Magic Words Sometimes Make a Difference

Simgel Co. v. Jaguar Land Rover N. Am., No. B292458 (D2d8 Oct. 1, 2020)

This is a pretty ridiculous lemon law case about some very minor electrical problems regarding the power windows in a Jaguar. (Tom Magliozzi, for one, would be rolling in his grave to hear about electrical issues in a British import…) In answering the verdict form, the jury checked the box on the verdict form indicating that the car had no material defect. But, because the parties failed to indicate that a “no” answer meant the jury should stop, the jury went on to find that the Plaintiff had timely revoked acceptance and that there were $26k in rescission damages.

Procedural Footfault Dooms Objector's Appellate Standing

Eck v. City of L.A., No. B289717 (D2d7 Oct. 15, 2019)

In Hernandez v. Restoration Hardware, the California Supreme Court held that a class action settlement objector cannot appeal the overruling of her objections unless she becomes a “party aggrieved” of record under Code of Civil Procedure § 902. As the Court explained, the two ways to do that are (1) to move to intervene before the judgment is final or (2) to file a § 663 motion to vacate the judgment. If she does either and her motion is denied, she can raise the issue on an appeal from the denial.

Objector here filed a motion to intervene, which was denied. And then she filed a § 663 motion, which was also denied. Problem for her is that while she filed a notice of appeal on the intervention motion, she didn’t file a second notice to appeal the denial of her post-judgment § 663 motion. Yet, she didn’t argue in her brief that intervention was wrongly denied.

Objector contends that just filing of a § 663 motion was sufficient to give her standing under § 902 to reach the merits of her objections, even in her intervention appeal. But that doesn’t make sense, and it isn’t supported by authority. 

You can’t appeal an order outside of your notice of appeal, although the notice is construed liberally. Here, Objector’s notice on the intervention was filed before her § 663 motion was denied, so it couldn’t have encompassed that order, however liberally construed.

So because Objector appealed only the trial court’s denial of her motion to intervene, the merits of the intervention motion posed a gating procedural issue. Objector had to convince the Court of Appeal that intervention was wrongly denied before it could reach the merits of her objection. And since she didn’t even try to do that, she lacked appellate standing.

Appeal dismissed.

IT IS SOOOOO ORDERED!!

Machado v. Myers, No. D073824 (D4d1 Sept. 10, 2019)

This somewhat ugly boundary dispute between neighbors involves, among other things, encroaching tree roots and the placement of an air conditioning unit. It got resolved in a settlement, which was orally read into the record. The parties agreed the trial court would retain authority to enforce it under Code of Civil Procedure § 664.6. It seems, however, that the parties didn’t have the settlement entered as a formal judgment at that time.

A year later, a dispute broke out. Plaintiff moved under § 664.6 to enforce the settlement, including a proposed judgment that tracked the oral settlement. The court granted the motion, but still did not enter judgment. And then another dispute broke out. In connection with that motion, the Plaintiff again submitted a proposed judgment. But this judgment wasn’t the same as what the parties put on the record. The trial court signed it anyway.

That was error. Section 664.6 permits a court “enter judgment pursuant to the terms of [a] settlement.” The settlement needs to be either stated orally on the record or in a written agreement signed by the parties. Whatever judgment is entered needs to be identical to what was put on the record. A court has no power under § 664.6 to add or subtract from a settlement’s terms. Although a court has some leeway under § 664.6 to interpret a settlement, that’s not what happened here. 

The Court explains, however, that Defendant was not entitled to relief under § 473(d), which permits a court to vacate void judgments and those entered as a result of clerical error. The judgment here was legally erroneous. That doesn’t make it void. Or a clerical error.

Instead, Defendant should have been afforded relief under § 663, which permits a court to vacate a judgment that has been entered as a result of legal error. In so finding, the Court of Appeal rejects two of Plaintiff’s procedural arguments against relief under § 663. 

First, like a new trial motion, a § 663 motion has a special briefing and hearing procedure, codified in § 663a. Generally the motion is initiated by filing a “notice of intention” within a prescribed window of time, then the opening brief is due ten days later. See § 663(a), (d). But the Court of Appeal finds that filing a notice of motion with a brief attached is sufficient to satisfy the notice of intention requirement, so long as the filing is timely. And second, although the point of the motion is to have the court enter a different judgment, the Court of Appeal holds that there’s no per se requirement that a moving party submit a proposed judgment along with its motion. 

Thus, on remand, the trial court should vacate the judgment and enter a new one that conforms with the settlement that had been stated on the record.

