, which could make it based on “protected activity” under the anti-SLAPP statute?
No, it doesn’t. The case arises from the decision not to agree to the assignment proposal. While that decision might have been communicated in arguable settlement correspondence, the denial itself is a non-communicative commercial decision, such that it would be protected activity.
Affirmed.
This one is pretty easy.
There’s a contract—a commercial lease. Tenant wants to assign it. Landlord refuses to agree. There’s some back and forth on the matter. Sooner or later Tenant sues for unreasonable denial of consent to the assignment. After the complaint is filed, tenant makes a revised proposal, which is again denied, and which subsequently forms the basis of an amended complaint.
So the question is: Does the case “arise from” a “settlement communication” consisting of the back and forth commercial dealing on the requested assignment, which could make it based on “protected activity” under the anti-SLAPP statute?
No, it doesn’t. The case arises from the decision not to agree to the assignment proposal. While that decision might have been communicated in arguable settlement correspondence, the denial itself is a non-communicative commercial decision, such that it would be protected activity.
Affirmed.
Monday, July 15, 2019
Codefendant Collateral Estoppel
Thee Aguila, Inc. v. Century Law Group, No. B289452 (D2d1 July 2, 2019)
Landlord and Tenant were parties to an eminent domain proceeding brought by the LAUSD. As part of the judgment in that proceeding, the court decided the allocation of just compensation between them. Now, Landlord sued Tenants over the lease agreement, purporting to have the right to further adjustment.
But Landlord is collaterally estopped from doing so, because the allocation issue was decided in the prior case. The fact that both Landlord and Tenant were on the same side of the v. in the prior case doesn’t preclude the application collateral estoppel. Because the parties in the prior case don’t necessarily need to be adverse, the issue just needs to be decided against the party to be estopped.
Affirmed.
Landlord and Tenant were parties to an eminent domain proceeding brought by the LAUSD. As part of the judgment in that proceeding, the court decided the allocation of just compensation between them. Now, Landlord sued Tenants over the lease agreement, purporting to have the right to further adjustment.
But Landlord is collaterally estopped from doing so, because the allocation issue was decided in the prior case. The fact that both Landlord and Tenant were on the same side of the v. in the prior case doesn’t preclude the application collateral estoppel. Because the parties in the prior case don’t necessarily need to be adverse, the issue just needs to be decided against the party to be estopped.
Affirmed.
Never Mind
People v. Native Wholesale Supply Co., No. C084031 (D3 Jul. 12, 2019)
UCL case brought by the AG against a Company run by an Indian tribe for selling a boatload of illegal cigarettes. Bunch of Indian commerce issues that are beyond my ken. But briefly, two procedural issues to note.
UCL case brought by the AG against a Company run by an Indian tribe for selling a boatload of illegal cigarettes. Bunch of Indian commerce issues that are beyond my ken. But briefly, two procedural issues to note.
Thursday, July 11, 2019
Can't Collect on Half a Judgment
Newstart Real Estate Inv. LLC v. Huang, No. B292417 (D2d8 Jul. 3, 2019)
P wins a money judgment that includes punitive damages. The Court, however, issues a remittitur on punitives under Code of Civil Procedure § 662.5. P rejected it, resulting in a granted motion for a new trial. P appeals under § 904.1(a)(4). And while that’s proceeding, P starts to make efforts to collect on the compensatory part of the judgment.
The trial court shuts that down, reasoning that a grant of a new trial has the effect of vacating the whole judgment until retrial occurs and a single final judgment can be entered. The Court of Appeal agrees. You can only collect on a final judgment. When a new trial motion is granted, that vacates the judgment as a matter of law. That a retrial might ultimately be addressed only to the punitives and not to liability or compensatory damages is not relevant to the collectability issue.
Affirmed.
P wins a money judgment that includes punitive damages. The Court, however, issues a remittitur on punitives under Code of Civil Procedure § 662.5. P rejected it, resulting in a granted motion for a new trial. P appeals under § 904.1(a)(4). And while that’s proceeding, P starts to make efforts to collect on the compensatory part of the judgment.
