Scott v. City of San Diego, No. D074061 (D4d1 Aug. 1, 2019)
While this appeal was pending, the Legislature amended the FEHA’s costs provision to make clear that costs could not be awarded against a plaintiff who brings a non-frivolous claim, even when that plaintiff fails to beat a Code of Civil Procedure § 998 offer. The Court of Appeal here holds that the amendment was a clarification, not a change, in the law, such that the standard could be applied to pre-amendment claims. At the time the fees were awarded, there was a split of authority in the Court of Appeal interpreting the pre-amendment statute. Plus, the legislative history of the bill contained strong statements of intent to clarify, not change, the law. That was enough to get the court here comfortable with applying the “clarified” standard to the cost award in this case.
Reversed.
Showing posts with label calfiornia code of civil procedure. Show all posts
Showing posts with label calfiornia code of civil procedure. Show all posts
Friday, August 16, 2019
Friday, March 1, 2019
Personal Service Required
Meza v. Portfolio Recovery Assocs. LLC, No. S242799 (Cal. Feb. 15, 2019)
This case concerns a procedural issue in limited civil cases. But it arises in a federal debt collection case where the Ninth Circuit certified a question to the California Supreme Court. Plaintiff in that case contends that the failure to comply with the the procedure made Defendant’s debt collection process deceptive under the Fair Debt Collection Practices Act.
This case concerns a procedural issue in limited civil cases. But it arises in a federal debt collection case where the Ninth Circuit certified a question to the California Supreme Court. Plaintiff in that case contends that the failure to comply with the the procedure made Defendant’s debt collection process deceptive under the Fair Debt Collection Practices Act.
Friday, August 10, 2018
Not a Prior Agreement
Williams v. Las Posas, No. B282513 (D2d6 Jun. 27, 2018)
Oh good. Another nursing home arbitration case.
The Patient—who suffered a traumatic brain injury in a bike accident—had signed both an admittance agreement and a separate arb agreement. The arb agreement contained a broad clause that required any disputes arising from or related to the admittance agreement or any care provided by the nursing home go to arbitration.
Oh good. Another nursing home arbitration case.
The Patient—who suffered a traumatic brain injury in a bike accident—had signed both an admittance agreement and a separate arb agreement. The arb agreement contained a broad clause that required any disputes arising from or related to the admittance agreement or any care provided by the nursing home go to arbitration.
Wednesday, November 15, 2017
You Have the Right to Demur
Butenschoen v. Flacker, No. BV 310862 (L.A. Super. App. Div. Oct. 16, 2017)
The trial court in a unlawful detainer case denied Tenant’s motion to quash service and ordered her to “file and serve an answer only” within five days. Instead of an answer, Tenant demurred. That led to a default, presumably for failure to answer. Tenant appealed, and the LA Superior Appellate Division reverses.
UD practice has some procedures that are particular to it. Their defining characteristic is very short deadlines. If a defendant moves to quash service and the motion is denied, she gets only five calendar days to file a responsive pleading. But one way in which UD is like ordinary civil procedure is that appropriate responsive pleadings include both an answer and a demurrer. So the trial court couldn’t effectively order Tenant to forego a demurrer, just because the motion to quash was denied. So the default’s no good.
Reversed.
The trial court in a unlawful detainer case denied Tenant’s motion to quash service and ordered her to “file and serve an answer only” within five days. Instead of an answer, Tenant demurred. That led to a default, presumably for failure to answer. Tenant appealed, and the LA Superior Appellate Division reverses.
UD practice has some procedures that are particular to it. Their defining characteristic is very short deadlines. If a defendant moves to quash service and the motion is denied, she gets only five calendar days to file a responsive pleading. But one way in which UD is like ordinary civil procedure is that appropriate responsive pleadings include both an answer and a demurrer. So the trial court couldn’t effectively order Tenant to forego a demurrer, just because the motion to quash was denied. So the default’s no good.
Reversed.
Wednesday, July 5, 2017
Tantamount to Proceeding Without Consent
McClintock v. Djulus, No. D049757 (D4d1 Apr. 14, 2017)
A divorce case gets assigned to a commissioner. Wife, who is represented, signs the consent form but Husband, who is pro per, did not. Indeed, the record doesn’t reflect that at the original hearing Husband was ever given the form or even informed that the “judge” to whom the case was assigned was actually a commissioner. The commissioner made several rulings at that hearing. At a later hearing, after being informed that the presiding officer was a commissioner, Husband objected to proceeding before her. But the commissioner ruled that Husband’s participation in the prior hearing was a “tantamount stipulation” to her presiding over the case.
That was a mistake. A stipulation to a commissioner doesn’t need to be formal or in writing. And indeed, it can sometimes be implied from the fact of actively litigating before a commissioner after the party becomes aware that the presiding officer is not, in fact, a full-blown superior court judge. But that rule can’t apply if a party did not actually know that the “judge” is just a commissioner. And the record here shows that Husband did not.
So it was error to find that husband had engaged in a tantamount stipulation by participating in the prior hearing. And indeed, that error required vacation of all of the commissioner’s orders since she had no authority to act.
Reversed.
A divorce case gets assigned to a commissioner. Wife, who is represented, signs the consent form but Husband, who is pro per, did not. Indeed, the record doesn’t reflect that at the original hearing Husband was ever given the form or even informed that the “judge” to whom the case was assigned was actually a commissioner. The commissioner made several rulings at that hearing. At a later hearing, after being informed that the presiding officer was a commissioner, Husband objected to proceeding before her. But the commissioner ruled that Husband’s participation in the prior hearing was a “tantamount stipulation” to her presiding over the case.
That was a mistake. A stipulation to a commissioner doesn’t need to be formal or in writing. And indeed, it can sometimes be implied from the fact of actively litigating before a commissioner after the party becomes aware that the presiding officer is not, in fact, a full-blown superior court judge. But that rule can’t apply if a party did not actually know that the “judge” is just a commissioner. And the record here shows that Husband did not.
So it was error to find that husband had engaged in a tantamount stipulation by participating in the prior hearing. And indeed, that error required vacation of all of the commissioner’s orders since she had no authority to act.
Reversed.
Subscribe to:
Posts (Atom)