A Harmless Reversal Affirmed

Prickett v. Bonnier Corp., No. G058575 (D4d3 Oct. 11, 2020)

In an admiralty case arising out of a filmshoot at sea—apparently these are a thing—plaintiff beat back a demurrer on her theory of liability. But then the judge retired. After a debatable change in case law, defendant filed a motion for judgment on the pleadings. The new judge granted it. 

Plaintiff argues that the new judge shouldn’t have revisited the old judge’s ruling. And there is indeed some precedent that following a reassignment, the new judge should not revisit the first judge’s orders. But what happens on appeal if the second judge was right? 

The Court of Appeal notes some “tension between the constitutional mandate to reverse only for miscarriage of justice and the need to conserve judicial resources by discouraging both judge shopping and repeatedly making the same motion.” But the former wins out here. As the second judge’s ruling was correct, there’s no prejudice, and thus no reversible error. 

Affirmed.

Ref Don't Matter if the Decision Was Right

Stella v. Asset Management Consultants, Inc., No. B269207 (D2d7 Feb 6, 2017)

A limited partnership agreement for a real estate investment contains a provision that subjects any dispute arising from or related to it to judicial reference under Code of Civil Procedure § 638. A motion for reference was granted, and the referee subsequently granted a demurrer based on the statute of limitations. The plaintiff appeals both the reference order and the demurrer.*

Taking an interesting tack, the Court of Appeal affirms the sustained demurrer. Then, since the court addressed de novo the merits of the dismissal in exactly the same fashion as it would had the order been by a superior court judge, it finds any error in granting the reference harmless. It thus declines to reach the merits of that decision.

*A § 638 reference is somewhat like an arbitration, but it is subject to the ordinary rules of civil procedure. In the case of a consensual general reference, the referee’s ruling essentially gets entered as a decision of the court, from which a judgment can be entered and then subject to appeal like any civil judgment. See § 644(a).

Guilty, Guilty, Guilty!

CB Richard Ellis v. Tera Nova Consultants, No. G049803 (D4d3 Oct. 7, 2014)

During an effort put a defunct LLC’s members on the hook for its debts, the trial court let the jury see an arbitral ruling—complete with reasoning and factual findings—against the LLC that was the basis of those debts. That was error in that it potentially suggested that the defendants—nonparties in the arbitration—might be bound by the award. The ruling was also hearsay. The court, however, finds the mistake harmless. 

There’s also a jury misconduct issue. Two jurors submitted very brief declarations under Evidence Code § 1150 that another juror had said he knew the defendants and that they were “guilty, guilty, guilty.” That juror, however, submitted a detailed declaration saying he did nothing of the sort, and the court finds that it was not an abuse of discretion for the trial court to rely on the detailed declaration to deny a new trial motion. That seems right. But as I’ve said before, our courts really need to get out of this business altogether.

Affirmed.

The Difference Between New Trial and JNOV

Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics, Inc., No. H038714 (D6 Apr. 22, 2014)

This is some heavy-duty litigation over Mitsubishi’s alleged disclosure of memory chip technology in violation of an NDA with plaintiff, the technology’s inventor. A jury awarded plaintiff almost $124 million. The trial court, however, ordered a new trial on damages, ruling that the jury had used an erroneous measure that assumed plaintiff lost the entire value of the technology due to the disclosure, even though the evidence showed that plaintiff still had the ability to profit from the technology after the breach. In this appeal, Mitsubishi argues that on damages, the trial court should have granted it a JNOV—not just a new trial—and that the court should also have granted a new trial on liability due to improperly admitted evidence.

Another Per Se Reveral Rule Bites the Dust

Robert v. Stanford University, No. H037514 (D6 Feb. 25, 2014)

After plaintiff brought and lost an apparently frivolous employment discrimination case against Stanford University, the trial court awarded Stanford $100,000 for its fees. Although the trial court never made any express written findings in support of the fee award, it made oral findings on the record that supported an award under the governing Christiansburg/Cummings standard. Plaintiff appealed the fee award, relying on Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal. App. 4th 859 (2001), an earlier court of appeal case holding that a court commits per se reversible error when it awards fees to a prevailing defendant in a  FEHA case without making express written findings to support the award. But continuing a notable trend, the court departs from prior precedent and holds that Rosenman’s procedural error per se rule—like most rules mandating automatic reversal for procedural error—runs afoul of Article VI § 13 of the state constitution and Code of Civil Procedure § 475, which permit reversal of trial court rulings only when there is a miscarriage of justice or prejudice to the appealing party. Because it was clear from the trial court’s oral findings that it did not abuse its discretion in awarding fees to Stanford, reversal was not merited.

Affirmed.

Further coverage here.

It's Harmless Error Week

Taylor v. Nabors Drilling USA, LP, No. B241916 (D2d6 Jan. 13, 2013)

Amongst a number of other substantive issues about employment law, the court holds that: (1) absent prejudicial error, an erroneous special verdict form does not merit reversal; and (2) that an award of attorneys’ fees to plaintiff’s lawyer was reasonable.