Defensive Non-Appeals

Francis v. City of L.A., No. B301021 (D2d1 Jul. 22, 2022)

The City of L.A. won a jury verdict in a retaliation case brought by a forensic criminologist with the LAPD. At the close of Plaintiff’s case the City had moved for nonsuit, which the trial court denied. Plaintiff appeals on some instructional issues. In response, the City argued, among other things, that the non-suit should have been granted.

Plaintiff argues that the City needed to cross-appeal to make that argument. But that’s not right. The denial of a nonsuit is not appealable, and the City couldn’t take an appeal from the judgment, which was in its favor. It was not a “party aggrieved.” Code Civ. Proc. § 902. But what the City can do is raise a nonappealable interim issue like a denied non-suit to show the absence of prejudice arising from an error asserted by the appellant. See § 906. That is, if the Plaintiff failed to come forward with substantial evidence as to an element of her claim, she wasn’t going to win even if the jury instructions were perfect. 

Which is the case here. Retaliation requires proof that the defendant took an adverse employment action. The stuff Plaintiff pointed to did not rise to the level of that.

Affirmed.

We Limn in Limines

McMillin Cos.v. Am. Safety Indem. Co., No. D063586 (D4d1 Jan. 22, 2015)

The case is an insurance coverage dispute where, after denying the insurer’s summary judgment motion on policy interpretation, the court granted a couple of motions in limine that effectively ended the case, in that they ruled that the insurer couldn’t contest liability, but that the plaintiff's damages were entirely offset by prior settlement proceeds. The parties stipulated to judgment and both appealed.

A Pleasant Disposition

Ducoing Mortgage v. Superior Court, No. G050457 (D4d3, as amended Feb. 10, 2015*)

Two related company plaintiffs and sued their insurance broker for failing to procure the right policy but got nonsuited at trial. The court awarded defendant about $50k in costs. In a prior appeal, the court affirmed dismissal as to one plaintiff for a somewhat technical reason, but “in all other respects” reversed and remanded for further proceedings.

After remand, the defendant began efforts to collect on the cost judgment against the affirmed plaintiff. In judgment debtor proceedings related to the collection, the trial court held that the costs judgment remained enforceable versus the losing plaintiff, who took a writ.

In reaching the merits, the court makes a number of comments about the nature of an appellate court’s disposition in California. Under Code of Civil Procedure § 43, an appellate court can “affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.” This usually occurs in a short paragraph at the end of an opinion. Although it need not be exceedingly detailed, a “disposition is not intended to be a riddle, and the directions in the dispositional language, as conveyed by the remittitur, are to be followed by the trial court on remand.” If a party is confused by the disposition, its proper recourse is a petition for rehearing.

Looking to the prior disposition, the court here holds that its disposition reversing the trial court’s ruling “in all other respects” save the technical reason for bouncing the one plaintiff, in effect, vacated of the costs award too. The court further agrees with the petitioner that it would be “patently unfair” to stick it with a full costs award, given that the defendant still faced full liability on remand from the other plaintiff. Finally, the court notes that § 1032 affords a trial court the discretion to apportion costs. When, like here, two closely affiliated plaintiffs are jointly represented, if one loses but the other potentially prevails, a defendant should only be permitted to recover the marginal costs associated with the joinder of the non-prevailing plaintiff.

Writ granted.

**The court modified its opinion on rehearing to note that a petition for rehearing brought to correct ostensible fact mistakes was brought too late.

2,764 Words on Inconsistencies in the Jurisprudence of Expert Disclosure. And Some Other Stuff . . .

Staub v. Kiley, No. C071500 (D3 June 16, 2014)

This med-mal case addresses the expert witness disclosure process under Code of Civil Procedure § 2034.010, et seq. Rather frustratingly, it creates a split of authority with another case from the same district. The two cases were decided within a day of each other, although this case was not ordered published until a month later. Worse, the justice who authored this decision joined the opinion in the previously published case. So we don’t just have an inter-district, an inter-division, or even an intra-division split. It’s a split between two opinions joined by the same justice over a two-day period. By publishing an opinion logically irreconcilable with its own prior published opinion, without so much as recognizing the conflict, the court does a disservice to litigants and trial judges throughout the state, who will be left to muddle through the inconsistent results.

A Lesser Known Motion

Biron v. City of Redding, No. C071094 (D3 Apr. 30, 2014)

I once represented a plaintiff in a case with alter ego issues. At the close of our evidence, defendants filed a motion for nonsuit on alter ego, which the court denied. Had there been a seasoned state court procedure geek amongst the fine lawyers representing defendants, they would instead have done what the defendants did here: File a motion for judgment under Code of Civil Procedure § 631.8(b). 

Why? Because alter ego is an equitable issue where the judge is the trier of fact, even if the underlying claim is a legal one that goes to the jury. A motion for judgment is filed at the same time as a nonsuit motion—the close of plaintiff’s case—but it can be employed only in a bench trial. Unlike a nonsuit motion, which just asks if the plaintiff came forward enough evidence to get to the jury, on a motion for judgment the court can weigh plaintiff’s evidence after he rests and find it insufficient to meet the overall burden of proof. That weighing is permitted because, at the end of the day, the court will be the trier of fact. Why waste time for a defense case if plaintiff’s case is unconvincing? (The Federal rules contain a similar procedure in Rule 52(c). See Ritchie v. United States, 451 F.3d 1019, 1022 (9th Cir. 2006).)

Would it have made a difference? Probably not. But our case in chief was mostly focused on the underlying merits and the worst of the alter ego evidence came out during the cross of witnesses that defendants called in their own case. (Among other things, seems there was some confusion about who was the actual CFO of the principal defendant, with two separate defense witnesses claiming the role.) Based in large part on that evidence, we won a bench verdict on alter ego, which was affirmed on appeal.

Learn Something New Every Day ...

Legendary Investors Group No. 1 v. Niemann, No. B245620 (D2d4 Mar. 25, 2014)

This is a short—albeit dense—opinion reversing a nonsuit under Code of Civil Procedure § 581c that the trial court granted at the close of plaintiff’s evidence. In discussing the standard, the court mentions that in addressing a nonsuit motion, courts cannot consider defendant-favorable testimony elicited from a hostile witness called by the plaintiff under § 776 of the Evidence Code. (§ 776 permits a party to call on direct and cross-examine a witness affiliated with the opposing party.) Apparently, that testimony is not considered part of plaintiff’s case-in-chief for nonsuit purposes. Did not know that.

Reversed.