Friday, February 21, 2020

Wage and Hour Double Dip

Grande v. Eisenhower Med. Ctr., No. E068730 (D4d2 Feb. 6, 2020)

Plaintiff is a nurse who works for a Temp Service who assigned her to work at Hospital. She brought a wage and hour class action against Temp Service in Santa Barbara Superior. A year later, Nurse sued Hospital, in Riverside Superior, for basically the same violations, albeit with a slightly different class period. Hospital sent Temp Service a letter demanding indemnification under the terms of their staffing agreement.

Four years later, the Sana Barbara case settled. Nurse got paid and Temp Service got a release. The record seems to reflect that the settlement amount was low because Temp Service had solvency issues. The court entered the settlement as a judgment, as is required for class actions in California.
Temp Service—still facing Hospital’s indemnification demand—then intervened in the Riverside case and sought dismissal based on the release or res judicata. The trial court held a bench trial on these issues and ultimately denied both defendants. Hospital wasn’t a release, even under the typically expansive “agents, officers, affiliates, etc.” in the release. And Hospital and Temp Service weren’t in privity, which precludes res judicata. Temp Service appealed and Hospital took a writ. 


The Court of Appeal affirms. On res judicata, the Court—relying on the Supreme Court’s 2015 decision in DKN Holdings—explains how joint and several liability and privity are not the same thing. The distinction is particular evident here, given that each defendant was responsible only for its own wage and hour violations. Given that, for instance, Temp Service could have defended its case by claiming that the violations were as a result of on-site conditions put in place by Hospital, it’s hard to say that the two defendants’ interests were sufficiently enough aligned that they could be in privity. 


Nor did the existence of the indemnity create privity. Indeed, that created a dis-alignment of interests that actually pushes in the other direction. Interestingly, the Court’s result here puts this case in some tension with the 2D’s 2018’s decision in Castillo which the Court here (likely correctly) explains applied a test for privity that is inconsistent with DKN Holdings.

So far as the release goes, despite the expansive listing of categories of releasees, none of them really encompass the provider-client relationship between the Temp Service and the Hospital. The defendants make a play at arguing that they are “affiliates” or “agents” of each other. But affiliates generally connotes some level of common control or interlinking equity interests. And agency requires a fiduciary relationship coupled with a measure of control. A vanilla contractual relationship is not enough to meet those ordinary definitions. And broader, more unusual definitions aren’t called for under edjusdem generis and noscitur a sociis-type rules of contractual interpretation.


Justice Ramirez dissents. He does not believe that Castillo is so wrongly decided that it is not worth following on stare decisis grounds. 


Affirmed. 




Thursday, February 20, 2020

Why Don't YOU Meet and Confer with Luke Dumas...

Dumas v. L.A. Cnty. Bd. of Supervisors, No. B288554 (D2d4 Feb. 18, 2020) 

This pro se civil rights case got dismissed after plaintiff failed to show for his depo a couple of times. Plaintiff raises a host of issues on appeal. (We know how that ends, right...) There are two procedural ones.

First, Plaintiff tried to disqualify the trial judge by filing a statement of disqualification under Code of Civil Procedure § 170.3. The trial court struck it under § 170.4(b) for being untimely and for failing to state a legally adequate basis for disqualification. A DQ order, however, isn’t appealable from a final judgment. The only way to challenge it is to take a writ, which needs to filed within ten days of the service of the order. Plaintiff here didn’t take a writ. So he can’t challenge the striking on appeal.


Second, prior to the dismissal, Defendant successfully demurred to some of Plaintiff’s claims without conducting a telephonic or in person meet and confer, as required by § 430.41. But § 430.41(a)(4) specifically states that a failure to meet and confer isn’t a basis to grant or deny a demurrer. So while the trial court could have sent the parties back to talk more before it decided the motion, its disinclination to do so has no meaningful effect on the appeal.


Affirmed.

Tuesday, February 18, 2020

Liberal Construction Carries the Day

K.J. v. L.A. Unified Sch. Dist., No. S241057 (Cal. Jan. 30, 2020)

An Attorney who represents a Kid suing LAUSD got held in contempt by the trial court for obstructing a court-ordered psychiatric exam of his client. The contempt citation was $750 and a day in jail. Attorney took a writ on the ruling. But while that was pending, the trial court then tacked on $16,111 of the LAUSD’s fees as a discovery sanction, payable by Attorney alone. The Court of Appeal granted a writ on the contempt, after which the trial court vacated that order. But it let the discovery sanction stand.

A sanction award over $5,000 is an appealable order under Code of Civil Procedure § 904.1(a)(11). Attorney’s attorney filed a notice of appeal. But the notice identified the applellant as the Kid, not the Attorney. LAUSD moved to dismiss the appeal, arguing that Kid had no standing because only Attorney got sanctioned. Court of Appeal agreed and dismissed the appeal for lack of jurisdiction. The Supreme Court granted review.

The timing of a notice of appeal is a strict requirement. Just one day late, you still lose. But the contents of a notice of appeal are liberally construed. The Court of Appeal thought the rule was not so liberal as to permit reading in a different, unnamed appellant. 

But the Supreme Court disagrees. The notice expressly identified the sanctions order, which everyone could tell imposed sanctions on Attorney, not Kid. The trial court arguments focused on the court’s authority to sanction attorney, not kid. And LAUSD didn’t argue it was somehow confused or mislead by the identification of the wrong appellant. Under the circumstances, it is permissible to read the notice as making an appeal on Attorneys belhalf.

