Scott v. City of San Diego, No. D074061 (D4d1 Aug. 1, 2019)
While this appeal was pending, the Legislature amended the FEHA’s costs provision to make clear that costs could not be awarded against a plaintiff who brings a non-frivolous claim, even when that plaintiff fails to beat a Code of Civil Procedure § 998 offer. The Court of Appeal here holds that the amendment was a clarification, not a change, in the law, such that the standard could be applied to pre-amendment claims. At the time the fees were awarded, there was a split of authority in the Court of Appeal interpreting the pre-amendment statute. Plus, the legislative history of the bill contained strong statements of intent to clarify, not change, the law. That was enough to get the court here comfortable with applying the “clarified” standard to the cost award in this case.
Reversed.
Showing posts with label retroactivity. Show all posts
Showing posts with label retroactivity. Show all posts
Friday, August 16, 2019
Tuesday, January 23, 2018
Rule Change Created No Vested Right to Arbitrate
State Farm Gen. Ins. Co. v. Watts Regulator Co., No. B271236 (D2d8 Nov. 30, 2018)
A bunch of insurers are members of an outfit that arbitrates some of the subrogation claims they tend to bring against each other. The subrogation issues here, which involve product liability, would have been arbitrable under the version of the organization’s rules that were in force at the time of the insurable loss. But between the loss and the making of the subrogation claim, the outfit changed its rules to say that going forward, product liability cases would no longer be subject to mandatory arbitration. All the member carriers got notice of the change and had the right to withdraw their membership at any time. So under the circumstances, the trial court correctly found that the rules in place at time of the claim, not the loss, could be fairly applied because the members didn’t have any vested right to arbitrate product liability subrogation claims that had yet to be made at the time of the amendment. The motion to compel arbitration was properly denied.
Affirmed.
A bunch of insurers are members of an outfit that arbitrates some of the subrogation claims they tend to bring against each other. The subrogation issues here, which involve product liability, would have been arbitrable under the version of the organization’s rules that were in force at the time of the insurable loss. But between the loss and the making of the subrogation claim, the outfit changed its rules to say that going forward, product liability cases would no longer be subject to mandatory arbitration. All the member carriers got notice of the change and had the right to withdraw their membership at any time. So under the circumstances, the trial court correctly found that the rules in place at time of the claim, not the loss, could be fairly applied because the members didn’t have any vested right to arbitrate product liability subrogation claims that had yet to be made at the time of the amendment. The motion to compel arbitration was properly denied.
Affirmed.
Monday, April 11, 2016
Pre-Offer Expert Fees Unrecoverable Under § 998.
Toste v. Calportland Constr., No B256946 (D2d6 Mar. 2, 2016)
Plaintiff appeals on a grab-bag of issues after a defense verdict in a wrongful death case. The jury found one defendant negligent but no causation for any of them. There are two procedural issues: a new trial motion based on jury misconduct and the rejection of a § 998 offer.
Plaintiff appeals on a grab-bag of issues after a defense verdict in a wrongful death case. The jury found one defendant negligent but no causation for any of them. There are two procedural issues: a new trial motion based on jury misconduct and the rejection of a § 998 offer.
Thursday, March 24, 2016
Lots of Waivers in Divorce Court
Obrecht v. Obrecht, No. H040827 (D6 Feb. 24, 2016)
Husband in a divorce case objects to personal jurisdiction. His problem is that the record seems to establish that during his first appearance in the case he argued (pro se) the merits of a requested support order. He didn’t move to quash for lack of personal jurisdiction until several months later. But an argument on the merits was a general appearance—sufficient to waive any personal jurisdiction objection.
Husband contests what actually happened at the hearing, but none of the hearings in the case were reported due to the court’s policy of not providing an official reporter in most family law matters. (I.e., a policy like the kind of policy under review in Jameson v. Desta. The Court here drops a footnote to express that it is “deeply troubled” by that policy, but no party raised the issue on appeal.) In the absence of a record of oral proceedings, the trial court’s minute order suggesting the merits, not personal jurisdiction, were argued, was dispositive.
Husband also argues that it is unfair to hold him subject to the orders entered prior to the hearing in which he effectively waived any challenge to personal jurisdiction due to retroactivity concerns. But the court isn’t buying it. The cases he's analogizing to deal with service of process. While it might be unfairly retroactive to hold a party to account for actions that occurred prior to being validly served, the same rationale does not apply to actions that occurred before the time in which the party could be deemed to have waived personal jurisdiction. While service has a temporal element—the case doesn't start for a defendant until he is served—PJ doesn’t work that way. Essentially, personal jurisdiction is a yes/no issue that applies throughout the whole case; either there’s jurisdiction over the defendant or there isn’t.
Husband also waived any challenge to whether he had been afforded timely notice of a hearing. The record is pretty clear that he received less than the sixteen days’ notice of a motion required under Code of Civil Procedure § 1005(b). But to challenge a lack of statutory notice, a party generally needs to raise the issue at the earliest opportunity and demonstrate some prejudice. Here, Husband didn’t challenge the short notice. Indeed, at the first hearing he attended--several months after the motion was decided--he didn’t mention it at all.
Affirmed.
Husband in a divorce case objects to personal jurisdiction. His problem is that the record seems to establish that during his first appearance in the case he argued (pro se) the merits of a requested support order. He didn’t move to quash for lack of personal jurisdiction until several months later. But an argument on the merits was a general appearance—sufficient to waive any personal jurisdiction objection.