Reversed.

On Appealablity

Donohue v. AMN Servs. Inc., No. D071865 (D4d1 Dec. 10, 2018)

The Court of Appeal here affirms a summary judgment for the defendant in a wage and hour case. Something about time clock rounding.

But the interesting procedural issue is the Court’s refusal to consider on appeal plaintiff’s post-judgment ex parte motion to strike the summary judgment. The court goes at this a few different ways, and some of them seem a little shaky. But maybe that’s because the law itself is kind of shaky.

Brushclearing.

Ryan v. Rosenfeld, No. S232582 (Cal. Jun. 15, 2017)

Code of Civil Procedure § 663 permits a post-judgment motion to vacate a judgment, under certain specific circumstances. Generally, but without elaboration, a bunch of cases say that an order denying a § 663 motion is an order made after an appealable judgment, and thus appealable under § 904.1(a)(2). Problem is that a 1978 Supreme Court case—Clemmer v. Hartford Insurance Company, 22 Cal.3d 865 (1976)—somewhat inexplicably says it isn’t, in tension with a bunch of earlier Supreme Court cases.

The Court of Appeal here felt bound by Clemmer, so it held that the appeal—timely based on the date of entry of the § 663 order but tardy if counted from the date the underlying judgment was entered—needed to be dismissed. The Supreme Court stepped in to clarify the situation. And so the Court unanimously clears the brush without much ado: Clemmer was wrong. An order denying a § 663 motion is separately appealable under § 904.1(a)(2). And Clemmer is disapproved.

Reversed.

Sketchy Default; Sketchy Vacation ...

Grapo v. McMills, No. A147522 (May 23, 2017)

So this case involves a crazy default judgment scenario where an individual was served with a pro se complaint with his name in the caption, but he wasn’t mentioned in the counts. He didn’t respond. His default was taken, but before the default judgment was entered, he died. Plaintiff tried to get a $10 million judgment, which was rejected. Then he amended the complaint and sought $12 million, but the complaint also mentioned $60k in lost property. The trial court ultimately signed off on a $60k judgment.

This Would Make Me Yelp!

Hassell v. Bird, No. A143233 (D1d4 Jun. 7, 2016)

Wow. Back-to-back Yelp defamation cases. It must be a cottage industry or something. And while I might have had a few quibbles with some of the intermediate steps in the analysis on the last one, this one really manages to go off the rails.

More Non-Judgment Judgments

Lee v. Silveira, No. F067723 (D5 as modified June 8, 2015)
 
A PI plaintiff makes a § 998 offer of judgment for a million dollars. Defendant does not accept. The verdict was more than $1 million, but the court reduced the award under Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541, 548 (2011), which says the plaintiff is entitled to a damages award in the amount of her paid medical bills, not the amounts first billed, because the bills have no relationship with economic reality. After the reduction, the award dropped below $1 million. It is pretty clear that had the jury been asked calculate damages under Howell, the plaintiff wouldn’t have beaten the offer and thus couldn’t shift her substantial expert costs to defendant. The fact that the trial court did so post-hoc shouldn’t lead to a different result. The court so holds.

The court goes on to address a second issue regarding post-judgment procedure. Like a lot of post-judgment issues, it turns on the timing of the judgment. The jury’s original verdict was reflected in a document called “Judgment on Jury Verdict,” which, notwithstanding its title, specifically noted that it was subject to post-trial adjustments for the medical expenses and prejudgment interest. Defendants moved to reduce the “judgment” for the delta between the paid and billed expenses. Plaintiff did not contest the adjustment, but argued that prejudgment interest and her expert fees should be tacked on before the court made the adjustment. The court agreed with plaintiff and ultimately entered a new, final judgment that included the interest and fees.  Defendant then moved under Code of Civil Procedure § 663 to vacate the judgment and enter a new one.

Plaintiff argued that the first “Judgment on Jury Verdict” was a bona fide judgment and thus should have been attacked by a motion for new trial. So when Defendant’s first motion was effectively denied, that was like denying a new trial motion, which is an appealable order that divests the court of jurisdiction to act further.

Problem is, an order that foresees further action by the trial court is not a judgment even if it has the word “judgment” in its title. (I really wish trial courts wouldn’t do that because of the chaos it tends to create, but it happens all the time.) So a post-verdict, pre-judgment motion directed to a remedy within the province of the trial court was entirely proper. And then when a legit final judgment did enter, a § 663 motion was an appropriate vehicle for defendant to use to have it corrected.

Affirmed.