The trial court shuts that down, reasoning that a grant of a new trial has the effect of vacating the whole judgment until retrial occurs and a single final judgment can be entered. The Court of Appeal agrees. You can only collect on a final judgment. When a new trial motion is granted, that vacates the judgment as a matter of law. That a retrial might ultimately be addressed only to the punitives and not to liability or compensatory damages is not relevant to the collectability issue.
Affirmed.
Monday, July 8, 2019
Lodestar for Lemons
Hanna v. Mercedes-Benz USA, LLC, No. B283776 (D2d7 Jun. 18, 2019)
I discussed the key issue in this case in my post on the Warren case last winter. A prevailing plaintiff in a Song-Beverly lemon law case is entitled to attorneys’ fees, calculated on a lodestar bases, even if that means the fee award vastly exceeds the damages. The court here failed to do that for a good chunk of the award, based on a misreading of plaintiff’s fee agreement with her attorney.
That was error.
Reversed and remanded.
I discussed the key issue in this case in my post on the Warren case last winter. A prevailing plaintiff in a Song-Beverly lemon law case is entitled to attorneys’ fees, calculated on a lodestar bases, even if that means the fee award vastly exceeds the damages. The court here failed to do that for a good chunk of the award, based on a misreading of plaintiff’s fee agreement with her attorney.
That was error.
Reversed and remanded.
Friday, July 5, 2019
Damages Remittitur Permitted for Partial Defect in Jury Award
Pearl v. City of L.A., No. B285235 (D2d7 Jun 18, 2019)
Plaintiff won a $17 million jury verdict against the City of LA on FEHA claims alleging that he had been harassed on the basis of his race and perceived sexual orientation. On the City’s motion for new trial, the trial court decided that at least part of the award for past non-economic damages was actually punitive. The Court believed the jury wanted to punish the City because so many of its witnesses committed perjury. It issued a remittitur under Code of Civil Procedure § 662.5, conditionally denying the new trial motion upon Plaintiff’s acceptance of a $5 million reduction in the verdict. Plaintiff took the deal.
On appeal, the City argues that once the trial court found that part of the jury’s verdict was improperly punitive, it was compelled to grant the new trial motion because that rendered the verdict defective as a matter of law. That’s not the case. In deciding a new trial motion on excessive damages, the trial court sits as an independent trier of fact. The court was entitled to find that only a portion of the award was improperly punitive, and to offer a remittitur to take that into account.
Affirmed.
Plaintiff won a $17 million jury verdict against the City of LA on FEHA claims alleging that he had been harassed on the basis of his race and perceived sexual orientation. On the City’s motion for new trial, the trial court decided that at least part of the award for past non-economic damages was actually punitive. The Court believed the jury wanted to punish the City because so many of its witnesses committed perjury. It issued a remittitur under Code of Civil Procedure § 662.5, conditionally denying the new trial motion upon Plaintiff’s acceptance of a $5 million reduction in the verdict. Plaintiff took the deal.
On appeal, the City argues that once the trial court found that part of the jury’s verdict was improperly punitive, it was compelled to grant the new trial motion because that rendered the verdict defective as a matter of law. That’s not the case. In deciding a new trial motion on excessive damages, the trial court sits as an independent trier of fact. The court was entitled to find that only a portion of the award was improperly punitive, and to offer a remittitur to take that into account.
Affirmed.
Instruments
Hilaly v. Allen, No. JAD19-05 (S.F. Super. App. Div. May 21, 2019)
Evidence Code § 622 creates a conclusive presumption regarding the truth of recitations of fact in a “written instrument.” “Instrument” is not defined, but “[a]s used in section 622, an ‘instrument’ usually refers to a contract, but may apply to contract-like writings, such as a commercial estoppel certificate that all parties understand is ‘a binding confirmation of a lease agreement.’” The informal tenant questionnaire at issue in this case, however, is not an instrument. It was neither supported by consideration nor the subject of mutual consent.
Affirmed.
