A Hard Road to Ditch a Bum Felon Jacket

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

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

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

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

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

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

Reversed.

Need Some Facts Here.

Fernandez v. Alexander, No. B283949 (D2d8 Jan. 28, 2109)

Medmal case where Plaintiff says her Ortho was negligent by recommending a cast when surgery was called for, which led to some bone callus forming and a deformation of her wrist. Ortho moved for summary judgment on, among other things, causation. Ortho’s expert’s declaration—which Plaintiff didn’t object to—said that the deformation was an equally likely result with either a cast or a surgery. Plaintiff’s expert’s declaration said, without additional detail, that Ortho’s decision “caused Plaintiff’s further deformity of her left wrist.” Ortho objected on lack of foundation. The trial court overruled the objection but granted summary judgment nonetheless. 

The Court of Appeal affirms. A reasoned expert declaration can give rise to a disputed fact issue meriting the denial of summary judgment. But a wholly conclusory declaration of opinion has no evidentiary value. So Plaintiff failed to meet her burden.

Affirmed.

Alpine Esoterica

Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, No. C082306 (D3 Jul. 18, 2018)

Plaintiff in this case suffered some pretty gruesome injuries when she skied into a snow-grooming tiller being pulled by a snowcat. But the trial court granted summary judgment on a primary assumption of risk theory, reasoning that hitting a grooming snowcat is an inherent risk of skiing, and because the evidence didn’t support gross negligence. In opposition to the latter point, plaintiff proffered the declarations of several purported expert witnesses, who asserted that driving a snowcat with a grooming tiller on an open slope was an extreme departure from the standard of care.

Expert testimony has limited utility on the assumption of risk doctrine. Most of the issues—whether the activity is an active sport, its inherent risks, and whether defendant has acted to increase the risks beyond the inherent ones—are treated as questions of law. That said, courts have discretion to receive expert testimony to inform the factual basis for those legal decisions, particularly when the activity at issue and its risks are outside the realm of ordinary experience. 

Problem here, though, is that the experts’ declarations weren’t useful to that exercise. While opining that the standard of care was grossly breached in the context of the facts of the case, they did not actually set out what the industry standards were so that the court could make a comparison. As the Court of Appeal explains: “The problem with plaintiffs’ argument is that the experts’ declarations did not inform the court on the customary practices of the esoteric activity of snowcat driving.” (quotations omitted).

Affirmed.

Party-Appointed Appraiser Is Still an Arbitrator

Khorsand v. Liberty Mutual Ins. Co., No. B280273 (D2d4 Feb. 27, 2018)

Evidence Code § 703.5 strictly limits the admissibility of testimony from judges, referees, arbitrators, and mediators. There are exceptions, including when offered to prove contempt, a crime, judicial misconduct, or a grounds for disqualification. The court here accepts that an effort to prove that a ruling in an insurance claim-related appraisal (a form of arbitration) was procured by fraud falls within those exceptions. Although there’s not much analysis as to why.

But the court rejects a broader claim for admissibility on the basis that the appraiser who offered the declaration doesn’t count as an arbitrator. The procedural setup entailed each party appointing an appraiser, and then the two party appointees appointing a third appraiser, who is commonly called the “referee.” The declarant was one of the party appointed appraisers. The Court holds that even though a party-appointed appraiser might not be considered completely neutral, that doesn’t take him outside of the role of an arbitrator, and thus not outside of the exclusion under § 703.5.

Affirmed.

Anti-SLAPP Movant Can Take the Complaint at Its Word.

Bel Air Internet, Inc. v. Morales, No. B270268 (D2d2 Feb. 26, 2018)

So Code of Civil Procedure § 425.16(b)(2) says that an anti-SLAPP motion should be decided based on the “pleadings” and the “supporting and opposing affidavits stating the facts upon which the liability or defense is based.” But a moving Defendant's burden isn't really evidentiary. It just needs to show the claim “arises from protected activity” which ordinarily is done by reference to the complaint. So while the Defendant could submit evidence to meet that burden, it is not required to. (For instance, if a complaint is based on statements, but omitted that they were made in court, Defendant could put that in a declaration to sustain its burden.) A Defendant is not, in any event, required to prove the truth of any facts pleaded by the plaintiff.

Also, the Court comes down pretty clear you don’t need a reporter’s transcript in the record on an anti-SLAPP appeal. The appeal is de novo based on the filed evidence and pleadings, so the only thing in the oral record would be legal arguments before the trial court. While that stuff might provide some useful context, it is not necessary for the Court of Appeal’s task.

Reversed.

Ambiguities Do Not a Sham Affidavit Make

Turley v. Familian Corp., No. A149752 (D1d2 Dec. 22, 2017)

Under D’Amico v. Board of Medical Examiners, 11 Cal. 3d 1 (1974), you can’t avoid summary judgment by submitting a declaration from a witness that contradicts his or her deposition testimony. But for the rule to apply, it has to really contradict. There can’t just be ambiguities from which inferences of inconsistency could be drawn. 

Which was the trial court’s mistake here. The testimony wasn’t really inconsistent with the declaration. In the course of saying it was, the trial court’s order mischaracterized the depo pretty badly. And in any event, none of it mattered because even the depo testimony, standing alone, was enough to crated a fact dispute such that summary judgment should have been denied.

Reversed.

A Declaration Is a Declaration

Hearn Pac. Corp. v. Second Generation Roofing, Inc., No. A142203 (D1d2 May 2, 2016)

As the court tells it, this case “involves a civil procedure game of cat-and-mouse like none we have before encountered.”

Legal Say-So in Declarations Is Not Evidence

Davis v. Kiewit Pacific Co., No. D062388 (D4d1 Oct. 8, 2013)

In an otherwise procedurally uninteresting employment opinion that was recently order published by the Acting Presiding Justice Nares, the court addressed the initial burden of a party moving for summary adjudication. As has been well-established since the Supreme Court's 2001 Aguilar decision—unlike the federal Celotex standard, where a movant can just “point” to the absence of evidence—in California, the moving party must come forward with evidence to meet its initial burden under Code of Civil Procedure § 437c(c). Applying that rule, the court holds that a declaration that merely parrots the relevant legal standard—here, that the defendant did not have “substantial discretionary authority over decisions” affecting the plaintiff’s work—is insufficient to meet the moving party’s burden. In order to shift the burden, a declaration needs to contain testimony that actually states evidentiary facts that would warrant an inference that the standard has, in fact, been met. Reversed.