tag:blogger.com,1999:blog-87764740587450672292024-03-17T22:40:56.659-07:00111 North Hill StreetA BLOG OF CALIFORNIA CIVIL PROCEDUREMichael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.comBlogger1306125tag:blogger.com,1999:blog-8776474058745067229.post-81656259724338621902024-03-13T08:00:00.000-07:002024-03-13T08:00:00.132-07:00Arguably Unauthorized Settlement Is Voidable, Not Void, under Code of Civil Procedure § 437(d).<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/A167137.PDF" target="_blank"><i>W. Bradley Electric, Inc. v. Mitchell Engineering</i>, No. A167137 (D1d5 Feb. 28, 2024)</a></span></p><p><span style="font-family: verdana;">Fatal traffic accident case where the Decedent’s family sued three Defendants—driver, the rideshare company she was working for, and a Contractor who had done some work on the sidewalk where she was walking. Contractor proceeded to cross-claim against two other companies (who appear to be other contractors) for equitable indemnification. As is the usual course in these kinds of things. everybody eventually sued everyone. Plaintiffs eventually settled with the new contractors for $10k a pop.</span></p><p><span style="font-family: verdana;">Contractor’s lawyers propose to their client that they make a similar $10k offer, and then that the settle the remaining contractor cross-claims for and agreement that the settlements are reasonable under Code of Civil Procedure § 877.6, and dismissals and fee waivers. That gets papered and the dismissals filed. Then the rest of the case settles.</span></p><p><span style="font-family: verdana;">Six months later, Contractor moves to vacate the dismissals of the other contractors as, among other reasons*, void under § 473(d), based on an assertion that the client never consented to its attorneys’ agreement to dismiss. The evidence of permission (Contractor appears to have waived privilege) was not entirely clear. But the trial court denied the motion. Contractor appeals.</span></p><p><span style="font-family: verdana;">The Court of Appeal finds that Contractor probably forfeited the § 473(d) by failing to squarely raise it in the trial court. But nonetheless, it reaches the merits. </span></p><p><span style="font-family: verdana;">Canvassing the authority, the Court finds that a settlement entered without clear permission from a client is probably void<i>able</i> but not <i>void</i> and thus not subject to vacation under </span><span style="font-family: verdana;">§ 473(d)</span><span style="font-family: verdana;">. The latter mostly deals with situations where the court never had jurisdiction to act. There’s an outlier case where the Court found that an attorney’s dismissal <i>with</i> prejudice, when the client only authorized a <i>without prejudice </i>dismissal was void under § 473(d). <i>Romadka v. Hoge,</i> 232 Cal. App. 3d 1231 (1991). But subsequent cases have recognized that <i>Romadka</i> really was faced with a case of attorney mistake that could be remedied under § 473<i>(b), </i>and not with an actually void judgment that could be vacated under § 473(d).</span></p><p><span style="font-family: verdana;">And in any event, the Court of Appeal finds that there was adequate evidence that Contractor had actually ratified the dismissal, and also that denying relief under § 473(d) was not an abuse of discretion.</span></p><p><span style="font-family: verdana;">Affirmed.<br /></span></p><p><span style="font-family: verdana;">*Contractor also moved to vacate the dismissal as a result of attorney mistake, surprise, neglect, etc., under § 473(b). The court deals with that in an unpublished part of the opinion, so I’m not going to get into it. </span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-72633799013859080692024-03-12T08:00:00.000-07:002024-03-12T08:00:00.132-07:00Is Code of Civil Procedure § 1281.98 Prempted by the FAA?<p><a href="https://www.courts.ca.gov/opinions/documents/B327524.PDF" style="font-family: verdana;" target="_blank"><i>Hohenshelt v. Superior Court</i>, No. B327524 (D2d8 Feb. 27, 2024)</a><span style="font-family: verdana;"><br /></span></p><p><span style="font-family: verdana;">This is another case where an employer in an arbitration was late in paying the arbitrator’s fee so the employee moved to go back to litigating her case in court under Code of Civil Procedure § 1281.98. The employer here was clearly late under the relevant standard, and a <a href="https://caccp.blogspot.com/2023/06/pay-arb-or-go-to-back-to-court.html" target="_blank">bunch</a> of <a href="https://caccp.blogspot.com/2023/09/pay-to-play.html" target="_blank">recent</a> <a href="https://caccp.blogspot.com/2022/08/pay-up-or-back-to-court.html">cases</a> are good authority that the upshot of that is that the employee does not need to arbitrate any more. <br /></span></p><p><span style="font-family: verdana;">Employer argues, after a prompting for supplemental briefing, that the FAA preempts § 1281.98. The Court rejects that argument, based on the idea that § 1281.98 is an arbitration <i>procedure </i>statute that furthers, not dissuades against, arbitration by incentivizing parties to pay up and participate in full. So the Court of Appeal grants a writ ordering the litigation to proceed.</span></p><p><span style="font-family: verdana;">Justice Wiley dissents. He notes that California state courts don’t have the greatest record predicting how the US Supreme Court will rule on the preemption of anti-arbitration state laws under the FAA. Following a federal case district court case, <i>Belyea v. GreenSky, Inc.</i>, 637 F. Supp. 3d 745, 759 (N. D. Cal. 2022), he notes that § 1281.98 can’t really <i>encourage</i> arbitration when its chosen enforcement method is to effectively invalidate an agreement to arbitrate. </span></p><p><span style="font-family: verdana;">Setting aside whether SCOTUS’s manic desire to force arbitration on every employee and consumer is the right take on the law, Justice Wiley is clearly onto the the trend. Would not be surprised to see a cert grant on this in the next year or two.<br /></span></p><p><span style="font-family: verdana;">Writ granted.</span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-37974090313113572542024-03-11T10:42:00.000-07:002024-03-11T10:42:33.536-07:00CCP § 998 Shifts Fees for Worse-Off Settlements<p><span style="font-family: verdana;"><a href="Ayer" target="_blank"><i>Ayers v. FCA US, LLC</i>, No. B315884 (D2d8 Feb. 27, 2024).</a></span></p><p><span style="font-family: verdana;">This is a Lemon Law case involving dueling offers under Code of Civil Procedure § 998. Manufacturer made one offer. Then it made a second higher offer. And then a third that was even higher. Years go by. Then the Court of Appeal decided a case that said that if the Consumer subsequently trades the car in, the trade in value gets deducted from the cost basis that (trebled) sets the maximum damages amount. If good law,* that would lower Plaintiff’s damages by about $40k. Plaintiff then made an offer of his own, which was higher than Manufacturer’s second offer but lower than its third. Manufacturer took the deal.</span></p><p><span style="font-family: verdana;">Plaintiff subsequently moved for attorneys fees, which in Lemon Law cases can <a href="https://caccp.blogspot.com/2018/12/they-come-in-groups.html" target="_blank">significantly</a> <a href="https://caccp.blogspot.com/2018/12/all-about-lodestar.html">exceed</a> the Consumer’s recovery. Manufacturer argued, however, that the fees should be cut of at the point of its third § 998 offer, because that offer was for more money than the Consumer actually got when his own offer was accepted. The trial court ruled that § 998’s cost-shifting rule does not apply to a case that is concluded by a settlement, as opposed to a trial, and declined to tax the fees. Manufacturer appealed.</span></p><p><span style="font-family: verdana;">There’s a case on this point from last year. <i>See Madrigal v. Hyundai Motor America, </i>90 Cal. App. 5th 385 (2023). Over a dissent, it held that § 998(c)(1)’s imposition of fee shifting if the plaintiff “fails to obtain a more favorable judgment or award” applies when the “award” is obtained by plaintiff under a settlement, instead of a judgment. A concurring and dissenting opinion disagreed, reasoning that when parties resolve a case pursuant to a settlement nobody succeeds or fails at anything. A deal is just struck. The Supreme Court granted review of <i>Madrigal</i> last August.** The Court, as it now often does, ruled that pending review, <i>Madrigal </i>could be cited for both its persuasive value and for the existence of a conflict in the Court of Appeal under the <i>Auto Equity Sales</i> rule.</span></p><p><span style="font-family: verdana;">The Court here agrees with the <i>Madrigal</i> majority, finding that “a plain reading of section 998, subdivision (c)(1) compels the conclusion that it applies to any litigation that terminates with the plaintiff getting less than he would have if he had accepted the defendant’s earlier section 998 offer.” The Court goes through a number of policy rationales and rejects the Consumer</span><span style="font-family: verdana;">’s assertion that applying </span><span style="font-family: verdana;">§ 998 to a case that ends in a settlement itself discourages settlement. Perhaps the most convincing point the court makes is that a settling party that doesn</span><span style="font-family: verdana;">’t want to be subject to fee shifting based on a prior </span><span style="font-family: verdana;">§ 998 offer is always free to demand that fee shifting be excluded from the terms of any settlement.</span></p><p><span style="font-family: verdana;">Justice Viramontes concurs and dissents.</span></p><p><span style="font-family: verdana;">He largely agrees with the concurrence and dissent in <i>Madrigal</i>. He thinks, at minimum, that the majority</span><span style="font-family: verdana;">’s </span><span style="font-family: verdana;">“plain reading</span><span style="font-family: verdana;">” of </span><span style="font-family: verdana;">§ 998(c)(1) is not dispositive because it is susceptible to a construction based on the idea that a settlement can</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’t be a failure.</span><span style="font-family: verdana;"></span><span style="font-family: verdana;"> “[A]</span><span style="font-family: verdana;">t the very least, the statute’s use of those words calls into question whether a settlement for less than the unaccepted offer equates to a failure to obtain a more favorable judgment under section 998(c)(1).</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">” Looking into the purpose and legislative history animating </span><span style="font-family: verdana;">§ 998, he finds that the available evidence, albeit slim, suggests that the statute is intended to apply only when a settlement offer isn</span><span style="font-family: verdana;">’t bested by a subsequent adjudication, not just a later settlement.</span></p><p><span style="font-family: verdana;">Affirmed.</span></p><p><span style="font-family: verdana;">*, ** A week after this case was decided, the Supreme Court issued an opinion in <i><a href="https://www.courts.ca.gov/opinions/documents/S266034.PDF">Niedermeier v. FCA</a></i>, holding that trade in value does <i>not</i> merit a deduction from Lemon Law damages. Entering a settlement based on assumptions about the law that subsequently change, however, does not generally invalidate the settlement. Of course,<i> </i>review has also been granted in <i>Madrigal. </i>Plaintiff here can likely get a grant-and-hold based on that and if <i>Madrigal</i> is reversed, Plaintiff can likely get a reversal of the ruling on </span><span style="font-family: verdana;">§ 998 fee shifting. But it is still really doubtful that he could blow up the whole settlement based on incorrect assumptions of pre-<i>Niedermeier</i> law. </span></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-13540758065879364962024-03-08T16:48:00.000-08:002024-03-08T16:50:08.092-08:00Paper Record Still Merits Deference on Appeal of Factual Findings <p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/F085918.PDF" target="_blank"><i>Jones v. Solgen Construction, LLC</i>, No. F085918 (D5 Feb. 26, 2024).</a></span></p><p><span style="font-family: verdana;">A shady Solar Seller claims to have sold a rooftop solar setup to an 81-year-old Lady in Fresno. Lady lives on $1,000 per month in social security, but apparently agreed to take out a $52k, 25-year loan from Lender, Solar Seller’s financing partner. Lady sued, claiming fraud and other related stuff. The loan documents included an arbitration clause. Lender and Solar Seller moved to compel arbitration.<br /></span></p><p><span style="font-family: verdana;">The parties’ versions of the relevant events are, to say the least, hotly in dispute. Lady says she thought she was entering a government program that was supposed to cap her electric bills in exchange for putting some solar panels on her roof. She never would have agreed to a long term loan that would not be paid off till she was 106. Lady didn’t recall signing a contract, and certainly not a contract containing those terms. Solar Seller and Lender say that Lady DocuSigned a loan agreement and have a video where she (somewhat hesitantly and with a confused affect) acknowledges that. The details of that aren’t really super important, but it should suffice to say that there was evidence upon which the court could probably have gone either way.</span></p><p><span style="font-family: verdana;">One piece of that evidence is the DocuSigned contract. Solar Seller made a somewhat inscrutable hearsay objection to it. Not for the contract itself. After all, if not admitted, the lack of a contract pretty much precludes an arbitration argument. But for a stamp on the DocuSign certificate that showed Lady reviewed the 21-page contract for a whopping 38 seconds before she allegedly e-signed it. </span></p><p><span style="font-family: verdana;">But Lender had put in a declaration establishing business records foundation under Evidence Code § 1271. The declaration did a good job of establishing why the DocuSign process was a reliable and trustworthy way to generate business records. That being the case, there was no error in considering the time stamps.</span></p><p><span style="font-family: verdana;">Solar Seller also says that the trial court erroneously refused to consider a customer service recording between Lady and a customer service rep, which it submitted in connection with its reply brief. But the record doesn’t actually substantiate that is what happened. The trial judge <i>asked</i> why the recording was submitted on reply. Solar Seller gave an answer. Then the discussion moved on. Nowhere does the record reflect that the court <i>refused</i> to consider the recording. And the fact that the court didn’t expressly refer to it in its written ruling doesn’t change that fact. The appellant bears the burden of coming forward with a record of error. Silence merits a presumption that the trial court was correct.</span></p><p><span style="font-family: verdana;">Finally, the big issue is whether the court correctly found by a preponderance of the evidence that there was no binding agreement to arbitrate. Again, the substance of this debate is too fact-specific to be interesting. But there <i>is</i> an interesting debate about the standard of review. </span></p><p><span style="font-family: verdana;">A finding of fact is typically reviewed for substantial evidence. But specific to this context, the weight of the authority treats an appeal of a finding that a party failed to meet its burden of proof like an appeal of a denial of a plaintiff’s JNOV. That is, was the plaintiff’s evidence so overwhelming that any reasonable trier of fact would find in its favor, and thus that the court was <i>required </i>to find that it met its burden as a matter of law? If that’s the standard, the question here isn’t too hard, because the Solar Seller and Lender’s evidence isn’t <i>that</i> good.</span></p><p><span style="font-family: verdana;">But there are some cases that suggest that when the record before the trial court was entirely written—as it was here—an appellate court can re-weigh the evidence de novo. <i>See Patterson v. ITT Consumer Financial Corp.</i>, 14 Cal. App. 4th 1659, 1663 (1993); <i>Milazo v. Gulf Ins. Co., </i>224 Cal. App. 3d 1528, 1534 (1990). The theory is that, on a paper record, an appellate court is equally well situated to find the facts. </span></p><p><span style="font-family: verdana;">But the Court here does a good job of unspooling that those cases are not reasoned and authority they rely upon does not actually support the stated proposition. They instead stand for the much less sweeping point that an appellate court is equally well situated to interpret the language of a contract when no parol evidence is at play. That is the kind of mistake that appellate courts sometimes make, and I have <a href="https://caccp.blogspot.com/2015/09/from-bum-seed-forrest-grows.html#more" target="_blank">complained about it previously.