Relatedness Is Not Liability

Bader v. Avon Prods., Inc., No. A157401 (D1d4 Sept. 29, 2020)

Plaintiff in this case is a lifelong Californian who claims she got mesothelioma from a lifetime of using Avon products containing talc that was allegedly contaminated by asbestos. Avon objected to personal jurisdiction, claiming that Plaintiff had not satisfied the “relatedness” prong of the specific jurisdiction inquiry, which asks whether the plaintiff’s claims are substantially connected to the defendant’s in-state contacts. The trial court found that relatedness had not been established and dismissed for lack of personal jurisdiction.

Avon’s relatedness argument here is, charitably, a stretch. Plaintiff says Avon sold her talc products in California and that the talc gave her cancer. That seems like it should be enough relatedness for specific jurisdiction. (Generally, in products liability cases, relatedness arguments come up when plaintiffs engage in forum shopping by suing where they have only tenuous connection, such that their injuries have little to do with the defendant’s in-forum sales. Like when someone from Iowa sues in California based on a product that was purchased in Iowa.) 

Avon, however, says that the Supreme Court’s rejection of California’s “sliding scale” relatedness test in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1776 (2017) also requires Plaintiff to show that the talc that Avon sold her in California actually contained asbestos in order to establish personal jurisdiction. The Court of Appeal rejects the argument, more kindly than I would. Because it’s basically nonsense. 

Sliding scale relatedness was a short lived effort to concoct a junior varsity version of general jurisdiction after the Supreme Court limited general jurisdiction to states where the defendant is “essentially at home.” See Daimler AG v. Bauman, 134 S. Ct. 746 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011). Skirting that rule, a 4-3 majority of the California Supreme Court held that when a defendant has lots and lots of connections in the forum state—sort of akin to the “systematic and continuous” test that applied for general jurisdiction pre-Goodyear and Daimler, see Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)—the nexus between the defendant’s contacts and the plaintiff’s claims could be pretty tenuous. But the U.S. Supreme Court granted cert from that decision, ultimately finding that the sliding scale test was inconsistent with due process. Bristol-Myers, 137 S. Ct. at 1781–82. Specific jurisdiction thus requires some substantial relationship between the contacts and the claim irrespective of what other non-claim related contacts the defendant might have in the forum, regardless of how significant those contacts are.

So far, all good. 

But what neither Bristol Meyers nor any other court has ever said is that, to show relatedness, the plaintiff has to affirmatively prove, as jurisdictional matter, that the defendant’s in-forum sales actually caused her injury. That would make the test for personal jurisdiction—a question usually resolved at the outset of the case—impossibly high and unduly complicated. So high and complicated that a plaintiff couldn’t hale a defendant into a court in her home state for selling her an allegedly defective product in her home state unless she arrives at the courthouse on day one loaded for bear with expert testimony on causation. That doesn’t make any sense.

Reversed.

Big Mess on Due Process and CDA

Hassell v. Bird, No. S235968 (Cal. July 2, 2018)

Like me, the California Supreme Court found this 2016 opinion problematic. It granted review and now issues one of the more fractured opinions I've seen from the Court in recent years.

Court Can't Force a Cottle by Surprise

Dept. of Forestry & Fire Protection v. Howell, No. C074879 (D3 Dec. 6, 2017)

In complex cases, California trial courts are afforded some procedural leeway to come up with means to streamline the litigation and make it more efficient, so long as the procedures don’t run afoul of any constitutional provision, statute, or rule. One such innovation was blessed in Cottle v. Superior Court, 3 Cal. App. 4th 1367 (1992), which permitted the use of a kind of pretrial preliminary hearing, where the plaintiff in a complex case can be required to come forward with prima facie evidence on a key element as a condition to getting to trail. 