Evidence Code § 622 creates a conclusive presumption regarding the truth of recitations of fact in a “written instrument.” “Instrument” is not defined, but “[a]s used in section 622, an ‘instrument’ usually refers to a contract, but may apply to contract-like writings, such as a commercial estoppel certificate that all parties understand is ‘a binding confirmation of a lease agreement.’” The informal tenant questionnaire at issue in this case, however, is not an instrument. It was neither supported by consideration nor the subject of mutual consent.
Affirmed.
Wednesday, July 3, 2019
Government Decisions Are Not Speech
Swanson v. Cnty. of Riverside, No. D075081 (D4d1 Jun 17, 2019)
A county’s decision to release an individual from a 72-hour mental health hold under the Lanterman-Petris-Short Act is not speech. So a claim based on the County’s allegedly negligent release of a mentally ill person—who proceeds to kill three people with a baseball bat shortly his release—is not a SLAPP. Enough said.
Affirmed.
A county’s decision to release an individual from a 72-hour mental health hold under the Lanterman-Petris-Short Act is not speech. So a claim based on the County’s allegedly negligent release of a mentally ill person—who proceeds to kill three people with a baseball bat shortly his release—is not a SLAPP. Enough said.
Affirmed.
No Facts, No Statement of Decision
Jackpot Harvesting, Inc. v. Applied Underwriters, No. H044953 (D6 Mar. 28, 2019)
Section 632 of the Code of Civil Procedure requires a court to follow a process to create a statement of decision when issuing an appealable order that decides a question of fact. More specifically, § 1291 requires the court to create a statement of decision when it enters an appealable order regarding arbitration. Plaintiff here complains that the trial court didn’t follow the process in denying its motion to compel and therefore that it erred. But the trial court didn’t find any facts―it just interpreted undisputed contractual provisions. Since that’s reviewed de novo, the Court of Appeal holds that the trial court’s somewhat sparse order denying the motion was adequate.
Affirmed.
Section 632 of the Code of Civil Procedure requires a court to follow a process to create a statement of decision when issuing an appealable order that decides a question of fact. More specifically, § 1291 requires the court to create a statement of decision when it enters an appealable order regarding arbitration. Plaintiff here complains that the trial court didn’t follow the process in denying its motion to compel and therefore that it erred. But the trial court didn’t find any facts―it just interpreted undisputed contractual provisions. Since that’s reviewed de novo, the Court of Appeal holds that the trial court’s somewhat sparse order denying the motion was adequate.
Affirmed.
Tuesday, July 2, 2019
No New Theories for Reversal
Cox v. Griffin, No. D074893 (D4d1 Apr. 17, 2019)
Plaintiff won a jury verdict on claims of IIED and false imprisonment, based on defendant’s having made a knowingly false police report. Problem is, Civil Code § 47(b) creates an absolute privilege for making police reports. So the trial court granted a jnov for defendant. There is an exception to § 47(b) for malicious prosecution claims. But Plaintiff neither plead, nor tried, nor instructed the jury on, a malicious prosecution claim.
And she can’t raise the issue for the first time on appeal. Generally, you can’t do that. There’s an exception for when the new theory is a pure issue of law based on undisputed evidence. (It’s also more likely to support an affirmance instead of a reversal.) But that’s not the case here. For instance, malicious prosecution requires a favorable termination as an element. IIED and false imprisonment do not. There was no evidence in the trial record whether criminal case filed against Plaintiff terminated in her favor. So she’s not entitled to a reversal of the jnov on that theory.
Affirmed.
Plaintiff won a jury verdict on claims of IIED and false imprisonment, based on defendant’s having made a knowingly false police report. Problem is, Civil Code § 47(b) creates an absolute privilege for making police reports. So the trial court granted a jnov for defendant. There is an exception to § 47(b) for malicious prosecution claims. But Plaintiff neither plead, nor tried, nor instructed the jury on, a malicious prosecution claim.
And she can’t raise the issue for the first time on appeal. Generally, you can’t do that. There’s an exception for when the new theory is a pure issue of law based on undisputed evidence. (It’s also more likely to support an affirmance instead of a reversal.) But that’s not the case here. For instance, malicious prosecution requires a favorable termination as an element. IIED and false imprisonment do not. There was no evidence in the trial record whether criminal case filed against Plaintiff terminated in her favor. So she’s not entitled to a reversal of the jnov on that theory.