</a> So kudos to the Court here for digging in. And in any event, the Supreme Court has repeatedly held that a deferential standard of review applies to a trial court’s fact-finding, regardless of whether it is based on oral testimony or a written record.</span></p><p><span style="font-family: verdana;">That being the case, the evidence was no so overpowering that the existence of an agreement was established as a matter of law.</span></p><p><span style="font-family: verdana;">Affirmed.</span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-20241662245573023692024-02-29T11:20:00.000-08:002024-03-02T21:41:51.474-08:00Pay Those Jury Fees!<p><span style="font-size: medium;"><a href="https://www.courts.ca.gov/opinions/documents/S273368.PDF" style="font-family: verdana;" target="_blank"><i>Tricoast Builders v. Fonnegra</i>, No. S273368 (Cal. Feb. 26, 2024)</a></span></p><p><span style="font-family: verdana; font-size: medium;">The State Constitution says that a jury trial can be waived only by means proscribed by a statute. In most instances, that statue is Code of Civil Procedure § 631. It lists various ways to waive, including a failure to timely demand a jury and failure to timely post jury fees. It also affords a trial court the discretion to nonetheless permit a jury trial, even if waived, “upon just terms.” § 631(g).</span></p><p><span style="font-family: verdana; font-size: medium;">Here, Plaintiff clearly waived. It never demanded a jury or posted fees. But Defendant did, only to expressly waive jury on the day of trial. Plaintiff argues, however, that absent harm to the Plaintiff, it was entitled to have its waiver excused under § 631(g). But—canvassing the authority—the Court finds that prejudice to the opposing party isn’t the only grounds to deny relief from a waiver. In particular, most of the cases that grant relief based on lack of prejudice do so to excuse technical failures that lead to waiver, like posting an incorrect amount of fees. In those cases, the discretion to excuse a waiver is generally broadly exercised. But in other cases—where excuse is sought tardily or for tactical advantage, where the prior waiver was express, and where the party lacked good reason to seek relief—denial of relief has been affirmed.</span></p><p><span style="font-family: verdana; font-size: medium;">The facts here aren’t so clear. Plaintiff clearly prepared for a jury trial, because Defendant had heretofore demanded one, and up to the trial date, that was everyone expectation. So the timing of its belated request for an excuse wasn’t the kind of gamesmanship that usually merits denial of relief. The Supreme Court finds the record unclear, and, as we shall see, finds other grounds to affirm anyway. But it offers some dicta for the benefit of litigants in similar situations.</span></p><p><span style="font-family: verdana; font-size: medium;">1. Each side is required to make its own jury demand and to timely post fees. Nothing stops a party that complied with that requirement, when the other side didn’t, from dropping its demand in the eve of trial.<br /></span></p><p><span style="font-family: verdana; font-size: medium;">2. But when that happens, the other side can seek excuse under § 631(g).</span></p><p><span style="font-family: verdana; font-size: medium;">3. In considering that request, the court can consider the circumstances of the belated waiver by the demanding party, such as whether it was tactical, potential unfairness to the non-demanding party, who went to the trouble of preparing for a jury trial, and whether the non-demanding party could have protected its options by posting its own fees.</span></p><p><span style="font-family: verdana; font-size: medium;">Regardless, an erroneous denial of § 631(g) isn’t structural error, like the wrongful denial of a jury, properly demanded. There is a difference between the erroneous denial of a jury and the erroneous denial of a relief from waiver. The State Constitution, after all, does recognize that a jury trial can be waived. And given that a denial of relief from waiver is not structural error, under article VI, section 13 of the Constitution, an appellant must show prejudice resulting from the error to obtain a reversal. Which Plaintiff here can’t do. The court notes that a</span><span style="font-family: verdana; font-size: medium;"> party wrongfully denied a jury (including a wrongfully denied request for relief under </span><span style="font-family: verdana; font-size: medium;">§ 631(g)) </span><span style="font-family: verdana; font-size: medium;"> has
recourse to a writ. Indeed, state courts have been historically willing
to take up writs on that ground, even though writ review is
discretionary. </span></p><p><span style="font-family: verdana; font-size: medium;">Court of Appeal affirmed. </span></p><p><span style="font-family: verdana; font-size: medium;">This all makes basic sense. But there is a clear, unspoken upshot of the prejudice requirement. </span></p><p><span style="font-family: verdana; font-size: medium;">If relief from waiver </span><span style="font-family: verdana; font-size: medium;">§ 631(g) </span><span style="font-family: verdana; font-size: medium;">is denied, and it matters to you, you <i>must</i> take a writ. Post-judgment proof of prejudice in these circumstances is essentially<i> impossible</i>, as it requires an attack on one of the most basic collective assumptions that our judicial system relies on to maintain its legitimacy—that juries can’t be hoodwinked. Given that assumptions, you can basically <i>never</i> establish, <i>ex post</i>, that a case would have had a different result but for it had been tried to a jury instead of a judge. The system fundamentally cannot accept the argument that “if only I got a chance to bamboozle 9 out of 12 ordinary citizens, instead of that cynical trial judge, I would have won.” And in any event, the counterfactual is basically </span><span style="font-family: verdana; font-size: medium;">unprovable. What are you going to do, interview a bunch of imaginary jurors who were never actually called an put in their affidavits under Evidence Code </span><span style="font-family: verdana; font-size: medium;">§ 1150?<br /></span></p><p><span style="font-family: verdana; font-size: medium;">You can, of course, say in an appeal that a trial judge who denied relief under</span><span style="font-family: verdana; font-size: medium;"></span><span style="font-family: verdana; font-size: medium;"> § 631(g) also</span><span style="font-family: verdana; font-size: medium;"> screwed up the facts or the law, or was unfairly biased, or raise any other error under the applicable
standard of review. But if that’s what happened <i>that</i> is the grounds for appeal, not denial of the relief from waiver of a jury trial. </span></p><p><span style="font-family: verdana; font-size: medium;">Justice Kruger is certainly smart enough to know this. Which means the issue is likely to never reach the Court again for lack of provable prejudice. Hence the dicta. </span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-6659635842310674702024-02-12T12:30:00.000-08:002024-02-12T12:30:08.036-08:00In Search of Administrative Finality<p><span style="font-size: medium;"><a href="https://www.courts.ca.gov/opinions/documents/B328414.PDF" style="font-family: verdana;" target="_blank"><i>Jackson v. Board of Civil Service Comm</i>’<i>rs of the City of L.A.</i>, No. B328414 (D2d7 Feb. 8, 2024)</a></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">This one is pretty deep into the weeds in the intersection of administrative law and appellate jurisdiction. But since<a href="https://casetext.com/case/meinhardt-v-city-of-sunnyvale-1"> I have a case before the Supreme Court</a> in that same neighborhood, it’s interesting to me, at least.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">Petitioner is an LAPD Officer who got disciplined for being late to a shift under what sound like some not so great circumstances. He was suspended from duty for 10 days. He challenged the suspension administratively, and when he lost, filed an administrative appeal, which he also lost. </span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">Officer filed a petition for writ of administrative mandate in LA Superior, raising sufficiency of the evidence and due process issues regarding the administrative process because LAPD’s justification for the discipline apparently evolved over the course of the administrative hearings. The superior court found that the evidence supported three of the four charges but that the administrative process had failed in some respects to appropriately account for Petitioner’s due process rights as a public employee. It remanded to the administrative system to address that issue. Petitioner appealed.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">A threshold question on appeal is whether the trial court’s remand to the administrative process counts as a “final judgment” that can be appealed under Code of Civil Procedure § 904.1(a). That would seem to be an easy question because there</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’s a 2017 Supreme Court decision that held that a judgment that remands to the agency is sufficiently final to be appealable. </span></span><span style="font-size: medium;"><span style="font-family: verdana;"><i>Dhillon v. John Muir Health,</i> 2 Cal. 5th 1109 (2017). But the Court here finds <i>Dhillon</i> to be distinguishable. </span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">As the Court sees it, </span></span><span style="font-size: medium;"><span style="font-family: verdana;"><i>Dhillon </i>found finality for two reasons. First, in <i>Dhillon</i>, the superior court</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’s remand decided everything before it. It didn</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’t reserve any issues for itself during the remand. That</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’s true here as well.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">But <i>Dhillon</i></span></span><span style="font-size: medium;"><span style="font-family: verdana;">’s second basis for finding finality had to do with the particular procedural posture of that case. There, a hospital</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’s </span></span><span style="font-size: medium;"><span style="font-family: verdana;">administrative review board was reviewing the discipline of a physician. The review board determined that the physician was not entitled to receive a hearing. On a writ of administrative mandate, the superior court disagreed and remanded for the hearing to be held. In that case, the Supreme Court explained, if the remand order weren</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’t appealable, the hospital would have no avenue to review the superior court</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’s order that a hearing was required. </span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">The Court here finds that to be a distinguishing factor. Here, following the remand, the Officer will be able to file a new or renewed writ petition, and, should that be decided against him, appeal any adverse ruling subsumed into a post-remand judgment. See generally </span></span><span style="font-size: medium;"><span style="font-family: verdana;">Code of Civ. Proc. § 906 (appeal of final judgment permits review of any intermediate ruling, provided that ruling substantially affected the appellant</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’</span></span><span style="font-size: medium;"><span style="font-family: verdana;">s rights). </span></span><span style="font-size: medium;"><span style="font-family: verdana;">That includes issues affirmed by the superior court on this petition. The Court relies on a pre-<i>Dhillon</i> Court of Appeal opinion—<i>Kumar v. National Medical Enterprises, Inc.</i> (1990) 218 Cal. App. 3d 1050</span></span><span style="font-size: medium;"><span style="font-family: verdana;">—that makes that very point. As the Court notes, although there is some superficial tension, the Supreme Court distinguished <i>Kumar</i> on the same ground the Court here is distinguishing <i>Dhillon. </i>In this case and in <i>Kumar,</i> the petitioner whose case is administratively remanded will ultimately have an opportunity to appeal anything adversely decided.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">The Court finds all this to be consistent with federal practice, which, although not identical to California</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’s, nonetheless applies analogous principles in assessing the finality of administrative action for appeal. In doing so, the Court notes that in this context, the <i>agency</i> sometimes has the right to appeal a remand order, but the affected individual, almost never does.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">Finally, although the Court has the discretion to treat a premature appeal as a writ petition, it declines to do so here. This is not a case of great public interest. It is, instead, a largely fact-bound question regarding the manner in which the Officer was disciplined. So the Officer needs to wait for a ripe appeal.<br /></span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">Appeal dismissed.</span></span></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-43917193274090724562024-01-25T12:27:00.000-08:002024-01-25T13:08:22.636-08:00A Claim Is a Claim Is a Claim<p><span style="font-size: medium;"><a href="https://www.courts.ca.gov/opinions/documents/C095426.PDF" style="font-family: verdana;" target="_blank"><i>Miszkewycz v. County of Placer</i>, No. C095426 (D3 Jan. 25, 2024)</a></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">As we <a href="https://www.courts.ca.gov/opinions/documents/C095426.PDF" target="_blank">discussed last summer</a>, there’s a developing split of authority over what a defendant bringing an anti-SLAPP motion needs to do to raise an argument (perhaps in the alternative) that a “claim”—a distinct theory of liability— arises from protected liability, even if the whole case doesn’t. Some call that a <i>Bonni</i> argument, based on the Supreme Court case that laid out how it works, procedurally. <i>Park v. Nazari</i> said to make a <i>Bonni</i> argument, the moving party needs to identify <a href="https://www.courts.ca.gov/opinions/archive/B320483.PDF" target="_blank">“in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim.”</a> My take was that <i>Park</i> essentially required the moving party to follow Rule of Court 3.1322, which demands that the notice of motion for a traditional motion to strike needs to identify, line by line and word by word, the precise material the movant wants stricken.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">But now the Court of Appeal says it’s <i>not</i> necessary to follow Rule 3.1322. The Court notes that, although <i>Bonni</i> analogized an anti-SLAPP to a traditional motion to strike, nowhere did the Supreme Court suggest that the similarity required compliance with Rule 3.1322. Moreover, some of the the text of 3.1322, including references to the timing in which a motion to strike must be brought, clearly apply to a traditional motion to strike, not an anti-SLAPP. So Rule 3.1322 does not apply to anti-SLAPP motions. <br /></span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">Here, the moving defendant’s brief explained that the complaint at issue presented two theories of liability and argued that one of them arose from protected activity. That</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’</span></span><span style="font-size: medium;"><span style="font-family: verdana;">s all that defendant needed to do to make a <i>Bonni </i>argument. So the trial court erred.<br /></span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">The Court goes on, in an unpublished part of opinion to nonetheless affirm the denial of the motion on the merits.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">Affirmed.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">I think the court gets it right here. The antecedent of </span></span><span style="font-size: medium;"><span style="font-family: verdana;">Rule 3.1322</span></span><span style="font-size: medium;"><span style="font-family: verdana;">—</span></span><span style="font-size: medium;"><span style="font-family: verdana;">old Rule 329</span></span><span style="font-size: medium;"><span style="font-family: verdana;">—was </span></span><span style="font-size: medium;"><span style="font-family: verdana;">enacted in 1984. It pre-dates the anti-SLAPP statute by a decade and a half. If the Legislature or the Judicial Council wanted Rule 3.1322 to apply to anti-SLAPP motions, they have had twenty years to say so.