The trial court in this case—a complicated muti-defendant case where a state agency is trying to get reimbursed for its costs in fighting a 60,000 acre wildfire—tried to use a Cottle procedure to winnow the case down. Problem is, it did so in a completely unfair way. Two days before the pretrial conference, it gave the parties notice that it might conduct a Cottle hearing. It did not, however, identify the issues that would be subject to it. Plaintiffs were ultimately afforded a half-day’s notice that they would be expected to make a prima facie evidentiary showing on key issues of causation. They tried to make that showing—while also arguing an oral motion for judgment on the pleadings and haggling about jury instructions. But the trial court found they failed to so and dismissed the claims.

In Cottle plaintiffs were given months of notice about the issues they would need to prove up and permitted to offer detailed written presentations, along with argument, as to why they set out a prima facie case. In contrast, here, the whole thing was kind of a ramshackle oral presentation done on almost no notice, jammed into a pretrial conference where a bunch of other stuff was going on. The Court of Appeal finds that, under the circumstances, the trial court’s running the Cottle process as it did violated plaintiffs’ rights to procedural due process.

While that would ordinarily mean a full reversal, the Court of Appeal, however, goes on to sustain a judgment on the pleadings based on a statutory interpretation issue that kills off all, or essentially all, of the claims. (There’s a dissent that disagrees on this point.) 

And then the court decides a bunch of other stuff in an unpublished part. So the case is remanded, but it doesn’t look like there’s much left to do.

Reversed.

Giving the Devil the Benefit of Civil Procedure, for Safety’s Sake...

Emerald Aero, LLC v. Kaplan, No. D070579M (D4d1 as modified on rehearing, Mar. 21, 2017)

I’m a little skeptical of the benefits of arbitration. The lack of formal procedure, in particular, makes me a bit queasy. But this case shows that some things are too much, even for arbitration.

You Can Now Stop Drafting Those Rough Proportionality Instructions

City of Perris v. Stamper, No. S213468 (Cal. Aug. 15, 2016)

The Court of Appeal decision in this case came down more than three years ago. I wrote about it in one of my first posts. Without rehashing too much, it deals with the right to jury trial in eminent domain cases. In particular, certain valuation issues are logically dependent on whether the government can permissibly impose a dedication of land as a development condition under the U.S. Supreme Court’s Nolan/Dolan framework. The Court of Appeal held that the fact issues bound up in that determination had be be tried by a jury under article I, section 19 of the California Constitution, which affords a jury trial right as to the amount of just compensation in eminent domain proceedings.

Justice Liu, writing for a unanimous court on the issue,* thinks differently. The state constitution requires a jury trial only of fact issues that relate to the compensation. It does not require a jury for fact issues not related to compensation, or to issues of law or mixed questions of fact and law where the legal question predominates, even if they are antecedent to the valuation question. 

While the Nolan/Dolan inquiry certainly has a factual underpinning, the inquiry generally entails the application of a constitutional law framework to known facts. Because the court is scrutinizing the sufficiency government agency’s decision and its evidentiary basis, there should be little need to weigh conflicting evidence and engage in the kind of fact-finding that falls within the customary ken of a jury. Instead, the court is called upon to “decide . . . . fundamental questions about the limits of lawmaking power”—legal questions that should rest with the court. That is the case even though, literally speaking, the ultimate valuation question does, to some degree, turn on the answer to the Nolan/Dolan question. That they are “analytically prior” or “sub-issues” to the assessment of the amount of just compensation, does not bring them within the jury trial right.

Court of Appeal reversed.

*Justice Cuellar dissented on a second issue on which the court granted review—a specific and technical issue of eminent domain law called the “project effect rule.” But he concurred in the court’s resolution of the jury trial right issue.

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.

From Now on, Just Demand $1 Trillion . . .

Dhawan v. Biring, No. B257977 (D2d5 Oct. 28, 2015)

Plaintiff here what I and every lawyer who has filed a state court complaint arising from a business dispute has probably also done. Notwithstanding Code of Civil Procedure § 425.10(a)(2)—which says that “[i]f the recovery of money or damages is demanded [in a non-personal injury case] the amount demanded shall be stated”—Plaintiff’s prayer for relief said only that he was entitled to damages “according to proof.” After all, in a case where the damages calculation likely depends on the testimony an expert who might not even be hired for many months, who wants to commit?