Affirmed.
No-Contest Probate Petitions Are SLAPP-able
Key v. Tyler, No. B283979M (D2d2 May 7, 2019)
This anti-SLAPP appeal comes down basically the same way as 2017’s Urick v. Urick decision. At least on the first part of the analysis. It holds that a no-contest petition in a probate case is subject to an anti-SLAPP motion, because the petitioner is essentially suing someone for litigating. The Court recognizes that there are some good policy reasons to go the other way but finds that the existing statutory scheme makes a no-contest petition SLAPP-able. So its up to the Legislature to fix the issue.
But unlike Urick, the petitioner here made a showing of a likelihood of success. So the motion should have been denied nonetheless.
Reversed.
This anti-SLAPP appeal comes down basically the same way as 2017’s Urick v. Urick decision. At least on the first part of the analysis. It holds that a no-contest petition in a probate case is subject to an anti-SLAPP motion, because the petitioner is essentially suing someone for litigating. The Court recognizes that there are some good policy reasons to go the other way but finds that the existing statutory scheme makes a no-contest petition SLAPP-able. So its up to the Legislature to fix the issue.
But unlike Urick, the petitioner here made a showing of a likelihood of success. So the motion should have been denied nonetheless.
Reversed.
Monday, July 1, 2019
Discretion Under the Three Year Rule Is Not Unbounded
Corrinett v. Bardy, No. A153241 (D1d4 May 9, 2019)
This case was dismissed under the Code of Civil Procedure § 583.420’s discretionary three-years-to-trial rule. At the time it was dismissed, a trial date—about a month short of § 583.310’s mandatory five-year limit—had been set. The Court of Appeal holds that the trial court abused its discretion in dismissing this case. Some of the trial court’s factual findings were contradicted by the evidence—like accusing plaintiff of doing virtually nothing while the record reflected his active participation in discovery. And other valid excuses—such as documented severe illnesses by the plaintiff and his counsel—were ignored. So even though the standard of review is deferential, the trial court’s ruling was sufficiently arbitrary to merit reversal.
Reversed.
This case was dismissed under the Code of Civil Procedure § 583.420’s discretionary three-years-to-trial rule. At the time it was dismissed, a trial date—about a month short of § 583.310’s mandatory five-year limit—had been set. The Court of Appeal holds that the trial court abused its discretion in dismissing this case. Some of the trial court’s factual findings were contradicted by the evidence—like accusing plaintiff of doing virtually nothing while the record reflected his active participation in discovery. And other valid excuses—such as documented severe illnesses by the plaintiff and his counsel—were ignored. So even though the standard of review is deferential, the trial court’s ruling was sufficiently arbitrary to merit reversal.
Reversed.
Bad, But Not Prejudicial
D.Z. v. LAUSD, No. B283799 (D2d4 May 14, 2019)
This is a pretty rare reversal of a jury verdict due to a trial court’s erroneous exclusion of evidence under Evidence Code § 352’s prejudice vs. probative value balancing test. That’s generally reviewed with a substantial amount of deference. But what the trial court did here was pretty bad.
The case involves a teacher allegedly molesting a student. A key issue is whether the school was on notice that the teacher was a creep. The trial court, however, limited any evidence of other creepiness to the teacher’s physical acts. So the jury never heard, for instance, that the school knew about, but did not discipline, the teacher for his collection of inappropriate student photos or his lewd comments about a student’s breasts. That’s not ok.
Reversed.
This is a pretty rare reversal of a jury verdict due to a trial court’s erroneous exclusion of evidence under Evidence Code § 352’s prejudice vs. probative value balancing test. That’s generally reviewed with a substantial amount of deference. But what the trial court did here was pretty bad.
The case involves a teacher allegedly molesting a student. A key issue is whether the school was on notice that the teacher was a creep. The trial court, however, limited any evidence of other creepiness to the teacher’s physical acts. So the jury never heard, for instance, that the school knew about, but did not discipline, the teacher for his collection of inappropriate student photos or his lewd comments about a student’s breasts. That’s not ok.
Reversed.
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