</span></span></p><p><span style="font-size: medium;"><span style="font-family: verdana;">That said, </span></span><span style="font-size: medium;"><span style="font-family: verdana;">cases like this one say you can satisfy <i>Bonni</i> with an explanation of a </span></span><span style="font-size: medium;"><span style="font-family: verdana;">“claim” in your brief, while others say you need to identify specific paragraphs or sentences, even if they don</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’t formally demand compliance with Rule 3.1322. U</span></span><span style="font-size: medium;"><span style="font-family: verdana;">ntil the Supreme Court weighs in on this issue, we</span></span><span style="font-size: medium;"><span style="font-family: verdana;">’re in an <i><a href="http://caccp.blogspot.com/2013/07/depublication-can-change-law-and-some.html">Auto Equity</a></i> situation where there is no way to predict what rule a trial court will apply. That being the case, safest bet is to do both.</span></span><span style="font-size: medium;"><span style="font-family: verdana;"><br /></span></span></p><p><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-78792996450939083042024-01-19T15:33:00.000-08:002024-01-20T20:36:58.324-08:00Experts, Standards of Review, and Meta-Evidence<p><span style="font-size: medium;"><a href="https://www.courts.ca.gov/opinions/documents/D082229.PDF" style="font-family: verdana;"><i>Garner v. BNSF Railway Co.</i>, No. D082229 (D4d1 Jan. 4., 2024)</a></span></p><p><span style="font-family: verdana; font-size: medium;">This is a wrongful death case where decedent’s family claims that exposure to diesel exhaust while working as a railroadman caused the non-Hodgkin</span><span style="font-family: verdana; font-size: medium;">’s lymphoma that lead to his death. In the run-up to trial, the Company moved in limine to exclude Plaintiff</span><span style="font-family: verdana; font-size: medium;">’s </span><span style="font-family: verdana; font-size: medium;">general causation experts for failing to satisfy the <i>Sargon</i> standard. </span></p><p><span style="font-family: verdana; font-size: medium;">Plaintiffs put up three experts on this point. Generalizing a bit, each testified that diesel exhaust was an established cause of cancer. They pointed to, among other things, epidemiological studies that showed that the exposure could lead to three to four thousand excess cancers per million people, which is clearly significant. But that was cancer in general. None of the experts, however, pointed to any study that linked <i>non-Hodgkins lymphoma</i>, in particular, to diesel exhaust, or that suggested a dosing that could merit causation. But they testified that, more generally, the mutagenic way diesel exhaust acts on human issue merits a conclusion that it can cause cancers that were no just limited to one specific organ. </span></p><p><span style="font-family: verdana; font-size: medium;">The Company pointed out these apparent gaps in the analysis. But it didn</span><span style="font-family: verdana; font-size: medium;"></span><span style="font-family: verdana; font-size: medium;">’t provide evidence of its own that experts</span><span style="font-family: verdana; font-size: medium;"></span><span style="font-family: verdana; font-size: medium;">’ reasoning or methodologies were scientifically unsound.</span></p><p><span style="font-family: verdana; font-size: medium;">After tentatively accepting the opinions of Plaintiff</span><span style="font-family: verdana; font-size: medium;"></span><span style="font-family: verdana; font-size: medium;">’s experts, the trial court ultimately excluded them. It found that the gap between the underlying epidemiological evidence and the ultimate conclusions as to general causation was too broad to be bridged by the experts</span><span style="font-family: verdana; font-size: medium;"></span><span style="font-family: verdana; font-size: medium;">’ opinions. And without the experts, there was no evidence of causation, and thus the case could not go to trial. Plaintiff appealed.</span></p><p><span style="font-family: verdana; font-size: medium;">Before getting to the evidentiary issue, the Court of Appeal discusses the standard of review. It recognizes that rulings on evidence, and the admissibility of expert testimony in particular, are generally subject to an abuse of discretion. But, relying on a number of cases, the court says that when an <i>in limine</i> ruling precludes a whole cause of action, it is treated as a nonsuit and reviewed de novo.</span></p><p><span style="font-family: verdana; font-size: medium;">But that’s not entirely right. No doubt, the court pulls in language from cases that say, literally, that a motion in limine ruling that excludes all evidence and therefore resolves a whole cause of action is essentially a nonsuit that gets reviewed de novo. But all the cases the court cites deal with circumstances where a trial court decides a <i>legal issue</i>, which then makes all evidence irrelevant and thereby dooms a cause of action. </span></p><p><span style="font-family: verdana; font-size: medium;">The legal issue could be the interpretation of a statute, a contract or case law. It could also be a determination that there</span><span style="font-family: verdana; font-size: medium;">’s just not enough evidence to make it to a jury</span><span style="font-family: verdana; font-size: medium;">—</span><span style="font-family: verdana; font-size: medium;">itself a legal decision that basically a nonsuit. The cases cited all have these kinds of fact patterns. <i>See Kinda v. Carpenter</i>, 247 Cal. App. 4th 1268, 1285 (2016) (on in limine motion, trial court held that evidence was insufficient to get to the jury); <i>McMillin Companies, LLC v. Am. Safety Indem. Co.</i>, 233 Cal. App. 4th 518, 529 (2015) (trial court excluded all contrary evidence on a duty issue based on a legal ruling that rendered the evidence irrelevant); <i>Legendary Inv. Grp. No. 1, LLC v. Niemann</i>, 224 Cal. App. 4th 1407, 1411 (2014) (similar); <i>City of Livermore v. Baca</i>, 205 Cal. App. 4th 1460, 1465 (2012) (exclusion of all evidence on the ground that the plaintiff's theory of liability was fatally defective); <i>Dillingham-Ray Wilson v. City of L.A.</i>, 182 Cal. App. 4th 1396, 1401 (2010) (trial court interpreted contract as a matter of law and found that interpretation made evidence irrelevant and thus inadmissible); <i>Fergus v. Songer</i>, 150 Cal. App. 4th 552, 570 (2007) (trial court determined that, as a matter of law, attorney fee agreement was voidable and thus that evidence of damages based on it could not go to the jury). But the standard of review in these cases is de novo because the trial courts are fundamentally deciding questions of <i>law</i>, which always get reviewed de novo.<br /></span></p><p><span style="font-family: verdana; font-size: medium;">That, however, not the same thing as when a trial court makes an <i>evidentiary</i> ruling that makes certain evidence inadmissible, which then potentially has the consequence that the plaintiff can</span><span style="font-family: verdana; font-size: medium;">’t get to a jury. The ultimate <i>significance</i> of a pretrial ruling on a question of the admissibility of evidence should not change the standard of review. Notably, the court doesn</span><span style="font-family: verdana; font-size: medium;">’t cite any cases applying de novo review to the exclusion of a causation expert, even when that exclusion is potentially case dispositive. (<a href="https://caccp.blogspot.com/2023/04/putting-in-work.html" target="_blank">This recent one,</a> for instance, certainly didn</span><span style="font-family: verdana; font-size: medium;">’</span><span style="font-family: verdana; font-size: medium;">t.) </span></p><p><span style="font-family: verdana; font-size: medium;">If the evidentiary question is one normally one which is reviewed for an abuse of discretion—a classic example of which is the admissibility of expert testimony</span><span style="font-family: verdana; font-size: medium;">, <i>see Sargon Enterprises v. University of Southern California</i>, 55 Cal.4th 747, 773 (2012)—it should be reviewed under that standard, consequences be damned. <i>Then</i>, whether whatever is left is enough to get to a jury<i> </i>is a legal and <i>that</i> question should get reviewed de novo. But reviewing discretionary decisions de novo just because a plaintiff might lose as a result puts a thumb on the scale in favor of a plaintiff because, especially in cases of causation, <i>excluding</i> expert testimony on causation issues is usually case dispositive, but <i>admitting</i> it is generally not. It is completely arbitrary and nonsensical for a standard of review to change based on whether the trial court</span><span style="font-family: verdana; font-size: medium;">’</span><span style="font-family: verdana; font-size: medium;">s decision was to admit vs. to exclude. The standard of review should turn on the <i>nature</i> of the decision, not its consequence.<br /></span></p><p><span style="font-family: verdana; font-size: medium;">(FWIW, I just realized I digressed at length on this point in a <a href="https://caccp.blogspot.com/2016/07/of-chimp-sarcasm-and-ip-adresses.html">post nearly eight years ago</a>. While my memory is imperfect, my point stands nonetheless.)<br /></span></p><p><span style="font-family: verdana; font-size: medium;">In any event, moving on to the evidentiary question, the Court of Appeal drills down to the issue of the kind of inference a scientific expert can permissibly draw from underlying source material. As noted, these experts, relying on evidence of increased carcinogenicity in general, concluded that diesel exhaust could cause the specific kind of cancer that killed the decedent. They supported that conclusion with some more testimony explaining why that was a permissible inference, in their fields of expertise, to draw. Like that the kind of pathology caused by exposure to diesel exhaust</span><span style="font-family: verdana; font-size: medium;">—mutagenic damage to cellular level DNA</span><span style="font-family: verdana; font-size: medium;">—made it reasonable to conclude that the exposure could cause a bunch of different types of cancer. </span></p><p><span style="font-family: verdana; font-size: medium;">So the Court of Appeal concludes that in the absence of any evidence submitted by the Company establishing that that kind of conclusion was an <i>inappropriate</i> one for an epidemiologist to draw from the underlying data, the trial court abused its discretion in excluding the testimony because the inferential gap was too wide.</span></p><p><span style="font-family: verdana; font-size: medium;">This is, admittedly, a hard epistemic task. As David Hume explained</span><span style="font-family: verdana; font-size: medium;"> a couple hundred years ago</span><span style="font-family: verdana; font-size: medium;"> in <i>An Enquiry Concerning Human Understanding</i>, <a href="https://iep.utm.edu/hume-causation/" target="_blank">you can never definitively <i>prove</i> the answer to a question of causation</a>. All you can really do is observe a set of correlations that are significantly close from which an inference of causation can be drawn. So here, the <i>Sargon</i> question is how close does epidemiological statistical data</span><span style="font-family: verdana; font-size: medium;">—itself an observation of correlation</span><span style="font-family: verdana; font-size: medium;">—</span><span style="font-family: verdana; font-size: medium;">need to be to make a methodologically sound inference that a relationship is causal. And even more specifically, what kind of evidence (or law) validates the soundness of that inference. </span></p><p><span style="font-family: verdana; font-size: medium;">Some more extreme facts can illustrate the question. On one hand, say an expert relies on a study of a large population is exposed to some agent in a specific and measurable way. All or nearly all of them develop some rare disease that is almost never seen in the pubic at large. And there</span><span style="font-family: verdana; font-size: medium;">’s nothing else about the exposed group that otherwise meaningfully differs from the public. In that case, provided the methods in which the data were collected were sound, the gap between that data and the inference of a causal relationship between the exposure and the plaintiff</span><span style="font-family: verdana; font-size: medium;">’</span><span style="font-family: verdana; font-size: medium;">s disease</span><span style="font-family: verdana; font-size: medium;"> isn</span><span style="font-family: verdana; font-size: medium;">’</span><span style="font-family: verdana; font-size: medium;">t very big at all.</span></p><p><span style="font-family: verdana; font-size: medium;">On the opposite end, say the study of a small population correlates exposure a number of different outcomes, which also occur almost as frequently in the unexposed population, the sample was taken from a population that is atypical in some way, and the plaintiff suffers an outcome that is not among the ones measured in the sample. There, the gap between the data and a conclusion of causation is clearly too wide to stand. The fact that a couple of lactose intolerant people get a tummy aches from eating dairy does not justify an inference that ice cream causes pancreatic cancer.</span></p><p><span style="font-family: verdana; font-size: medium;">Easy cases like these at the outer limits can likely be resolved as a matter of law or undisputed fact by well-informed judicial common sense. But there is obviously a wide field of grey area in between. And there, the question of “is this a reasonable inference to draw?” seems itself to be a factual question that could itself be a potential subject of expert opinion: Do professionals in the relevant field, employing appropriate methodologies, and outside of litigation, think that, data A rationally merits the more likely than not inference of a causal relationship?</span></p><p><span style="font-family: verdana; font-size: medium;">Those situations can turn on </span><span style="font-family: verdana; font-size: medium;">a kind of meta-evidence. That is, evidence that, while potentially irrelevant to the merits, </span><span style="font-family: verdana; font-size: medium;">goes to a question of whether <i>other </i>evidence is even admissible. Here, that was, to some degree provided by Plaintiff. Its experts testified why it was reasonable to infer causation of non-Hodgkin</span><span style="font-family: verdana; font-size: medium;">’s lymphoma from general cancer data concerning exposures to diesel exhaust. On the other hand, the Company didn</span><span style="font-family: verdana; font-size: medium;">’</span><span style="font-family: verdana; font-size: medium;">t put in anything to the contrary. So that resolves the appeal.</span></p><p><span style="font-family: verdana; font-size: medium;">But what if the Company put in evidence that in the practices in field of epidemiology, the inference drawn by Plaintiff</span><span style="font-family: verdana; font-size: medium;">’s expert wasn</span><span style="font-family: verdana; font-size: medium;">’t a reasonable one to draw</span><span style="font-family: verdana; font-size: medium;">? In that case, it seems to me, under Evidence Code §§ 403 and 405(a), as </span><span style="font-family: verdana; font-size: medium;">a condition to admitting the testimony, the </span><span style="font-family: verdana; font-size: medium;">trial court would be obliged to decide whether, as a matter of fact, a preponderance of the evidence established that the inference was justifiable or the gap was to big. A trial court should not be able to engage in another round of meta-punting on the basis that <i>that</i> question too is a subject of debate within the field.</span></p><p><span style="font-family: verdana; font-size: medium;">Reversed. <br /></span></p><p><span style="font-family: verdana; font-size: medium;"><br /></span></p><p><span style="font-family: verdana; font-size: medium;"><br /></span></p><p><span style="font-family: verdana; font-size: medium;"><br /></span></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-90966919273120484822024-01-18T14:03:00.000-08:002024-01-18T14:03:26.701-08:00Separate Statement Smackdown<p><a href="https://www.courts.ca.gov/opinions/documents/G062736.PDF" style="font-family: verdana;" target="_blank"><i>Beltran v. Hard Rock Hotel Licensing</i>, No. G062736 (D4d3 Dec. 5, 2023)</a></p><p><span style="font-family: verdana;">Five years ago, my partner David Klein and I had an article in <i>Los Angeles Lawyer</i> called “Crafting Separate Statements in Motions for Summary Judgment.” The gist of the article was that there was a widespread misunderstanding about what facts and at what level of generality should go into the separate statement required under Rule of Court 3.1350(d). That document calls only for <i>material</i> facts, which basically means the facts, stated in a case-specific action, that make up the elements of the cause of action. So for any given cause of action, depending on the moving party, there could be as few as one at most a handful of facts that are truly material to an SJ motion. But in practice, that is not the way most separate statements are put together. Typically, the tend to be bloated useless documents stuffed to the gills with scores or even hundreds of purportedly </span><span style="font-family: verdana;">“</span><span style="font-family: verdana;">undisputed material facts.