Generally it makes no difference. Under Code of Civil Procedure § 580(a), in a contested case the court can grant any relief consistent with the complaint, regardless of what’s in the prayer. But when defendant defaults, it becomes a bigger deal, because in those circumstances § 580(a) expressly prohibits any award of relief not demanded in the complaint. 

Defendant here did default, however, and that put Plaintiff in a pickle. Amending his complaint to state the now-absolutely necessary damages demand would require Plaintiff to serve Defendant anew and thus effectively relieve Defendant from the entered default on the original complaint. What’s the chance a defendant defaults twice? So to avoid that option, Plaintiff served Defendant with a “statement of damages” under Code of Civil Procedure § 425.11—which authorizes this practice in personal injury cases where, as an exception to the general rule, a plaintiff is not allowed to plead a damages number. The trial court ultimately entered a default judgment on the amount in the notice.

More than a year later, Defendant moved to vacate the judgment as void under Code of Civil Procedure § 473(d) because the damages exceeded those pleaded in the complaint. The court of appeal agrees, and reverses. 

Because of the due process issues implicated in defaults, § 580 gets strictly construed. Prior cases have held, for instance, that if the number isn’t in the complaint, it’s not enough even if Defendant had actual notice of the damages. Given that, the court isn’t inclined to let § 425.11 serve as an end-around of the facial requirement under § 580 that an ordinary plaintiff plead his damages in his complaint. For the same reason, Plaintiff couldn’t smuggle notice of his regular damages onto his statement of his punitive damages—the amount of which which also can’t be pleaded—as required under Code of Civil Procedure § 425.115. 

Further, a default judgment for more than demanded damages isn’t just voidable; it’s full-blown void. So it is subject to collateral attack under § 473(d), which doesn’t have the same time limits and factual predicates that apply to an attack on a merely voidable judgment under § 473(b).
 
Reversed.

A Double Secret Fee Application

Concepcion v. Amscan Holdings, No. B247832 (D2d7 Feb. 18, 2014)

This is an appeal of an attorneys fee award arising out of a settlement of five different class actions against the Party City stores for collecting zip code information. The parties agreed the class would get $300,000 in certificates for merchandise but did not agree to a fee award. Plaintiffs sought $350,000, which Party City opposed on the grounds that much of the work between the various plaintiff lawyers appeared duplicative. The trial court was initially inclined to agree with Party City, but invited the plaintiffs to submit supplemental information in camera. Plaintiffs took the invitation, after which the trial court approved the full award. Party City appealed. The court of appeal first holds, following the recent Ruiz decision, that Party City did not waive any right to appeal because the settlement agreement lacked clear waiver language. Furthermore, by relying on information filed in camera in approving the award, the trial court violated Party City’s right to due process. Although plaintiffs could have permissibly redacted their bills of privileged matters, the trial court was not free to base an attorneys fee award on information that Party City could not see, and thus could not contest.

Reversed and remanded.

Too Much Drama to Handle in an Unlawful Detainer

Martin-Bragg v. Moore, No. B238772 (D2d1 Sept. 3, 2013)

In a colorful unlawful detainer case between parties with significant romantic and financial back stories, in which pretty much every document is asserted to be a forgery, a pro se appellant manages to overturn a UD judgment against him because the dispute implicated the underlying title to the property. Because the title dispute—which was pending in a separate case—raised complex issues of fact, the court of appeal held that trial court should have consolidated the cases and treated the consolidated dispute as a regular civil case. By effectively deciding the title issue in under summary UD procedures that afford no discovery, the trial court erred in a manner that prejudiced appellant’s rights to have the title issue resolved in an ordinary civil case with full procedural protections. Reversed.