PH II, Born Anew

Moran v. Prime Healthcare Mgmt., Inc., No. G060920 (D4d3 Aug. 7, 2023)

This is mostly a case about healthcare law. I don’t do that. But procedurally, this is a rare recent option to touch on the usefulness of the common law motion to strike, so it’s worth a note.

As I said a long time ago, the oft-cited rule that a demurrer lies only to a whole “cause of action” provides a strong incentive for plaintiffs to engage in what I’ve called “claim jamming”—the practice of combining different legal theories into the same count. And because nobody really wants to suffer the brain damaged required to get into the sausage of how a “cause of action” is made, that generally lets crafty plaintiffs shield dubious legal theories from a demurrer (and get discovery on them) by intermingling them with more ordinary ones. It also deprives a defendant of the one real shot it has to get rulings on important legal questions at a relatively early point in a case. 

Some relief from this unnecessary formalism was held out by a Court of Appeal case from almost 30 years ago. In a 1995 case called PH II, the Court of Appeal recognized that an traditional motion to strike under Code of Civil Procedure § 436 permits a trial court to strike out part of a pleaded count that relies on an invalid legal theory, even though it does not dispose of a whole cause of action. That is a useful rule, but for whatever reason, it went essentially unapplied in another published case for a long, long, time. The Supreme Court cited it favorably in 2016 in Baral v. Schnitt—the case that explained how a “special” motion to strike under the anti-SLAPP statute applied to “mixed” causes of action. Even that, however, did not revive the utility of PH II.

But this case applies the PH II rationale. Plaintiff lost most of its claims in a class action in a prior appeal. But the Court of Appeal let one theory go. On remand, Plaintiff amended his complaint to add new theories under the UCL and CLRA. But he jammed those theories into the same “cause of action” as the prior theory endorsed on appeal. The trial court followed PH II and struck the language that implicated those theories, holding that they were not actionable as a matter of law. 

On a death knell doctrine appeal, Plaintiff argued that because Defendant didn’t challenge the part of his claim that was previously blessed by the Court of Appeal, any resolution of the other legal theories needed to await a motion for summary adjudication*. The Court here rejects that argument, finding that the issue “easily falls within the purview of PH II[.]” As the Court explains,  “[t]here is no need for an expensive motion for summary adjudication to add to what must already be the high costs of this almost 10-year-old case. The purported defects are clear from the face of the complaint, and therefore, a motion to strike was proper.”

So now, at least, there’s something from this century to cite for the point.

Affirmed.

*Summary adjudication is similarly limited to whole causes of action under § 437c(f), so not sure what that would be any better.

The Dead Hand of the Past

Ly v. Cnty. of Fresno, No. F072351 (D5 Oct. 12, 2017)

Plaintiffs are some prison guards who claim employment discrimination. But along with their FEHA claims, they also filed a workers’ comp appeal for the emotional injuries that arose from the same alleged discriminatory acts. The workers’ comp cases—which are an ALJ proceedings—moved faster than the discrimination case in court. The ALJs found adversely to plaintiffs in each of the workers comp cases, with each case finding that the adverse actions were not motivated by discriminatory animus.

Primary Rights and Reply Separate Statements

Soria v. Univision Radio, L.A., Inc, No B263224 (D2d7 Nov. 15, 2016)

The court here reverses a summary judgment in an employment case. The opinion mostly deals with employment law stuff. But there’s two worthwhile procedural points in the footnotes.

First, the moving defendant in this case filed a “reply separate statement,” attaching a depo transcript. The trial court struck the filing and sustained an objection to the testimony. (There is, in fact, no such thing as a reply separate statement.) But for some inexplicable reason, the trial court nonetheless relied on the transcript in granting SJ. In the absence of a cross appeal on the evidentiary ruling, however, the Court of Appeal declines an invitation to consider the testimony on appeal.

Second, Plaintiff is suing on two theories of disability discrimination. Either she’s being discriminated against because she’s disabled, or because she’s not but her employer thinks she is. There’s a footnote that says that because plaintiff’s claims represent two factual theories of the invasion of a single primary right, if either theory presents a viable claim, summary judgment shouldn’t have issued. No quibble with the rule. But its not really clear why the right not be discriminated against because you are disabled necessarily implicates the same right against discrimination because you are perceived as disabled. A case could be made either way. But the court just says that it’s the same right. Probably because that’s easier than actually trying to explain the incomprehensible morass that is primary rights doctrine. So I suppose it is. Today anyway.

Reversed.

Hercules and the Not Very Hard Case

DKN Holdings v. Faerber, No. S218597 (Cal. Jul 13, 2015)

In a unanimous opinion written by Justice Corrigan, the California Supreme Court unanimously reverse the court of appeal’s strange ruling on res judicata on more or less exactly the same grounds as I pointed out in a post last year. (That post is one of my best-read ever.) So maybe Justice Corrigan is amongst those who read this blog and take note of the science dropped herein. Or maybe the court of appeal shouldn’t have rested its rationale on the grounds that an earlier Supreme Court decision, clearly on point, was “wrong.” We can only imagine.

Reversed.

Some Special Solicitude to the Government's Primary Rights

People v. Superior Court (Cahuenga’s the Spot), No. B257222 (D2d5 Mar 9, 2015)

LA city attorney Mike Feuer is suing to shut down some medical marijuana operations. The city seeks a bunch of different remedies like nuisance abatement, injunctions, and civil penalties. The city moved for summary judgment on liability only and some equitable remedies, arguing that it was legally and factually indisputable that the operations were in violation of the law. But it did not move on civil penalties. The trial court denied the motion, on the grounds that it did not dispose of the whole cause of action.

The city took a writ, which the court here grants. According to the court, unlike damages, which are clearly an element of a cause of action, civil penalties and equitable relief are extrinsic to it, at least as “cause of action” is understood under primary rights theory under which a single cause of action can have several different remedies. Relying on People v. Superior Court (Jayhill), 9 Cal. 3d 283, 288 (1973)—which held that several UCL “violations” subject to separate statutory penalties all fell within the same primary right—the court holds that a summary judgment on liability that did not resolve the remedies issue nonetheless was sufficient to resolve the entire cause of action.

Writ granted.

I have to say, I don’t really understand the reasoning of this opinion. Based on its logic, a civil plaintiff should be entitled to a summary judgment if it can establish that damages exist even if the number is disputed. But several cases—not addressed here—say otherwise. The reliance on the notoriously vague primary rights theory compounds my confusion. (Viz., each dollar of damage on a breach of contract also doesn’t violate a separate primary right.) I really doubt that any appellate court would entertain such an argument by a private plaintiff. But it’s the government, so . . . .

Taking Primary Rights (Too) Seriously

DKN Holdings v. Faerber, No. E055732 (D4d2 Apr. 25, 2014).  

The court holds that a judgment that plaintiff won against one of three jointly and severally liable defendants is res judicata as to the other two because the claims against all three defendants assert the same primary right. Thus, as to these defendants—who were sued in the original case but dismissed without prejudice because they weren’t served—plaintiff cannot get any recovery in a later filed action. I’m not so sure.