</span><span style="font-family: verdana;">”</span><span style="font-family: verdana;"></span></p><p><span style="font-family: verdana;"> Other than the associates I have harangued on this point over the years, I don’t know if anyone ever read that article. (And maybe not even those associates...) I can’t link to it, although it is on Westlaw somewhere. (41-DEC L.A. Law. Rev. 14.) </span></p><p><span style="font-family: verdana;">In any event, the Court in this FEHA sexual harassment case makes the same point. It identifies “the deeply problematic misuse of the separate statement of material facts by all parties and how separate statements can be brought into compliance with existing law.”</span></p><p><span style="font-family: verdana;">I</span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">m not usually a block quote guy, but the court’s full analysis is worth a read: <br /></span></p><p></p><blockquote><p><span style="font-family: verdana;">Defendants filed three separate statements of undisputed material facts (separate statement or statements) in support of each of the three motions for summary judgment filed in this case. Each separate statement includes over 600 paragraphs of purportedly “material facts” and runs over 100 pages. After reviewing the Defendants’ separate statements and Beltran’s responses to them, as well as recent separate statements in other recent cases before us, we can only conclude that a document that was intended to be helpful to the court and provide due process to the parties <i>(Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co.</i> (2005) 133 Cal.App.4th 1197, 1210) is, in many cases, no longer serving either purpose. We write on this issue to remind both litigants and trial courts about the appropriate scope of the separate statement.</span></p><p><span style="font-family: verdana;">Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Italics added.) California Rules of Court, rule 3.1350(d)(2) states: “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” Under the Rules of Court, “‘Material facts’ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Rule 3.1350(a)(2).) <br /></span></p><p><span style="font-family: verdana;">What neither the rule nor the statute states is that the moving party must include in the separate statement every fact they intend to include in their motion, regardless of its materiality. For example, HRH’s very first “material fact” in its separate statement is: “The Hard Rock brand is known worldwide for its connection to music, fashion, and entertainment.” Under no interpretation of “material” does this qualify – it is merely background information that has no relevance to any cause of action or defense.</span></p><p><span style="font-family: verdana;">This is far from the only paragraph in the three separate statements that make absolutely no difference in the disposition of the motion. <i>The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an affirmative defense.</i> (See Code Civ. Proc., § 437c, subd. (b)(1); rule 3.1350(a)(2), (d)(2).) The statute and Rules of Court do not preclude litigants from including background, nonmaterial information in their papers as long as they include a cite to the evidence, but nonmaterial facts should not be included in the separate statement. The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (<i>Collins v. Hertz Corp.</i> (2006) 144 Cal.App.4th 64, 74.) There is nothing convenient or expeditious about the separate statements submitted in this case.</span></p><p><span style="font-family: verdana;">The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists. For example, HRH’s separate statement included paragraph 14: “When Shepherd began working at the Hotel, Plaintiff Stephanie Beltran (“Plaintiff’) worked as a server in different parts of the Hotel, but primarily in the Hotel’s nightclub called the ‘Club.’” Beltran claimed this benign and indisputable fact was disputed: “<b>Disputed</b>. Although Plaintiff was already working at Hard Rock when Defendant Shepherd was hired, Plaintiff’s hire date was on or around February 10, 2017, as that’s when her Labor Code § 2810.5 Notice was filled out.” This response did not, in fact, dispute HRH’s statement, and the response should have been “undisputed.” If Beltran’s hire date was a material fact (and we do not see why it was – at best, it was background information) it should be listed under the opposing party’s additional facts with supporting evidence. The quoted paragraph is far from the only example of this problem in Beltran’s responses.</span></p><p><span style="font-family: verdana;">As we mentioned, one of the purposes of the Separate Statement is “to permit the trial court to focus on whether [the material] facts are truly undisputed.” (<i>Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co.</i>, <i>supra</i>, 133 Cal.App.4th at p. 1210.) This can only be accomplished by both parties preparing the Separate Statement according to the statute and Rules of Court and acting in good faith. The moving party must include only material statements of fact, not incidental and background facts. The opposing party must concede facts that are truly undisputed and only add facts that are material. It is difficult to conceive of a properly drafted Separate Statement that includes over 600 paragraphs of undisputed material facts.</span></p><p><span style="font-family: verdana;">Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement – and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. Courts should also not hesitate to disregard attempts to game the system by the opposing party claiming facts are “disputed” when the uncontroverted evidence clearly shows otherwise.</span></p></blockquote><p></p><p><span style="font-family: verdana;">(Emphases original, footnotes omitted).</span></p><p><span style="font-family: verdana;">Reversed.</span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-53731791986533106032023-11-27T10:55:00.000-08:002023-11-27T10:55:58.658-08:00To Stay or Not to Stay<p><a href="https://www.courts.ca.gov/opinions/documents/A165378M.PDF" style="font-family: verdana;" target="_blank"><i>Mattson Technology, Inc. v. Applied Materials, Inc.</i>, No. A165378 (D1d5, as modified Nov. 20, 2023)</a></p><p><span style="font-family: verdana;">Plaintiff and Defendant both make machines that are used make to semiconductor chips. Defendant hired Engineer, who has previously been employed by Plaintiff for a long time. Defendant similarly poached a bunch of other employees from Plaintiff. This is California, so there’s nothing, in itself, wrong about that.</span></p><p><span style="font-family: verdana;">But a bunch of the poached employees wiped their work phones shortly before their departure and lied about where they were going in their exit interviews. That’s kind of suspicious. And Engineer did them one better. Shortly before leaving, he accessed Plaintiff’s cloud-based data storage system and emailed more than a dozen emails to his personal email accounts, attaching highly sensitive Plaintiff company documents unrelated to Engineer</span><span style="font-family: verdana;">’s work</span><span style="font-family: verdana;">. In the world of trade secrets litigation, that’s pretty much a smoking gun.</span></p><p><span style="font-family: verdana;">So Plaintiff sued Defendant and Engineer in state court. It sought and obtained a preliminary injunction barring Defendant from using Plaintiff’s trade secrets. Defendant and Engineer than moved to compel arbitration based on an arbitration clause in Engineer’s employment agreement. The trial court granted as to Engineer, but denied as to defendant, on the grounds that it was a non-signatory. The court further declined to stay the litigation between Plaintiff and Defendant while the Plaintiff/Engineer arbitration was litigated. Defendant appealed.</span></p><p><span style="font-family: verdana;">There are three issues: (1) not compelling the claim against Defendant to arbitration; (2) the PI; and (3) the denial of the stay pending arbitration. The first two are pretty easy.</span></p><p><span style="font-family: verdana;">Defendant tried to hitch onto Engineer’s arbitration clause based on equitable estoppel. The basic point of equitable estoppel in the context of arbitration is that if you sue someone on claim that is inextricably bound up with a contract that includes an arbitration clause, that person gets to rely on the clause even if they aren’t a signatory to the contract. As the Court explains, “As a matter of fairness, when a party to a contract seeks to hold a non-signatory defendant liable for obligations imposed by the contract, the party cannot evade an arbitration clause in the contract simply because the defendant is a non-signatory.” </span></p><p><span style="font-family: verdana;">But that’s not what is going on here. Plaintiff doesn’t assert that Defendant owed it some duty under Engineer’s employment agreement. It instead claims that Defendant misappropriated its trade secrets, which is a breach of statutory obligation that exists outside of any contract. The fact that the arbitration agreement would have included that claim, had Defendant been a signatory, is not enough to give rise to equitable estoppel. Nor is the fact that Defendant allegedly conspired with Engineer, a signatory, in carrying out the misappropriation. </span></p><p><span style="font-family: verdana;">The PI is even more clear cut. There was credible evidence that Engineer sent some of the material to Defendant after he got hired. Defendant had no right to use that information. The equities are clearly on the side of Plaintiff. And the Trade Secrets Act specifically authorizes courts to enjoin “actual <i>or threatened</i>” misappropriation. Civil Code § 3426.2. Probably the better argument to make would have been that the injunction did not do enough to discern use of Plaintiff’s info from perfectly innocent activity that relied on Defendants own sources of knowledge. That’s almost always a difficult issue in granting an injunction in a trade secrets case. But Defendant doesn’t appear to have raised that issue in trial court, so it’s forfeited.</span></p><p><span style="font-family: verdana;">The third issue, however, is tricky. The Court reads Code of Civil Procedure § 1281.4 to <i>require</i> a stay of related litigation, even against different non-signatory parties, when an action with overlapping issues is compelled to arbitration. It does so because § 1281.4 uses the word “shall<i>.</i>” And the Court cites some cases that basically stand for those points. <i>Heritage Provider Network, Inc. v. Superior Court</i>, 158 Cal. App. 4th 1146, 1152 (2008); <i>Cardiff Equities, Inc. v. Superior Court</i>, 166 Cal. App. 4th 1541, 1551 (2008).</span></p><p><span style="font-family: verdana;">But a recent Court of Appeal case explains that the mandatory stay under § 1281.4 applies only to the “controversy”—the actual claims between the parties to the arbitration agreement that have been sent to arbitration. <i>See Leenay v. Superior Court</i>, 81 Cal. App. 5th 553, 564–65 (2022) (“[S]ection 1281.4 authorizes a stay only if a court has ordered arbitration of a question between the parties to an agreement, and the same question and the same parties are involved in the pending action.”). <i>Leenay</i> explains, quite convincingly, that the point of § 1281.4 is to stay the actual claims that are being arbitrated, not overlapping claims against different parties. A <i>different</i> statute, § 1281.2(c)(1), is addressed to that issue. Unlike § 1281.4, § 1281.2 affords the court wide discretion to address how to handle overlapping claims of additional parties that aren’t required to arbitrate. Options listed in the statute include: Refusing arbitration altogether, ordering full or partial intervention, ordering arbitration and staying the litigation, and staying arbitration until the litigation is done. If § 1281.4 applies to more than just the matter being arbitrated the contrary discretion afforded under § 1281.2 is surplusage. </span></p><p><span style="font-family: verdana;">Notably <i>Leenay</i> tried to distinguish <i>Heritage</i> based on some procedural differences, but the <i>logic</i> of <i>Leenay </i>is not really reconcilable with the way these other cases read § 1281.4.</span></p><p><span style="font-family: verdana;">So there is a pretty clean split on this issue, although the parties</span><span style="font-family: verdana;">’</span><span style="font-family: verdana;"> apparent failure to flag it probably precludes review.</span></p><p><span style="font-family: verdana;">Reversed in part. </span><br /></p><p><br /></p><br />Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-54621806179189559282023-11-10T16:58:00.002-08:002023-11-10T16:58:39.375-08:00Roshamon and the Reporters' Shield Law<p><a href="https://www.courts.ca.gov/opinions/documents/F086308.PDF" style="font-family: verdana;" target="_blank"><i>The Bakersfield Californian v. Superior Court</i>, No. F086308 (D5 Nov. 7, 2023)</a></p><p><span style="font-family: verdana;">A guy is found murdered in a Target parking lot in Bakersfield. After reviewing a bunch of security footage, and a weird text message to an unconnected person that said, “I just killed someone! Turn on the news!</span><span style="font-family: verdana;">” the police narrow their case down to two suspects. They appear to be two random, somewhat down-on-their luck-guys who just met for the first time in the parking lot and decided to do some drinkin’. Then yadda, yadda, yadda, someone murders a Target customer.</span></p><p><span style="font-family: verdana;">Guy #1</span><span style="font-family: verdana;">—</span><span style="font-family: verdana;">who is first approached by the cops, IDs then fingers Guy #2</span><span style="font-family: verdana;">—</span><span style="font-family: verdana;">from whose cell phone the super incriminating text message was sent. He tells a meandering story that ends with Guy #2 shooting the victim in some kind of failed robbery. Guy #2 picks up a murder charge with a special circumstance. </span></p><p><span style="font-family: verdana;">At Guy #2</span><span style="font-family: verdana;">’s prelim, Guy #1 tells his story. It doesn</span><span style="font-family: verdana;">’t totally add up to what he originally told the cops. A bunch of the details change. On cross, it comes out that Guy #1 owns and has registered a gun that matches the 9mm caliber of the bullets found in the victim. But he says he gave that gun to an out-of-town buddy for safekeeping several months beforehand. The following day, however, #2</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s lawyer produced the aforementioned buddy at the ongoing prelim. Buddy apparently drove a long way to get there. Buddy says he hasn</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’t had any contact with Guy #1 for more than a year. And he is definitely not holding #1</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s 9.</span></p><p><span style="font-family: verdana;">This all gets Guy #1 indicted for the same murder. The two cases are consolidated. While in custody, Guy #1 gives an interview to a jailhouse reporter. He tells <i>another</i> version of the story. This time he has the gun. It</span><span style="font-family: verdana;">’s in his backpack. The similar drinking and hanging around goes on. He hears #2 shoot the victim. But he doesn</span><span style="font-family: verdana;">’t make a big deal of it because he</span><span style="font-family: verdana;">’s scared. They hang out some more. Only the following day does he realize his gun was missing from his backpack. The reporter</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s newspaper prints a story on it.</span><span style="font-family: verdana;"></span></p><p><span style="font-family: verdana;">At this point, you may be asking yourself,</span><span style="font-family: verdana;"> “what does this have to do with civil procedure?