The Wrong Remedy

Pina v. Cnty of L.A., No. B285630 (D2d4 Aug. 7, 2019)

You can’t call expert witnesses at trial if you failed to designate them and offer them up for deposition. There’s one exception that rule. Code of Civil Procedure § 2034.310 permits a party to call an undesignated expert to “impeach the testimony of an expert witness” called by the other side. But in this context “impeach” means only to testify to the falsity or nonexistence of some fact on which impeached expert relied. The statute expressly prohibits an undisclosed expert from contradicting the impeached expert’s opinion. See § 2034.310(b).

Here, the trial court permitted an undisclosed expert to “impeach” the plaintiff’s expert by contradicting his opinion testimony on causation. The supposed justification for that was that the expert relied on discovery material Plaintiff produced too late in the game for Defendant’s disclosed expert to incorporate into his opinions. That was indeed probably a good excuse to let Defendant augment its disclosure with an additional expert or amend it to address additional topics. See §§ 2034.610, 2034.620. But it was not a justification for an undisclosed expert to give improper “impeachment” testimony that is expressly prohibited by § 2034.310(b). And since admitting the testimony was clearly prejudicial, a new trial is merited.

Reversed.

I Guess It's Not Over

Cnty. of L.A. Bd. of Supervisors v. Superior Court, No. B257320A (D2d3 Jun. 22, 2017)

This is the remand in County of L.A. v. Superior Court, the Supreme Court’s big decision on the scope of the attorney client privilege from the end of 2016. As when this case was before the Court of Appeal the first time around, the panel seems inclined to read the privilege expansively, even after getting reversed for doing that the first time around.

Back from the Brink on the Attorney Client-Privilege

County of L.A. v. Superior Court, No. S226645 (Cal. Dec. 29, 2016)

As Joe Biden might say, this 4-3 Supreme Court opinion on the attorney-client privilege is a big f@*king deal. 

Our Bills Are Now Privileged

County of L.A. Bd. of Supervisors v. Superior Court, No. B257230 (D2d3 Apr. 13, 2015)

I’m not sure the court of appeal realizes it, but this opinion massively expands the scope of the attorney client privilege in California.

Arbitration Is More Efficient, Except when It Isn't

Assoc. of L.A. Deputy Sheriffs v. Cnty. of L.A., No. B254982 (Feb. 17, 2015)

The union representing thousands of Deputy Sheriffs claims that they are being deprived of pay for so-called donning and doffing time under the terms of their collective bargaining agreement. The CBA requires members to grieve that kind of issue in an individual, not a class, arbitration. The union tried to sidestep that obligation by filing a case in superior court. When the county moved to compel, the union argued that Code of Civil Procedure § 1281.2(c) afforded the court discretion to stay the arbitrations pending a class-wide interpretation of certain terms of the MOU.  The trial court agreed, but the court of appeal reverses.  

Section 1281.2 lets the court stay an arbitration pending a decision on issues  “not subject to arbitration,” which might moot the need to arbitrate. Because the interpretation of the CBA was clearly arbitrable, § 1281.2(c)’s “not subject to arbitration” rule couldn't apply.” So even if it would have been more efficient to for the court to globally decide the question, instead of having it decided 10,000 times in different arbitrations, that’s what the CBA and the law required.

Reversed.

Chin-ups on the Heck Bar

Brown v. County of L.A., No. B249825 (Aug. 29, 2014)

Chalk this one up as one of the more creative prisoner arguments I’ve seen in a while. Plaintiff is doing seventeen years to life for a murder he committed as a teenager. He claims that, because he was underage when he plead guilty, his plea agreement is voidable under Civil Code § 35, which allows minors to disaffirm contracts. Unfortunately for the plaintiff, you can’t use a civil suit to collaterally attack a criminal judgment. That’s what habeas is for. Further, although the plea bargain/contract analogy is oft drawn, criminal law does not wholesale import every aspect of civil contract law. While age is a recognized factor in measuring the voluntariness of a plea, there’s no bright line rule about minors like the one that applies to civil contracts.

Affirmed.

Supreme Court Aggressively Asserts Ambiguity in Pursuit of Proper Policy

City of L.A. v. County of Kern, No. S210150 (Cal. July 7, 2014)

Apropos of the recent hubbub in LA over what is and isn’t a federal question, the California Supreme Court deals with a federal law issue that, practically speaking, only comes up in state court: How long does a plaintiff have to re-file its claims in state court when a federal court declines supplemental jurisdiction under 28 U.S.C. § 1367(c)? Noting a “deep and long-standing national divide” on the issue, the court—continuing its streak of short opinions by Justice Werdegar—unanimously holds that 28 U.S.C. § 1367(d) does mean when it seems to say.

Court Cures County's Reefer Madness

Hernandez v. County of Los Angeles, No. B243194 (D2d5 June 6, 2014)

Randy Hernandez got in a traffic accident on the 110. The CHP officer dispatched to investigate the accident While Randy and the other driver were waiting for the Highway Patrol to arrive, an L.A. County sheriff who happened to be driving on the freeway ran Randy over. Randy died. During the wrongful death case brought by Randy’s daughter, the county put in evidence that Randy used medical marijuana. But none of the county’s experts would attest that Randy’s reefer use bore any causal relationship to his getting run over. At closing, however, the county’s lawyer invited the jury to speculate that that it did. The jury verdict attributed 14 percent of the fault to Randy. The court here reverses.