Court of Appeal reversed.

Monday, February 17, 2020

Summary Judgment Notice Blues

Torres v. Design Grp. Facilities Sols., Inc., No. B294220 (D2d3 Feb. 13, 2020)

After Defendant filed a summary judgment motion, the Court gave Plaintiff a bunch of time to take discovery. The motion was ultimately denied. But some of what came out in the discovery was actually good for the Defendant. So it moved for reconsideration under Code of Civil Procedure § 1008, arguing that the new evidence that came to light after the SJ was filed merited reconsideration. The trial court granted the motion, agreed, and entered judgment for Defendant.

The Court of Appeal reverses. According to the Court, it was error for the trial court to permit Defendant to use § 1008 to sidestep the procedural protections of the summary judgment statute, § 437c. What defendant filed was, in effect, a new summary judgment motion. So it should have restarted the § 437c process instead of seeking reconsideration.

Reversed.

The Court here doesn’t mention it, but the reason this happened is because of the 75-day notice requirement for an summary judgment motion, which cannot be shortened without the parties agreement. Because you need to serve the file-ready version of the motion on the non-moving party so far out, there is not a good way to supplement the record with any evidence that comes out during the two months between the motion and when the opposition is due. So, faced with new information that came out after its motion, but before the hearing, Defendant here was stuck and then tried to fix it on reconsideration. But it seems like the better option would have been to withdraw the motion and refile it, to include the new evidence. If, of course, that was even possible given that an SJ motion also needs to be heard at least 30 days before trial.

Friday, February 14, 2020

Insurer Can Appeal No-Show Loss in Small Claims Case

Pac. Pioneer Ins. Co. v. Superior Court, No. S241057 (Jan. 30, 2020)

In a small claims case, Code of Civil Procedure § 116.710(c) permits both a defendant and his or her insurer to appeal a money judgment. But § 116.710(d) says a that defendant who failed to appear can’t appeal. Which begs the question: Can the insurer appeal if the defendant doesn’t show?


The answer is yes. The bar on appealing by defaulting defendants does not apply to their insurers. The statutory structure makes that reasonably clear. And in the event of any doubt, the legislative history explains that the point of giving insurers standing is that sometimes an insured defendant might take the moral hazard and not bother to defendant a small claims case.


Reversed.

Thursday, February 13, 2020

Not Very Hard Road to Arb.

Philadelphia Indem. Ins. Co. v. SMG Holdings, Inc., C082841 (D3 Jan. 28, 2020)

Entity X claims coverage under an insurance policy as an additional insured. The policy has an arbitration clause. Even though X never signed the policy, it can be compelled to arbitration, whether as a third party beneficiary or under an estoppel theory. 

Reversed.

Wednesday, February 5, 2020

A Hard Road to Ditch a Bum Felon Jacket

Roger v. Cnty of Riverside, No E070776 (D4d2 Jan. 22, 2020)

Plaintiff in this case is a surgeon who got thrown in jail for civil contempt when he refused to produce some patient records. The county running the jail created a record that he had been jailed for a felony conviction. Which isn’t true. Civil contempt is civil—notwithstanding the custody, it’s not even a misdemeanor. The felony rap lead plaintiff to losing work and other difficulties. Plaintiff sued the County for § 1983, defamation, and other claims relate to the false recording of him as a felon.

A bunch of the appeal deals with code claim processing issues that are beyond my coverage. Suffice it to say that an SJ on them gets reversed. But there are three procedural points of note.

First, during the litigation, the County ultimately fixed the plaintiff’s record by manually recording it as a civil confinement in its system. It argued that make the plaintiff’s claims for declaratory relief and writ of mandate moot. But there was no admissible evidence (see #2) that the County had implemented a procedure to ensure it correctly documented civil confinements in the future. Given the immense consequences of a felony rap, that failure was of sufficient public importance to merit an exception from the mootness doctrine on these claims.

Second, it arguing mootness, the County put in a declaration stating that based upon the declarant’s understanding, the court system had fixed the way it documented civil contempts. But a declarant’s “understanding” is not personal knowledge. It is instead a form of information and belief. It thus is not competent summary judgment evidence under Code of Civil Procedure § 437c(d), which requires declarations on personal knowledge. 

Third, the Court reverses a demurrer on a § 1983 Monell claim, where plaintiff had alleged that the County knew it didn’t have any procedure to accurately book inmates for civil contempt and thus that the way it trained its employees was deliberately indifferent to inmates civil rights. The Court of Appeal finds that, notwithstanding the relatively high level of generality, that allegation was an adequate statement of “ultimate facts” to satisfy the fact pleading standard. As the court explains, the standard is contextual—plaintiffs are under a lesser obligation of specificity when the facts address issues within the knowledge of the defendant.

Reversed.

Tuesday, February 4, 2020

A Private Dispute on the Internet Is Not a Public Issue

Jepson v. Ley, B292166 (D2d8 Jan. 30, 2020)

This is a defamation case over a blog post related to a neighborhood dispute. One neighbor called the other, essentially, a well-armed jerk. Litigation ensued. The poster claims the case is a SLAPP. But it’s not. A private dispute between neighbors is not an issue of public interest, even if it spills out on to the Internet. So the claim does not satisfy Code of Civil Procedure § 425.16(e)(3) or (4).


FWIW, this opinion has a very solid summary of the public issue case law in the runup to, and including, the Supreme Court’s recent decision in FilmOn.

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...