</span><span style="font-family: verdana;">” Here</span><span style="font-family: verdana;"></span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">s what. #2</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s attorney drops a subpoena on the newspaper, demanding any unpublished material from the interview. Guy #1</span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">s story shifted around so much that it seems like the notes might have more impeachment material. Newspaper moves to quash, citing California</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">s shield law, Evidence Code § 1070. The trial court ultimately denied it, finding that the privilege had to yield to the rights of accused Guy #2.</span></p><p><span style="font-family: verdana;">Newspaper filed a writ petition to challenge the ruling. But there’s a problem with that. The shield law is not actually an evidentiary privilege. It is an immunity from being held in contempt for refusing to reveal a source or to disclose unpublished material. Since the newspaper had not been held to be in contempt, the Court of Appeal denied the writ, noting that the trial court could enter a contempt order, if so warranted, and then stay it to give the newspaper time to seek another writ.</span></p><p><span style="font-family: verdana;">Back in the trial court, newspaper basically consents to being put in contempt, with the aforementioned stay entered. That happens, and the newspaper takes another writ. The Court of Appeal—in an unpublished part of the opinion</span><span style="font-family: verdana;">—takes issue with that too. After a lengthy review of the procedures for which a conviction for civil contempt is to be secured, the Court finds that the trial court failed to follow that process. Although the trial court seemed to do what the order denying the first writ said, apparently the court was supposed to follow all the writ procedures (even though newspaper consented to contempt), enter a judgment of contempt (including a punishment) and then stay the <i>execution of the punishment</i>. Regardless, having spent many pages walking through this in a part of the order that will be unciteable by anyone else, the Court of Appeal decides it will get to the merits anyway for prudential reasons. So now two guys who will potentially spend the rest of their lives in prison have been adequately educated by a bunch of dicta about indirect civil contempt.<br /></span></p><p><span style="font-family: verdana;">In an opinion that reads a lot like a Cal. Supreme Court opinion from the 90s</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">—that is, a <i>long</i> recitation of prior case law preceding any actual analysis</span><span style="font-family: verdana;">—the Court gets to applying the Shield law test around page 40. (FWIW, test has been settled law for more than 30 years.) Basically:</span></p><p><span style="font-family: verdana;">(1) The party invoking the privilege needs to show it facially applies. That is, that the claimant is a journalist who wants to withhold a source or unpublished information.</span></p><p><span style="font-family: verdana;">(2) If so, the party demanding the information (usually, like Guy #2, a criminal defendant) then must make a threshold showing that there is a reasonable possibility that the withheld information could be helpful to his case.</span></p><p><span style="font-family: verdana;">(3) And if so, the court balances four factors to decide whether the information should be disclosed: (a) whether the unpublished information is confidential or sensitive; (b) whether the interests sought to be protected by the shield law will be thwarted by disclosure; (c) the importance of the information to the defendant; and (d) whether there is an alternative source for the information.</span></p><p><span style="font-family: verdana;">Newspaper clearly meets the first element. </span></p><p><span style="font-family: verdana;">As to Guy #2, the burden to show that something you can</span><span style="font-family: verdana;">’t see potentially contains information that could be helpful to your case is a tricky one that turns on the difference between “reasonable possibility” (enough) and “mere speculation” (not enough). Here, although obviously Guy #2 doesn</span><span style="font-family: verdana;">’t know what</span><span style="font-family: verdana;">’s in the reporter</span><span style="font-family: verdana;">’s notes, the contents of the article circumstantially suggest that the reporter talked to Guy #1 about a number of issues that might either incuplate Guy #1 or exculpate Guy #2. That also includes material that might impeach Guy #1</span><span style="font-family: verdana;">’s testimony</span><span style="font-family: verdana;">. For instance, the contents of the article showed that the reporter spoke to Guy #1 about, among other things, the use of the gun, Guy #2</span><span style="font-family: verdana;">’s cell phone, from which the incriminating text was sent, and various other issues where #1</span><span style="font-family: verdana;">’s version of the timeline shifted over time. This was good enough to say, at least, that the trial court didn</span><span style="font-family: verdana;">’t abuse its discretion when it found #2 met his initial burden.</span></p><p><span style="font-family: verdana;">On the factors:</span></p><p><span style="font-family: verdana;"><b>Confidential or Sensitive:</b> #1 gave an on-the-record jailhouse interview to a reporter, so there is little reason to believe the notes contain anything confidential or sensitive. (Notably the newspaper resisted in camera review, which could have given the court a basis to make a contrary determination). </span></p><p><span style="font-family: verdana;"><b>Interests Protected by the Shield Law:</b> Again, Guy #1 isn</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’t exactly Deep Throat. There</span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s no indication that he gave information to the reporter as a confidential source, demanded things remain off the record, or that he gave some info on background. When a witness gives information readily and without limitation for a reporter to use however that reporter deems fit, the interests implicated by the shield law are not strongly called into play.</span></p><p><span style="font-family: verdana;"><b>Need for the Information:</b> As one might expect, this factor overlaps a good bit with the threshold burden. The Court elaborates that while the chance that the info would be really valuable was low, the <i>potential </i>was quite high, particularly given that Guy #2 </span><span style="font-family: verdana;">“is facing LWOP.” (For the civilly inclined, that</span><span style="font-family: verdana;"></span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s <u>L</u>ife <u>W</u>ithout an <u>O</u>pportunity for <u>P</u>arole.) </span></p><p><span style="font-family: verdana;"><b>Alternative Source:</b> This one, as often is the case in the law, turns on the level of generality. Guy #2 says the reporter</span><span style="font-family: verdana;"></span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s notes are the <i>only</i> source of what Guy #1 told to the reporter. The newspaper, on the other hand, argues that we</span><span style="font-family: verdana;"></span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">re just talking more generally about material that can impeach Guy #1, and there</span><span style="font-family: verdana;"></span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s already <i>tons</i> of that floating around, between the interviews with the cops, the prelim, etc. The court says the newspaper</span><span style="font-family: verdana;"></span><span style="font-family: verdana;"></span><span style="font-family: verdana;">’s argument is </span><span style="font-family: verdana;"></span><span style="font-family: verdana;">“not persuasive.” So there was no alternative source in the way the test is meant to apply.</span></p><p><span style="font-family: verdana;"><b>A Final Word on in Camera Review: </b>Finally, the Court notes that a lot of the uncertainty in this case could have been avoided if the court held an in camera hearing. The criminal subpoena statute, Penal Code </span><span style="font-family: verdana;">§ 1326, specifically authorizes a criminal court to hold an in camera hearing about whether a defendant is entitled to subpoenaed documents. On one hand, at an in camera hearing, Guy #2 could have explained his theory of relevance in more detail, without spilling the beans to the DA as to his defense theory. On the other hand, newspaper really had confidentiality concerns, it could have shown the notes to the court to prove why that was the case. Quoting another case, the court explains that </span><span style="font-family: verdana;">“</span><span style="font-family: verdana;">the better policy is to encourage parties to allow disputed materials to be examined by the trial court in camera, because the court’s review may resolve the matter expeditiously and short of a contempt adjudication.”</span></p><p><span style="font-family: verdana;">Writ granted, but only to the extent that the trial court judged the newspaper to be in contempt. Otherwise denied. </span></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-72888919764348857532023-10-13T16:02:00.003-07:002023-10-13T16:02:38.077-07:00Costs of Proof Awarded for Needlessly Denied RFAs<p><a href="https://www.courts.ca.gov/opinions/documents/B317540.PDF" style="font-family: verdana;" target="_blank"><i>Vargas v. Gallizzi</i>, B317540 (D2d7 Oct. 13, 2023)</a></p><p><span style="font-family: verdana;">This is an appeal after a re-trial of damages in an auto injury case. In the first trial, the court excluded a bunch of medical records because the Plaintiffs didn’t obtain detailed enough business records foundation declarations and failed to have sealed envelopes containing the records delivered to the court under Evidence Code § 1560(b)-(d).* </span></p><p><span style="font-family: verdana;">To avoid that rigamarole on retrial, Plaintiffs served requests for admissions, asking that the Defendant admit that the records were authentic and business records, subject to the business records exception of the hearsay rule. Defendants admitted the former, but not the latter. Defendants also denied some RFAs on the timeline of their treatment and causation. In a pretrial ruling, the Court ultimately ruled for plaintiff that the documents were authentic and within the business records exception. Defendant did not further object to the admissibility of the records at trial. </span></p><p><span style="font-family: verdana;">After Plaintiffs won a somewhat meager damages award, they moved for costs of proof under Code of Civil Procedure § 2033.420. The court denied the award because the business records exception had not been proven “at trial,” and because the proof of causation and treatment did not require proof that was marginally greater than what Plaintiffs put on to prove their damages. Plaintiffs appealed.</span></p><p><span style="font-family: verdana;">As the Court of Appeal explains, § 2033.420(a) awards costs of proof when an RFA is denied and the propounding party “proves the genuineness of that document or the truth of that matter.” It doesn’t say that the proof needs to happen <i>at a trial</i>. Nor did Defendants satisfy the exception for when the respondent “had ground to believe that party would prevail on the matter.” § 2033.420(b)(3). Defendant’s only proof on that point is that she thought that Plaintiffs might screw up the process again so she wasn’t inclined to stipulate it away. That, however, is not a reasonable basis to believe that the documents were not actually business records. So the trial court erred in denying costs of proof for the business records RFAs. </span></p><p><span style="font-family: verdana;">And since the business records <i>were </i>the proof of treatment and causation, the court’s denial of fees on those points was harmless.</span></p><p><span style="font-family: verdana;">Reversed and remanded.</span></p><p><span style="font-family: verdana;">*Section 1560 of The Evidence Code contains a 70-year old procedure for third parties to produce documents in response to a business records subpoena. Copies of the responsive records, along with the business records declaration under Evidence Code § 1651, are sealed in an inner envelope with the case title, number, witness name and subpoena date written on it. Then that envelope is sealed in an outer envelope addressed to the court clerk or deposition officer. The envelope, then, is opened only at the trial or deposition, in the presence of all parties or their counsel. The point of this is to maintain the chain of custody of the documents. </span></p><p><span style="font-family: verdana;">In nearly 20 years of practicing law in California, I don’t think I’ve ever seen this done. Indeed, outside of very rare situations, I’ve basically never made or received a hardcopy production of documents. Maybe things might still work the old way in PI cases with medical records. (Medicine</span><span style="font-family: verdana;">’s adaptation of digital technology seems to be twenty years </span><span style="font-family: verdana;">behind the already pathetic state of technology in the legal industry.) </span></p><p><span style="font-family: verdana;">But it would be nice if the code tried to adapt to modern practice a bit. Like, if the producing party places unique numbering on copies of the records to be produced, references that numbering scheme in a Evidence Code </span><span style="font-family: verdana;">§</span><span style="font-family: verdana;"> 1561 business records declaration, and then transmits the records in a digital file to the appropriate recipient, the contents of that file are presumed to be the authentic business records of the subpoenaed party. That</span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">s basically the way things work nowadays even in the absence of a rule.</span><br /></p><p><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-80529705020430837592023-10-04T08:00:00.011-07:002024-01-20T21:07:43.608-08:00The Inescapable Empire<p><a href="https://www.courts.ca.gov/opinions/documents/D081670.PDF" style="font-family: verdana;" target="_blank"><i>EpicentRx v. Superior Court</i>, No. D081670 (D4d1 Sept. 21, 2023).</a><span style="font-family: verdana;"><br /></span></p><p><span style="font-family: verdana;">So, back in 2019, <a href="http://caccp.blogspot.com/2019/11/jury-trial-waiver-kills-contractual.html" target="_blank">the Court of Appeal decided</a> that it would not enforce a forum selection clause in a contract if it would result in the case being sent to a jurisdiction that might enforce a void-in-California waiver of the right to a jury trial. This case doesn’t involve a jury waiver. But it does involve a bylaw requiring a company’s stockholders to litigate disputes over its internal affairs in the Delaware Court of Chancery. On several occasions, <a href="http://caccp.blogspot.com/2022/05/labor-code-925-does-not-eat-internal.html">the Court </a><a href="http://caccp.blogspot.com/2019/01/fairwell-to-california-forum-going.html">of Appeal</a> <a href="http://caccp.blogspot.com/2018/07/have-at-it-court-of-chancery.html#more">has found</a> such bylaws to be valid, and on that basis sent stockholder cases packing to the First State. </span></p><p><span style="font-family: verdana;">Plaintiff in this case, however, raises a new argument. The Court of Chancery is a court of equity, and as such, it doesn’t do juries. At all. So Plaintiff argues that choosing chancery is a <i>de facto</i> waiver of jury trial rights that would otherwise apply in California. Thus, as with <i>Handoush</i> and the cases it is based on, to enforce the forum selection would effectively result in a waiver of an otherwise unwaivable California right. The Court of Appeal agrees.</span></p><p><span style="font-family: verdana;">Notably, the Court of Appeal declines to enforce the selection for causes of action that the right to jury trial does not attach, even in California. That, according to the court, would result in unnecessary expense and piecemeal litigation.</span></p><p><span style="font-family: verdana;">Writ denied.</span></p><p><span style="font-family: verdana;">This seems kind of problematic to me. One of the reasons companies incorporate under Delaware law is to have the benefit of Delaware</span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">s specialized courts in resolving disputes over their internal affairs. This ruling effectively denies that benefit by sheer virtue of the fact that the company is located in California. California’s courts are busy enough without making them the venue for complex disputes involving some other states</span><span style="font-family: verdana;">’</span><span style="font-family: verdana;"> laws. </span></p><p><span style="font-family: verdana;">On the other hand, the logic of the ruling is not really much of a stretch from <i>Handoush. </i>But how far does a court need to go to allow a California jury right to trump an express (and completely logical) choice of venue? Do we need to make sure that a complaint doesn’t include any causes of action that California considers to be legal but some other state might view as equitable? And of course, a clever plaintiff lawyer could avoid all that by adding even a weak claim for fraud or breach of contract to any dispute over corporate governance. (Indeed, the Company</span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">s briefs say that</span><span style="font-family: verdana;">’</span><span style="font-family: verdana;">s what happened here.)