Reply Evidence Can Respond if No New Issues

Savea v. YRC Inc., No. 152379 (D1d3 Apr. 10, 2019)

A demurring defendant asked for judicial notice of a document in its reply brief. New evidence on reply is generally not ok. But when it doesn’t raise new theories or arguments and simply responds to points raised in an opposition, a court has discretion to consider it nonetheless.

Affirmed.

Anti-Vaxer Benchslap!

Brown v. Smith, No. B279936 (D2d Jul. 2, 2018)

Talk about calling bullshit. The Court here took judicial notice that the factual allegation at the core of Plaintiffs’ theory was false and thus that it didn’t need to be taken as true in their complaint. Because Plaintiffs are antivaxers. And because it is not really debatable, California courts have been taking judicial notice of the fact that vaccines are safe and effective since 1925. Which pretty much dooms plaintiffs’ case, in which they claim that their nonsensical anti-scientific feelings give them a constitutional right for their kids to spread measles to other kids in Disneyland. 

Affirmed.

Some Tips for Citing Unpublished Federal Authority

Direct Capital Corp. v. Brooks, No. C081349 (D3 Sept. 22, 2017)

In an order modifying an opinion in a family law case, the court adds two points about citing to unpublished federal court opinions. The first is an uncontroversial statement that Rule of Court rule 8.1115, which says unpublished California appellate cases are unciteable, doesn’t apply to unpublished federal cases. The second, which appears to be more in the way of advice than a rule, is that when a party does do, they should cite to a Westlaw or Lexis number, and if the case isn’t available there, present the case in a request for judicial notice. Good to know.

Deined § 631.8 Motion Proves Probable Cause

Hart v. Darwish, No. B270513 (D2d2 Jun. 1, 2017)

A suit for malicious prosecution generally cannot lie if the court in the underling case denied the defendant’s summary judgment motion. Essentially, the denial substantiates that plaintiff had a reasonable basis to bring suit, even if it does not ultimately prevail. The court here holds that the same concept applies if the court in the prior case denies a defendant’s motion for judgment under Code of Civil Procedure 631.8.

New Trial, Notwithstanding a Lack of Substantial Evidence

Licudine v. Cedars-Sinai Med. Ctr., No. B268130 (D2d2 Sept. 29, 2016)

The court here affirms the grant of a motion for new trial on damages for a law student injured due to a surgical mistake, clarifying the applicable standard for awarding damages based on future earning capacity. So far as procedure goes, the court clarifies some issues with the difference between new trial and jnov motions as well as some evidentiary issues likely to recur on trial after remand. 

Palmetto State Hail Mary Falls Flat in D2d6.

Hawkins. v. Suntrust Bank, No. B264541 (D2d6, on denial of rehearing, April 4, 2016)

Plaintiff’s South Carolina residence got judicially foreclosed on by a court there. She tried to challenge that by filing a wrongful foreclosure case against the bank in Ventura County. But under res judicata principles, the South Carolina judgment is preclusive. Plaintiff tries to argue that there was no personal jurisdiction in the South Carolina case, which would be a legit ground to avoid preclusion. Her problem is that the South Carolina judgment contains a factual finding that she was, in fact, served with a summons and complaint in the judicial foreclosure case. And she can’t attack that factual finding by filing a new case here.

Plaintiff further objects to the taking of judicial notice of the order containing the findings, but that fails too. Generally speaking, court documents are subject to judicial notice of their existence, but not for the truth of any statements contained in them. Here, the service finding in the South Carolina judgment is not significant because it proves that plaintiff was, in fact served. To the contrary, it is significant because it shows that the South Carolina court found she was served, which meets the test for the purposes of preclusion, regardless of whether it is ultimately true or not. 

Affirmed.

Do Not Go Gently into the Tribunal de Grande Instance

Auffret v. Capitales Tours, S.A., No. H040630 (D6 Aug. 21, 2015)

This is a forum nonconveniens case is similar to the Schmidt case we discussed back in February and the Diaz-Barbra case from April. California law affords a trial court two options if it decides that a California forum is inconvenient—it can stay or it can dismiss. Either way, a key to the analysis is that the alternative forum is “suitable.” Sometimes, a foreign forum is suitable on a theoretical basis, but there are contingencies—such a foreign court’s interpretation of its own procedure—that could potentially deprive the plaintiff of any remedy at all. If that’s the case, a stay until it’s clear that the foreign forum will hear plaintiff’s claim is the preferred course.

Mexican Losses Are Plaintiff’s Wins

Diaz-Barba v. Superior Court, No. D066462 (D4d1 May 21, 2015)

A California state court has two options in granting a forum non-conveniens motion: it can dismiss the case entirely or it can issue a stay pending the resolution of the action in another jurisdiction. The latter approach is particularly popular in international cases where it appears that the parties could get justice in a foreign jurisdiction, but it’s not 100 percent certain. If the foreign litigation doesn’t work out, the stay can be lifted and the case proceeds here.