* * *
Zakk v. Diesel, No. B284432 (D2d4 Mar. 24, 2019)
Supposed oral contract to pay a producer for movie sequels when he only worked on the original. Demurrers get sustained with leave over and over again. In his Third Amended Complaint, Plaintiff tweaks his theory to go from an overarching agreement to agree to compensation for the sequels, to more clearly explaining separate agreements from each film. The trial court said that was a sham, but the Court of Appeal disagrees. While there was certainly some refinement in the theory, the contract setup in the TAC was not completely inconsistent with that alleged in the three prior versions of the complaint, so the sham pleading rule didn’t apply.
Reversed.
* * *
JPMorgan Chase Bank, N.A. v Ward, No. D073378 (D4d1 Mar. 28, 2019)
When it rains it pours. Another sham pleading case. The doctrine generally prevents a party from saving a pleading by withdrawing a crucial allegation in a later amendment. Here, between versions of a complaint, the plaintiff got new counsel and proposes to amend to withdraw an allegation of mistake in order to switch legal theories to bring a claim based on the enforcement of a an agreement as written. But the sham amendment rule is predicated on the integrity of factual allegations, not legal theories. Presumably, parties can do better legal research and refine their theories in amending a complaint. So since the allegation was largely a legal conclusion and the premise of the withdraw is largely a change of legal theories, the rule does not apply.
Reversed.
* * *
Long v. Forty Niners Football Co., LLC, No. A142818 (D1d4 as modified Apr. 8, 2019)
Plaintiff filed a state case against the Forty Niners for getting shot in the parking lot at Candlestick Park. He then filed an identical federal case claiming diversity based on the conversion of the ’Niners from a California LP to a Delaware LLC. When the ’Niners suggested that Colorado River abstention merited staying the federal case in favor of the state, plaintiff dismissed the state case. But then the federal court later dismissed the federal case for lack of subject matter jurisdiction. (A Delaware LLC is not necessarily a citizen of Delaware.) Plaintiff then filed another state court case. By then, the statute had run on most of Plaintiff's claims.
Plaintiff claims tolling, but the superior court, and now the Court of Appeal, say no. This isn’t a case where Plaintiff made a good faith mistake about subject matter jurisdiction and then litigated for years in federal court, only for the jurisdictional defect to be belatedly recognized. His first state court case was jurisdictionally fine. There was no need to file the federal case, so equitable tolling does not apply. As the Court explains:
The doctrine of equitable tolling was not intended to burden a defendant or the courts with having to repeatedly re-start litigation of a case that was almost fully adjudicated, simply because the plaintiff had a last-minute change of mind about the forum.Reversed.
* * *
Zakaryan v. The Men’s Warehouse, Inc., No. B289192 (D2d2 Mar. 28, 2019)
This case addresses a split of authority between Larson—which held that you can’t split off part of a PAGA claim to arbitration and litigate the rest—and Esparza—which said the part of the claim that seeks unpaid wages, which go to the plaintiff and not to the DFEH, can be hived off and sent to arbitration. The Court here sides (mostly) with Larson, albeit for a slightly different reason. As the Court sees it (contrary to both Larson and Esparza) explained, the upaid wages are actually part of the PAGA penalty which would be paid to the government, along with a per week statutory fine. Since all of those claims are brought on a quasi qui tam basis, there’s no basis to split the claim and sent part if it to arbitration.
Affirmed.
No comments:
Post a Comment