</span><span style="font-family: verdana;"><br /></span></p><p><span style="font-family: verdana;">Interestingly, the Supreme Court granted review in <i>Handoush. </i>But the appeal got dismissed due to some idiosyncratic concerns of the parties. Then, as the Court here notes, it granted review again on the same issue in an unpublished case called <i>Gerro v. Blockfi Lending LLC</i>, S275530. But that case has sat unbriefed for a year because the defendant went bankrupt. So—particularly given the effect this decision might have on many California-based companies incorporated under Delaware law and upon contractual arrangements that provide for Delaware law and venue—I would not be stunned to see a petition granted on this case as well.</span></p><p><span style="font-family: verdana;"><b>**Update: Review granted**</b> </span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-86407802116002647662023-10-02T13:38:00.002-07:002023-10-02T13:38:51.403-07:00Mootness, Remedies, and Class Cert<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/B315814.PDF" target="_blank"><i>Shaw v. LAUSD</i>, No. B315814 (D2d4 Sept. 9, 2023)</a></span></p><p><span style="font-family: verdana;">This is a super important education case brought by some of my partners that alleges that a series of LAUSD-UTLA collective bargaining side deals to deal with remote learning during the pandemic violated LAUSD students’ rights to equal educational opportunities under the State Constitution and the Education Code. Congrats to my partners Ned and Mark and Sierra.</span></p><p><span style="font-family: verdana;">But in this venue, I’m gonna leave the substance to the ed reform lawyers. There are, however, a bunch of interesting procedural issues that are worth noting. </span></p><p><span style="font-family: verdana;">They mostly arise from the procedural posture of the case. Plaintiffs got their complaint on file early in the 2020-21 school year. They tried to file a preliminary injunction as a noticed motion. But because their case was brought as a class action, the (completely non-statutory or rule based) automatic stay that issues in LA Civil Complex departments prevented them from getting that on file for a long long time. There was some also discovery fighting and later, an amended complaint. While that was all pending, the Legislation governing distance learning expired, as did the the final LAUSD-UTLA side letter, which ran to the end of the 2021 school year.</span></p><p><span style="font-family: verdana;">The District moved to strike the operative complaint</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s prayer for retrospective injunctive relief, arguing that it was not a proper form or relief and that is could not be obtained on a class wide basis. The Union moved to strike the class allegations for failure to establish a well-defined community of interests. Both defendants demurred to the operative complaint on mootness grounds. The trial court essentially granted all the motions. Plaintiffs appealed.<br /></span></p><p><span style="font-family: verdana;">After some confusing discussion about forfeiture and waiver, the Court of Appeal offers up an interesting discussion of the relationship between mootness and remedies. People who live in federal court world probably know this intuitively. Under the classic formulation of Article III standing, to have standing, a plaintiff must have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision. See <i>Lujan v. Defenders of Wildlife,</i> 504 U.S. 555, 559–560 (1992). As Justice Powell explained almost 50 years ago, the “standing question . . . bears close affinity to questions of ripeness—whether the harm asserted has matured sufficiently to warrant judicial intervention—and of mootness—whether the occasion for judicial intervention persists.” <i>Warth v. Seldin</i>, 422 U.S. 490, 499 n.10 (1975). That is, a case is moot when, due to events after filing, the court can no longer provide any meaningful remedy.</span></p><p><span style="font-family: verdana;">California state court does not have article III standing, so the relationship between mootness and the viability or remedies is less clear-cut doctrinally, but the court does a good job of explaining the relationship here. The upshot of that is if the trial court erred in striking the class allegations and the claim for retrospective injunctive relief, the mootness issue essentially falls with those rulings.</span></p><p><span style="font-family: verdana;">That brings up two related questions: 1. When can you strike class allegations at the pleadings stage; 2. Is there even such a thing as retrospective injunctive relief.</span></p><p><span style="font-family: verdana;">On the first question, striking class allegations on the pleadings, without taking any evidence, is pretty disfavored. Generally, a challenge to the viability of a class action needs to wait until class certification, so long as the complaint alleges facts that (1) there is an ascertainable class of plaintiffs; and (2) there are common questions of law and fact among them. Generally questions of predominance, and manageability, and typicality must await the more detailed analysis undertaken at class certification.</span></p><p><span style="font-family: verdana;">The Court of Appeal says that the trial court erred in striking the class allegations based on its assessment that to the extent retrospective injunctive relief is even a thing, it can’t be managed on a class-wide basis. Since the complaint showed that a class was clearly ascertainable (LAUSD students during the pandemic) and the were obvious common questions (the legality of LAUSD policy and the UTLA-LAUSD deals) that should have been the end of the inquiry at the pleadings stage. As the Court notes, there is no authority supporting the striking of class allegations on the pleadings due to the purported lack of a class-wide remedy.</span></p><p><span style="font-family: verdana;">So far as retrospective injunctive relief, <i>of course</i> that is a real thing. If a defendant’s violations of the law hurt the plaintiff in a way that can’t be fixed with money, the court clearly has the power to order the defendant to do things prospectively that remediate that harm. No doubt, those kinds of remedies re less common and harder to judicially administer than a typical prohibitory injunction that just says “stop doing x.” But, in the right circumstances, an equitable remedy to fix past harms is available. The Court cites cases providing the classic remedy of the reinstatement of a wrongfully terminated employee or the award of credit wrongfully withheld.<br /></span></p><p><span style="font-family: verdana;">The Court then addresses the Union’s claim that, given the expiration of the side letters, it should be let out of the case. The only reason the Union got sued here was as a “relief defendant”—a defendant who is not in the case for committing its acts that harmed the plaintiff (the Union owes the plaintiffs no duty), but which needs to be present to afford effective relief. Ironically, the reason the Union got sued here was to avoid the result of another case involving UTLA—<i>Reed v. United Teachers Los Angeles</i>, 208 Cal.App.4th 322 (2012)*—an education reform case where UTLA successfully blew up a settlement agreement between LAUSD and student plaintiffs because, although UTLA wasn’t a party, the terms of the settlement affected the rights of its members. The Court points out <i>Reed</i> requires keeping the Union in the case as a necessary party. </span></p><p><span style="font-family: verdana;">Finally, the Court holds that Plaintiffs</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span> challenge to the legality of automatic stay in L.A. Superior complex is non-justiciable. The theory was that the stay</span><span style="font-family: verdana;">—which is not grounded in any statutory or rule-based authority</span><span style="font-family: verdana;"><span style="font-family: verdana;">—</span>deprived Plaintiffs</span><span style="font-family: verdana;"></span><span style="font-family: verdana;"><span style="font-family: verdana;">’ of their statutory right to move for a preliminary injunction. But the stuff Plaintiffs wanted to restrain</span></span><span style="font-family: verdana;">—LAUSD</span><span style="font-family: verdana;">’s distance learning polices and the LAUSD-UTLA side letters</span><span style="font-family: verdana;">—have all since lapsed. So <i>that</i> question actually is moot. As the Court notes in explaining that the question is not one that evades review, a writ of mandate was available to challenge the stay, and some future plaintiff will be able to do so.</span><span style="font-family: verdana;"></span></p><p><span style="font-family: verdana;"> Reversed.</span></p><p><span style="font-family: verdana;">*Full disclosure: I worked, briefly, on appellate issues in <i>Reed</i> a long time ago. </span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-68622826392880951532023-09-10T21:06:00.001-07:002023-09-10T21:06:52.768-07:00Pay to Play<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/A167105.PDF" target="_blank"><i>Doe v. Superior Court</i>, No. A167105 (D1d3 Sept. 8, 2023)</a><br /></span></p><p><span style="font-family: verdana;">This case holds basically the same thing as the 2/8's decision in <a href="http://caccp.blogspot.com/2023/06/pay-arb-or-go-to-back-to-court.html"><i>Cvejik</i></a> back in June. Under Code of Civil Procedure § 1281.98, in an employment or consumer case, the party that drafted an arbitration clause needs to pay the Arbitrator’s bill within 30 days of it being due. And by “paid” it means payment <i>received</i>. Not the check is in the mail. The arbitration org</span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">—which has every incentive to let the rule slip</span></span></span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">—</span></span></span></span>doesn’t get to extend the deadline or (as it did here) make up some kind of mailbox rule. </span></p><p><span style="font-family: verdana;">So when the arb org</span><span style="font-family: verdana;"><span style="font-family: verdana;">—</span>after reminding the employer like fifty times that it needed to pay on time—cashed a check and deemed it timely because it was sent, but not received, before the due date, it erred. And then the trial court erred too when it declined to find that the employer waived the right to arbitrate and restart the litigation.</span></p><p><span style="font-family: verdana;">Writ granted.</span></p><p><span style="font-family: verdana;"><a href="https://www.youtube.com/watch?v=vi-8gVafA7k">This</a> is a great song about some long ago LA punk rock controversy, but the sentiment is well expressed. Lance was one of the greats...<br /></span></p><p><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-71756965319578652892023-08-27T12:59:00.000-07:002023-08-27T12:59:07.211-07:00Are There Tic Toc Videos on Equitable Estoppel?<p><span style="font-family: verdana;">I just realized that as of July, I have been doing this project as a side hustle for ten years. Close to 1,300 posts. And I get the suspicion, in my Gen-X </span><span style="font-family: verdana;">desuetude, that blogging is something the cool kids don’t do any more. Maybe I need a Tic-Toc channel or something ....</span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-79868464479140220212023-08-24T23:39:00.001-07:002023-08-24T23:39:41.565-07:00Informed Written Consent<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/B316718.PDF" target="_blank"><i>Geringer v. Blue Rider Finance</i>, No. B316718 (D2d7 Aug. 22, 2023).</a><br /></span></p><p><span style="font-family: verdana;">This is a very long-running dispute over some film financing. It purportedly settled back in 2010, but then a dispute over the settlement led to more litigation. The Lawyer who inked the settlement for Plaintiff is still its litigator, all these years later. Which poses a problem, because he’s now also a key witness.</span></p><p><span style="font-family: verdana;">Under Rule of Professional Conduct 3.7, a lawyer can’t try a case in which he or she is likely to be a witness unless: (1) the testimony is about something uncontested; (2) the lawyer is testifying about the nature and value of the services he rendered; or (3) the client gives informed written consent. Here, Lawyer informed the court of the issue, associated in a counsel to conduct his examination, and submitted a declaration from client that said client was aware of all the facts, and given that the lawyer has had the case for 16 years and the client’s near-insolvency, client had neither the time nor the wherewithal to hire another lawyer to get up to speed for a trial. </span></p><p><span style="font-family: verdana;">Notwithstanding the informed written consent of the client, Defendant moved, first to exclude the testimony, and then to DQ. Defendant argued that it would be prejudiced and that the testimony of Lawyer would impair the judicial process. The trial court granted the motion.</span></p><p><span style="font-family: verdana;">If you know anything about California legal ethics, you know that California takes a client’s right to counsel of choice <i>very</i> seriously. There are very few things that limit that, provided there is informed written consent. Short of representing opposite sides of the same litigation, almost all conflicts are waivable. Same thing with Rule 3.7, which deviates from the national model rule on the point. </span></p><p><span style="font-family: verdana;">If a client gives informed written consent, the fact that its trial lawyer is a witness can only lead to a DQ if the other side would be severely prejudiced or if it would seriously threaten the integrity of the judicial process. There</span><span style="font-family: verdana;"><span style="font-family: verdana;">’s a very messy family law case from 2011 where it happened. Once.</span></span></p><p><span style="font-family: verdana;">There’s no prejudice here to defendant. The anticipated trial was a <i>bench</i> trial, so there’s not even a jury to get confused. And on the other hand the prejudice to plaintiff would be enormous. Further, the record showed that Defendant knew Lawyer was going to be a witness for <i>years</i>. Yet they only raised the issue on the verge of trial and as an alternative remedy to excluding Lawyer’s testimony. That smacks of a strategic DQ, which is something that California legal ethics is very much <i>not</i> about. <br /></span></p><p><span style="font-family: verdana;">Reversed.</span></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-3686789161420331732023-08-22T18:37:00.002-07:002023-08-22T18:37:23.085-07:00Atoning for the Sins of Our Agents<p><a href="https://www.courts.ca.gov/opinions/documents/B318956.PDF" target="_blank"><span style="font-family: verdana;"><i>Inzuna v. Naranjo</i>, No. B318956 (D2d4 Aug. 21, 2023)</span></a></p><p><span style="font-family: verdana;">Wrongful death case against a Truck Driver and the Company who employed him. Plaintiff served requests for admission on Truck Driver, who didn’t respond. The court eventually ordered them deemed admitted. Plaintiff served largely the same RFAs on Company, which provided verified denials. Before trial, Plaintiff filed an MIL to preclude evidence of decedent’s comparative negligence, and issue on which an RFA on Truck Driver had been deemed to admit. The granted the MIL. It ultimately read a bunch of the deemed admitted RFAs to the jury. The verdict was $7.6 million, joint and several, against Truck Driver and Company. Company appealed.</span></p><p><span style="font-family: verdana;">Code of Civil Procedure § 2033.410(a) and (b) say that a matter deemed admitted is conclusively established against the party making the admission and biding <i>only on that party</i>. While this case involves vicarious <i>liability</i>, it does not involve vicarious <i>discovery</i>. Truck Driver wasn’t acting as Company’s agent when he failed to respond to the RFAs. The Court notes that the same rule applies in the context of default judgments—an agent</span><span style="font-family: verdana;">’s default does not bind a non-defaulting principal. The court concludes by explaining that “an agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent.”