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.

That Was Always the Intent; Just Don't Ask the Guys in San Diego...

Nutrition Distrib., LLC v. Southern Sarms, Inc., B0280983 (D2d7 Jan. 31, 2018)

So about two years ago, the 4/1 held that when moving for sanctions under Code of Civil Procedure § 128.5—which had been revived by the Legislature in 2014—a moving party was not required to serve the motion 21 days in advance and to offer a chance to withdraw the pleading. (A rule commonly called the “safe harbor.”) According to the court, the safe harbor didn’t apply even though it is specifically codified in § 128.7(c), and a cross reference in revived § 128.5(f) specifically said sanctions had to be imposed “consistently with the standards, conditions, and procedures set forth in subdivisions (c),(d), and (h) of Section 128.7.” I was skeptical.

In Honor of Francis Walsh

Esparza v. Kaweah DeEsparza v. Kaweah Delta Dist. Hosp., No. F071761 (D5 Sept. 21, 2016)

When he wasn’t randomly digressing on the Warsaw Convention, my torts professor managed to say in pretty much every class—to the blank stares of 120 baffled 1Ls—“DON’T FORGET YOUR CODE CLAIM!”  He must have sued the government a lot or something.

No Last Minute Jersey RICO Puzzle for Overstock.com

Overstock.com v. Goldman Sachs, No. A135682 (D1d1, as modified Nov. 25, 2014)

As discussed in my last post, this case involves allegations that Goldman Sachs and Merrill Lynch engaged in illegal naked short selling of shares of Overstock.com. The bulk of the opinion addresses merits arguments related to the trial court’s granting of summary judgment in favor of the defendants.
There is, however, one procedural point of note. 

Very late in the case, defendants stipulated to allow plaintiffs to amend their complaint to add a claim under New Jersey’s RICO act, subject to defendants’ demurrer. The trial court sustained a demurrer to the claim, finding it to be too vaguely pleaded to state a claim that sounds in fraud. The court upholds this ruling. In doing so, it notes that the complaint was defective because the count simply referred to “the actions described above” without assigning any particular act that constituted fraud in the offering, sale or purchase of securities—a key element of the claim. The decision can be fairly read as a rejection what is sometimes derisively called “puzzle pleading”—where the body of the complaint sets out a broad array of alleged acts which the counts incorporate wholesale, without any explanation as to which acts or statements satisfy the actual elements of the claim. Federal courts have caught on to this game, but California state courts, less so. See, e.g., In re Level 3 Commc'ns, Inc. Sec. Litig., 667 F.3d 1331, 1339 n.8 (10th Cir. 2012).

The trial court further denied plaintiffs leave to amend to fix the pleading issues. In affirming, the court explains some important principles. First, the fact that the plaintiff might be able to cure defects in a pleading does not automatically entitle it to amend. An opportunity to amend is “always of grace, not of right” and the trial court maintains significant discretion in affording or denying leave. 
 In addition to futility, the court can consider prejudice, the number of prior amendments, and the timing of the amendment is connection with the progress of the litigation.  Here, plaintiffs’ proposed amendment was based on “a fundamentally different and highly complex claim that could not fairly be injected into the case only two months before summary judgment motions were due and only six months before the already re-scheduled trial date.”  Under the circumstances, the trial court did not abuse its discretion in denying leave. 

Affirmed in part and reversed in part.

Treatment, Impact, What's the Big Diff...

Rosenfeld v. Abraham Joshua Heschel Day Sch., Inc., No. B239581 (D2d3 May 28, 2014)

Suppose you have a statute that has multiple theories of recovery. If you rely on one in your complaint, can you prove up the other when it comes time to try the case? The court here says no. Plaintiff pleaded a disparate treatment age discrimination case. But at trial, she started to argue about disparate impact. The trial court shut that down, and the court of appeal affirms.  This is useful precedent for defense lawyers who litigate cases under laws such as Business & Professions Code § 17200, where a single statute provides a basis for three different theories of liability for which the proof can vary greatly.