</span></p><p><span style="font-family: verdana;">This requires a reversal against <i>both</i> Truck Driver and the Company. As the court explains, when the liability of one defendant depends on that of another, even a defaulted defendant is entitled to the benefit of findings in a contested trial on that issue. So Truck Driver’s liability rises or falls with the Company’s result at retrial.</span></p><p><span style="font-family: verdana;">Reversed.</span></p><p><span style="font-family: verdana;">One curiosity here. The caption of the case is formatted [Defendant/Appellant] v. [Plaintiff/Respondent]. That</span><span style="font-family: verdana;">’s not the ordinary practice in state court here (or for that matter, in the 9th Circuit), where generally the trial court</span><span style="font-family: verdana;">’s caption is maintained, even when the defendant is the appellant. Having looked, though, I also can</span><span style="font-family: verdana;">’t find a rule that requires it to be that way. (There <i>is</i> a rule for the Cal. Supreme Court that says the capition needs to be the same as before the Court of Appeal opinion. <i>See</i> R. Ct. 8.504(b)(6).) </span></p><p><span style="font-family: verdana;">But I just worked on trying to style a caption for a federal appeal of the denial of a non-partys' post-judgment motion to intervene in case where two civil cases were consolidated with an MDL. This seems to be something that</span><span style="font-family: verdana;">’s worth spelling out. Or maybe I am just overly concerned about formatting.<br /></span></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-22953021460208384882023-08-07T16:54:00.003-07:002023-08-27T13:06:51.528-07:00PH II, Born Anew<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/G060920.PDF" target="_blank"><i>Moran v. Prime Healthcare Mgmt., Inc.</i>, No. G060920 (D4d3 Aug. 7, 2023)</a></span></p><p><span style="font-family: verdana;">This is mostly a case about healthcare law. I don’t do that. But procedurally, this is a rare recent option to touch on the usefulness of the common law motion to strike, so it’s worth a note.</span></p><p><span style="font-family: verdana;">As I said a <a href="http://caccp.blogspot.com/2016/09/a-course-correction-on-anti-slapp.html">long time ago</a>, the oft-cited rule that a demurrer lies only to a whole “cause of action” provides a strong incentive for plaintiffs to engage in what I’ve called “claim jamming”—the practice of combining different legal theories into the same count. And because nobody really wants to suffer the brain damaged required to get into the sausage of how a “cause of action” is made, that generally lets crafty plaintiffs shield dubious legal theories from a demurrer (and get discovery on them) by intermingling them with more ordinary ones. It also deprives a defendant of the one real shot it has to get rulings on important legal questions at a relatively early point in a case. </span></p><p><span style="font-family: verdana;">Some relief from this unnecessary formalism was held out by a Court of Appeal case from almost 30 years ago. In a 1995 case called <a href="https://law.justia.com/cases/california/court-of-appeal/4th/33/1680.html" target="_blank"><i>PH II</i></a>, the Court of Appeal recognized that an traditional motion to strike under Code of Civil Procedure § 436 permits a trial court to strike out part of a pleaded count that relies on an invalid legal theory, even though it does not dispose of a whole cause of action. That is a useful rule, but for whatever reason, it went essentially unapplied in another published case for a long, long, time. The Supreme Court cited it favorably in 2016 in <i>Baral v. Schnitt</i>—the case that explained how a “special” motion to strike under the anti-SLAPP statute applied to “mixed” causes of action. Even that, however, did not revive the utility of <i>PH II</i>.</span></p><p><span style="font-family: verdana;"><i> </i>But this case applies the <i>PH II</i> rationale. Plaintiff lost most of its claims in a class action in a prior appeal. But the Court of Appeal let one theory go. On remand, Plaintiff amended his complaint to add new theories under the UCL and CLRA. But he jammed those theories into the same “cause of action” as the prior theory endorsed on appeal. The trial court followed <i>PH II</i> and struck the language that implicated those theories, holding that they were not actionable as a matter of law. </span></p><p><span style="font-family: verdana;">On a <a href="http://caccp.blogspot.com/2014/08/death-knell-on-class-claims.html" target="_blank">death knell doctrine</a> appeal, Plaintiff argued that because Defendant didn’t challenge the part of his claim that was previously blessed by the Court of Appeal, any resolution of the other legal theories needed to await a motion for summary adjudication*. The Court here rejects that argument, finding that the issue “easily falls within the purview of <i>PH II</i>[.]” As the Court explains, “[t]here is no need for an expensive motion for summary adjudication to add to what must already be the high costs of this almost 10-year-old case. The purported defects are clear from the face of the complaint, and therefore, a motion to strike was proper.”</span></p><p><span style="font-family: verdana;">So now, at least, there’s something from this century to cite for the point.</span></p><p><span style="font-family: verdana;">Affirmed.</span></p><p><span style="font-family: verdana;">*Summary adjudication is similarly limited to whole causes of action under § 437c(f), so not sure what that would be any better.</span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-14541811986222084722023-08-01T12:28:00.000-07:002023-08-01T12:28:50.556-07:00Court Declines to Make the Dumbest Rule in the Discovery Act Even Dumber<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/B321229.PDF" target="_blank"><i>Pollock v. Superior Court</i>, No. B321229 (D2d1 Jul. 31, 2023)</a></span></p><p><span style="font-family: verdana;">Back in 2019, the Legislature amended Code of Civil Procedure § 2031.280 to include a requirement that a party producing documents must identify the specific demand number they are responsive to. Which perhaps makes sense if you are the kind of lawyer who handles cases where the total amount of discovery is a couple hundred pages. But in modern complex litigation with substantial e-discovery—where parties propound scores of RFPs and document discovery can easily run to the hundreds of thousands or even millions of pages—it’s completely insane. Fortunately, there’s sort of an unspoken detente in biglaw world that nobody is going to follow this rule. (If someone tried to make me, I</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>d move for a protective order.)<br /></span></p><p><span style="font-family: verdana;">Without waiting for any RFPs, Plaintiffs’ Counsel </span><span style="font-family: verdana;"><span style="font-family: verdana;">in this dependent adult elder abuse case </span>unilaterally produced about 1,500 pages of stuff. The Bates numbers lined up to her various clients. She didn’t identify which RFPs the files were responsive for the obvious reason that no RFPs had been propounded yet. Defendant eventually got around to that and subsequently filed a motion to compel on the ground that Plaintiffs’ responses didn’t identify what documents were responsive to what requests. The motion was pending for a <i>long</i> time. And during the interregnum, Plaintiffs lawyer produced a chart lining up the documents with the RFPs. That, apparently, was still not good enough. The trial court ultimately granted the motion to compel and issued a $910 sanction against one plaintiff and Counsel for the trouble. Plaintiff took a writ.</span></p><p><span style="font-family: verdana;">The Court of Appeal sensibly notes that there is a difference between the written <i>response</i> to a document demand and an actual <i>production</i> of documents. Often they don’t even happen on the same date. (§ 2031.280(b) says they are supposed to unless there’s an objection to the date. But objections are pretty cheap to make.) The form and content of the response is governed by §§ 2031.210-.270. The production is governed by § 2031.280. The requirement to identify RFPs to which produced documents are responsive is in the latter. So there’s no requirement that the identification be set out in the responses.</span></p><p><span style="font-family: verdana;">Writ granted. </span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-11311427640248204472023-07-31T14:05:00.007-07:002023-07-31T14:05:59.373-07:00A Special Application of Evidence Code § 352<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/S272166.PDF" target="_blank"><i>Doe v. Superior Court</i>, No. S272166 (Cal. Jul. 27, 2023)</a><br /><br />Evidence Code § 1106(a) generally prohibits the admission of evidence of the plaintiff</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s sexual conduct to prove consent or absence of injury to the plaintiff in a sexual harassment, sexual assault or sexual battery case. But § 1106(e) says that it does not render inadmissible evidence used to attack the credibility of the plaintiff under § 783. And § 783 says that, after following a specified procedure, the court can admit evidence of the plaintiff</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s sexual conduct if it is relevant under § 780—the general rule regarding witness credibility—and not rendered inadmissible under the probative-value-versus-prejudice balancing test in § 352. </span></p><p><span style="font-family: verdana;">The facts in this case are pretty awful. Plaintiff claims she was molested by her fourth grade teacher. To rebut causation on her emotional distress damages, the School intended to offer evidence that Plaintiff was also molested by a </span><span style="font-family: verdana;"><span style="font-family: verdana;">“</span>family friend</span><span style="font-family: verdana;"><span style="font-family: verdana;"></span><span style="font-family: verdana;"><span style="font-family: verdana;">”</span></span> several years later, and this subsequent act was the cause of some or all of her injuries and damages. Plaintiff moved in limine to keep the evidence out under §§ 1106 and 352. The trial court ultimately found the evidence admissible because it believed that § 1106—which it repeatedly misidentified by its criminal analogue, § 1103—applied only to voluntary sexual conduct.</span></p><p><span style="font-family: verdana;">Plaintiff took an immediate writ. The Court of Appeal initially stayed the case, but soon thereafter summarily denied the writ and dissolved the stay. The parties proceeded to opening statements, which mentioned the later incident. The Supreme Court, however, quickly granted review, issued a stay of its own, and transferred the case back to the Court of Appeal. The Court of Appeal, in a published opinion, found that the trial court erred in finding that § 1106 didn</span><span style="font-family: verdana;"><span style="font-family: verdana;"></span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span></span>t apply to involuntary sexual abuse. But it nonetheless found that the incident was admissible for impeachment only, based on its anticipation that Plaintiff would testify that the teacher's molestation was the sole cause of her emotional distress. It further found that the trial court had, more or less, followed the procedural requirements of § 783 and didn't abuse its discretion in failing to exclude the evidence under § 352. The Supreme Court granted review again.</span></p><p><span style="font-family: verdana;">Chief Justice Guerreo</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s unanimous opinion for the court canvasses the somewhat ugly history regarding the admissibility of evidence of a victim</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s “unchasteness</span><span style="font-family: verdana;"><span style="font-family: verdana;">”</span> to purportedly show her consent in rape cases. It wasn't until the early '80s that California got rid of a requirement of physical resistance to establish rape and began to bar the use of victim</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s sexual history in criminal rape cases to show consent. Then these limitations were expanded to civil cases in 1985.</span></p><p><span style="font-family: verdana;">As the Court explains, § 1106(a) prohibits the admission of the plaintiff's sexual conduct—voluntary or not—as substantive evidence to prove consent or absence of injury. But § 1106(e) essentially permits, subject to the procedures in § 783 and balancing under § 352, the use of the same evidence to attack the plaintiff</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s credibility. The Court recognizes that there is some </span><span style="font-family: verdana;"><span style="font-family: verdana;">“</span>tension</span><span style="font-family: verdana;"><span style="font-family: verdana;">”</span> between those two points. That, according to the Court highlights the importance of the § 783 procedures and § 352 balancing.</span></p><p><span style="font-family: verdana;">The Court thus parts ways with the Court of Appeal</span><span style="font-family: verdana;"><span style="font-family: verdana;"></span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span></span>s finding that the trial court substantially complied with § 783, which requires defendant to make a sworn offer of proof, plaintiff to be questioned out of the presence of a jury regarding the validity of the offer of proof, and an order by the court specifically delineating what questions, if any, should be allowed. In particular, the Court notes that an examination of Plaintiff might show whether she plans to testify that that 100% of her emotional distress was attributable to the teacher. That would have allowed the trial court to specifically define what was admissible in advance. </span></p><p><span style="font-family: verdana;">The Court further declines to affirm the Court of Appeal</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s holding that the evidence was admissible under § 352. In particular, the the trial court's failure to follow the § 783 procedures resulted in an inadequate record to fairly make that determination. The Court explains, however, that in the context of sexual conduct evidence in sexual abuse cases, § 352 balancing takes on a particular significance. </span></p><p><span style="font-family: verdana;">In most cases the </span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">“</span></span>prejudice</span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">”</span></span> to be avoided under the statute is the risk that a jury will draw unjustified conclusions from inflammatory or emotionally fraught evidence. But here, the prejudice is also to the Plaintiff, who can be made to suffer unwarranted intrusion into her private life. The balancing must account for the plaintiff</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>s right to privacy and freedom from harassment. Thus, as established in cases applying the analogous criminal provisions, </span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">“</span></span></span>courts should use their discretion to sparingly and narrowly use their discretion to admit such evidence.</span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">”</span></span> Accounting for the policy behind § 1006(a) requires a broader § </span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">“</span></span></span>352 inquiry compared with the garden-variety weighing contemplated under that statute in isolation.</span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">”</span></span> <br /></span></p><p><span style="font-family: verdana;">That didn</span><span style="font-family: verdana;"><span style="font-family: verdana;">’</span>t happen here, so it will need to happen on remand. The court finally notes that </span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">“</span></span></span>if the previously empaneled jury remains constituted (as we were informed at oral argument it does*), the trial court will be expected to proceed as appropriate in that regard.</span><span style="font-family: verdana;"><span style="font-family: verdana;"><span style="font-family: verdana;">”</span></span></span></p><p><span style="font-family: verdana;">Court of Appeal reversed.</span></p><p><span style="font-family: verdana;">*From all indications from dates in the opinion, it looks like about two years have passed since the opening statements discussed in the opinion. That's a long break for a jury.<br /><br /></span></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-37255161085218874202023-07-28T12:51:00.003-07:002023-07-28T12:51:48.091-07:00Some Anti-SLAPP Formalism<p><span style="font-family: verdana;"><a href=" https://www.courts.ca.gov/opinions/documents/B320483.PDF" target="_blank"><i><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-hansi-font-family: Calibri;">Park v.
Nazari</span></i><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-hansi-font-family: Calibri;">, No. B320483 (D2d5 Jul. 25, 2023)</span></a>
</span></p><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;"><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-hansi-font-family: Calibri;">This is an
anti-SLAPP case that arises in the context of a somewhat confusing collections
action. So far as I can gather, Defendants owe Plaintiffs about $1 million from
a prior action involving a dispute over the sale of truck stop. During the
prior case, after the jury’s verdict but before judgment had been entered,
Defendants’ attorney recorded $125k in liens against property owned by Defendants.
This case seeks, among other things, to invalidate the liens. It also claims
(and this is where I am confused) something about a sham foreclosure and that
the Defendants interfered with efforts to address soil contamination and one of
the properties and to obtain cleanup funding from an environmental regulator.</span></span></p><span style="font-family: verdana;">
</span><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;"><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-hansi-font-family: Calibri;">Defendants,
filed an anti-SLAPP motion, arguing that the attorney liens were how they
funded the prior litigation, and were thus protected litigation-connected activity
under Code of Civil Procedure § 425.16(e)(2). Because the liens were the “gravamen”
of the whole action, argued Defendants, the whole complaint should be stricken.
But when, during argument, the trial court pointed out that parts of the case—like
the environmental stuff and the foreclosure—had nothing to do with the liens,
Defendants argued that the court could instead just strike parts of the complaint.
The trial court declined to parse the motion more finely, reasoning that it had
no obligation to save Defendants from their overbroad motion and denied the motion.</span></span></p><span style="font-family: verdana;">
</span><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;"><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-hansi-font-family: Calibri;">The Court
of Appeal affirms. It reasons that because Defendants “moved to strike only the
entire complaint, and did not identify in their motion individual claims or
allegations that should be stricken even if the entire complaint were not, the
trial court was permitted to deny the anti-SLAPP motion once it
concluded—correctly—that the complaint presented at least one claim that did
not arise from anti-SLAPP protected conduct.” </span></span></p><span style="font-family: verdana;">
</span><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;"><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-hansi-font-family: Calibri;">The Court
of Appeal holds that “[i]</span>f a defendant wants the trial court to take a
surgical approach, whether in the alternative or not, the defendant must
propose where to make the incisions. <i>This is done by identifying, in the
initial motion, each numbered paragraph or sentence in the complaint that
comprises a challenged claim and explaining ‘the claim’s elements, the actions
alleged to establish those elements, and wh[y] those actions are protected.</i>” (emphasis mine). It
purports to find this rule in <a href="http://caccp.blogspot.com/2021/09/a-firm-line-in-peer-review-sand.html" target="_blank"><i><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-hansi-font-family: Calibri;">Bonni</span></i></a><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-hansi-font-family: Calibri;">’s, statement that “[i]f</span> a cause of action contains multiple
claims and a moving party fails to identify how the speech or conduct
underlying some of those claims is protected activity, it will not carry its
first-step burden as to those claims.”</span></p><span style="font-family: verdana;">
</span><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;">Affirmed.</span></p><span style="font-family: verdana;">
</span><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;">The essential rule here,
that if a moving party files an anti-SLAPP motion against a whole cause of
action, a trial court can deny it without any <i><a href="http://caccp.blogspot.com/2016/09/a-course-correction-on-anti-slapp.html">Baral</a>/Bonni</i>-style claim by
claim parsing, is somewhat of a stretch. After all, in <i>Bonni</i> itself, the
defendant moved to strike a whole cause of action for retaliation. But the
Supreme Court nonetheless picked apart the various retaliatory acts claim by
claim. Justice Kruger’s discussion of parsing in <i>Bonni</i> is in the context
of rejecting an anti-waiver basis for the “gravamen” rule that the Defendants mistakenly invoked here. And her
discussion of the burden of identification does not really anticipate a
requirement for the kind of line by line formalism suggested by the court here.
I don’t have the Defendants’ superior court briefs, but their appellate brief—which
somewhat bafflingly cites neither <i>Bonni</i> nor <i>Baral</i>—does make clear
that the role of the liens in funding the prior litigation is the protected
activity they are going after. That’s the kind of “identification” <i>Bonni </i>is
taking about.</span></p><span style="font-family: verdana;">
</span><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;">The court here, however,
seems to be saying that if a party expects a <i>Baral/Bonni </i>analysis, even
in the alternative, it needs to effectively follow Rule of Court 3.1322(a),
which specifically requires that a notice of motion for a traditional
(non-SLAPP) motion to strike recite each precise item of complaint text to
which the motion is directed. As the Court here recognizes, that kind of rule is
in tension with, and perhaps contrary to, <i>Balla v. Hall</i>, 59 Cal. App.
5th 652, 672 (2021), which applied a <i>Baral</i> analysis in a motion directed
to a whole cause of action for defamation because the moving party’s brief “addressed
individual publications and elements.” There the court observed that “<i>Baral</i>
makes clear that not only can an anti-SLAPP motion attack portions of causes of
action, but also that whether it does so turns on how the issues are framed—not
simply the text of the notice of motion.” <i>Id.</i></span></p><span style="font-family: verdana;">
</span><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;">So there’s a likely split
of authority. Although it’s perhaps on too narrow a procedural point to expect
the Supreme Court to step in to resolve it anytime soon. </span></p><p class="MsoNormal" style="line-height: 115%; margin-bottom: 10pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: verdana;">In the meantime, anyone
bringing an anti-SLAPP motion should take heed of this requirement. Even if the
motion appears adequate to sink a whole cause of action or complaint, argue a <i>Baral</i>/<i>Bonni</i>
analysis in the alternative and identify the various “claims” in the notice of
motion.</span></p>
<p></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-32676900022890534602023-07-18T15:16:00.001-07:002023-07-18T15:16:20.494-07:00Stickin' It to the Man<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/S274671.PDF" target="_blank"><i>Adolph v. Uber Techs.</i>, No. S274671 (Cal. Jul. 7, 2023)</a></span></p><p><span style="font-family: verdana;"><a href="http://caccp.blogspot.com/2022/06/iskanian-only-wounded-and-probably-less.html" target="_blank">I</a> <a href="http://caccp.blogspot.com/2023/03/kim-reigns.html" target="_blank">told</a><a href="http://caccp.blogspot.com/2023/03/kim-reigns.html" target="_blank"> you so</a>. </span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-61179980441414921442023-07-13T08:30:00.001-07:002023-07-13T08:30:00.145-07:00The Limits of the Collateral Order Doctrine in California Appellate Practice<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/G062374.PDF" target="_blank"><i>Longobardo v. Avco Corp.</i>, No G062374 (D4d3 Jul. 11, 2023).</a><br /></span></p><p><span style="font-family: verdana;">An uncodified federal law called GARA puts an 18-year statute of repose on personal injury claims involving a general aviation aircraft from the date of the aircraft’s delivery. Federal and state courts are divided over whether an order denying summary judgment based on the repose is immediately appealable under the federal collateral order doctrine or similar state-law rules. The question in this appeal is whether a superior court’s denial of a SJ under GARA’s repose is an appealable order under California state law.</span></p><p><span style="font-family: verdana;">It isn’t. California recognizes a version of the collateral order doctrine. But it applies only when an interlocutory order directs payment of money or performance of an act. That is, when an order looks an awful lot like a preliminary injunction. One Court of Appeal case from 2009 suggests that this requirement is archaic, but other courts have continued to apply it, and the court does so here.</span></p><p><span style="font-family: verdana;">Notably, the federal collateral doctrine is somewhat broader than that. For good reason. Writ practice in California is more generous than federal mandamus practice under the all writs act. Indeed, the availability of extraordinary writs acts, in many ways, as the kind of safety valve that the collateral order doctrine provides in federal cases. And notably, several kinds of orders—including denials of summary judgment—are <i>statutorily</i> reviewable by extraordinary writ. <i>See</i> Code Civ. Proc. § 437c(m)(1). So there’s no good reason to broaden the collateral order doctrine to include denials of SJ based on GARA’s repose period.</span></p><p><span style="font-family: verdana;">Appeal dismissed.</span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0tag:blogger.com,1999:blog-8776474058745067229.post-45483490345844567592023-07-12T11:01:00.002-07:002023-07-12T11:01:56.858-07:00Service Done Self Is Not Service Done Right<p><span style="font-family: verdana;"><a href="https://www.courts.ca.gov/opinions/documents/B311859.PDF" target="_blank"><i>Braugh v. Dow</i>, No. B311859 (D2d8 Jul. 3, 2023)</a></span></p><p><span style="font-family: verdana;">In this case, the plaintiff, who is an attorney, got a default judgment. Service was based on her handing the complaint packet to the defendant. Although her proof of service recited the fact that she was not a party to the action, it made clear that she was the one who did the handing. Years later, the defendant found out about the judgment and moved to vacate under Code of Civil Procedure § 473(d). The trial court granted the motion.</span></p><p><span style="font-family: verdana;">Under § 473(d), a facially void judgment can be vacated without limitation to time. That includes a judgment that is void for lack of valid service of process. And in the default context, “facially” is a bit of a term of art. Because it includes not just the judgment itself, but the whole judgment roll, which also includes the “affidavit or proof of service; the complaint; [and] the request for entry of default.” <i>See</i> § 670(a). Here, the proof of service says that the plaintiff herself personally served the complaint on the defendant. That violated § 414.10, which says “[a] summons may be served by any person who is at least 18 years of age <i>and not a party to the action</i>.” </span></p><p><span style="font-family: verdana;">Plaintiff tries to argue that she substantially complied because defendant had actual notice. Thus, she says, the unlimited time under§ 473(d)’s facially void rule should not apply. Instead, defendant should have availed himself of § 473(<i>b</i>) which permits vacation of a judgment based on mistake or excusable neglect. And because § 473(b) has time limits, says plaintiff, defendant’s motion to vacate was too late and should have been denied. <br /></span></p><p><span style="font-family: verdana;">The Court of Appeal disagrees. Because they create the fundamental jurisdiction of the court, to justify a default judgment, the service of process statutes must be<i> strictly</i> complied with. (At least until they become a non-issue after a defendant makes a general appearance that waives defects in service.) If the POS admits facts showing non-compliance with the rules, a default cannot be premised on that service. And as such, it is void, forever.</span></p><p><span style="font-family: verdana;">Affirmed.</span><br /></p>Michael Shipleyhttp://www.blogger.com/profile/14536481018279987835noreply@blogger.com0