Husband contests what actually happened at the hearing, but none of the hearings in the case were reported due to the court’s policy of not providing an official reporter in most family law matters. (I.e., a policy like the kind of policy under review in Jameson v. Desta. The Court here drops a footnote to express that it is “deeply troubled” by that policy, but no party raised the issue on appeal.) In the absence of a record of oral proceedings, the trial court’s minute order suggesting the merits, not personal jurisdiction, were argued, was dispositive.
Husband also argues that it is unfair to hold him subject to the orders entered prior to the hearing in which he effectively waived any challenge to personal jurisdiction due to retroactivity concerns. But the court isn’t buying it. The cases he's analogizing to deal with service of process. While it might be unfairly retroactive to hold a party to account for actions that occurred prior to being validly served, the same rationale does not apply to actions that occurred before the time in which the party could be deemed to have waived personal jurisdiction. While service has a temporal element—the case doesn't start for a defendant until he is served—PJ doesn’t work that way. Essentially, personal jurisdiction is a yes/no issue that applies throughout the whole case; either there’s jurisdiction over the defendant or there isn’t.
Husband also waived any challenge to whether he had been afforded timely notice of a hearing. The record is pretty clear that he received less than the sixteen days’ notice of a motion required under Code of Civil Procedure § 1005(b). But to challenge a lack of statutory notice, a party generally needs to raise the issue at the earliest opportunity and demonstrate some prejudice. Here, Husband didn’t challenge the short notice. Indeed, at the first hearing he attended--several months after the motion was decided--he didn’t mention it at all.
Affirmed.
Friday, February 12, 2016
Nothing Retroactive Here
USS Posco Indus. v. Case, No. A140457 (D1d1 Jan. 26, 2016)
Labor Code § 218.5 permits a prevailing party to recover its fees in certain wage cases. While the case was pending, the Legislature amended § 218.5. Prior to the amendment, it was a pure loser-pays statute—the prevailing party, whether plaintiff or defendant, was simply entitled to a fee award. But under the amendment, the defendant can now recover fees only if the court finds the action was brought in bad faith. Citing retroactivity concerns, the trial court applied the old rule and gave defendant its fees.
But according to the court here, that was error. While there was no evidence that the Legislature intended the amendment to work retroactively, California courts treat cost- and fee-shifting statutes as procedural, not substantive. Procedural changes are essentially prospective—they apply only to procedural events as they occur, even if the facts of the case pre-date the change. Since, as the cases reason, the new rules apply only to litigation events occurring after the change, there are no perceived retroactivity concerns. Thus, the court here should have applied the new version of § 218.5, and in the absence of a bad faith finding, it should not have awarded fees to Defendant.
Reversed.
Labor Code § 218.5 permits a prevailing party to recover its fees in certain wage cases. While the case was pending, the Legislature amended § 218.5. Prior to the amendment, it was a pure loser-pays statute—the prevailing party, whether plaintiff or defendant, was simply entitled to a fee award. But under the amendment, the defendant can now recover fees only if the court finds the action was brought in bad faith. Citing retroactivity concerns, the trial court applied the old rule and gave defendant its fees.
But according to the court here, that was error. While there was no evidence that the Legislature intended the amendment to work retroactively, California courts treat cost- and fee-shifting statutes as procedural, not substantive. Procedural changes are essentially prospective—they apply only to procedural events as they occur, even if the facts of the case pre-date the change. Since, as the cases reason, the new rules apply only to litigation events occurring after the change, there are no perceived retroactivity concerns. Thus, the court here should have applied the new version of § 218.5, and in the absence of a bad faith finding, it should not have awarded fees to Defendant.
Reversed.
Wednesday, July 29, 2015
Applying Rule Change to Pending Case Isn't Retroactive
Siry Inv., L.P. v. Farkhondehpour, No. B251250 (D2d2 Jul. 9, 2015)
While a prior appeal in this case was pending, the Judicial Council amended Rule of Court 8.278 to permit a prevailing party on appeal to recover the fees and net interest expenses incurred in obtaining an appellate bond. On remand from the prior appeal, the trial court awarded those costs to the prevailing appellant, even though the amended rule didn’t come into effect until after the opinion in the first appeal issued. The application, however, wasn’t retroactive, much less impermissibly so, because the rule did come into effect before the remittitur issued. In the court of appeal, a case remains pending until that occurs. And since there was adequate evidence that the appellants did, in fact, incur expenses in securing the bond, the trial court’s award is affirmed.
While a prior appeal in this case was pending, the Judicial Council amended Rule of Court 8.278 to permit a prevailing party on appeal to recover the fees and net interest expenses incurred in obtaining an appellate bond. On remand from the prior appeal, the trial court awarded those costs to the prevailing appellant, even though the amended rule didn’t come into effect until after the opinion in the first appeal issued. The application, however, wasn’t retroactive, much less impermissibly so, because the rule did come into effect before the remittitur issued. In the court of appeal, a case remains pending until that occurs. And since there was adequate evidence that the appellants did, in fact, incur expenses in securing the bond, the trial court’s award is affirmed.
Thursday, February 5, 2015
Club Bylaws Can't Work Retroactive Arbitration
Cobb v. Ironwood Country Club, No. G050446 (D4d3 Jan. 28, 2015)
Some folks are in a dispute with their country club. Four months into the litigation, the club revised its bylaws to say that any member-club disputes go to arbitration. No doubt you would be shocked to hear that that doesn’t work to require the members to arbitrate their already-pending case against the club. Even though bylaws are a contract between an association and its members, a contract can’t be unilaterally amended by one party with retroactive effect to the other party’s detriment without some kind of consideration. Prior cases address this point specifically in the arbitration context.
Affirmed.
Some folks are in a dispute with their country club. Four months into the litigation, the club revised its bylaws to say that any member-club disputes go to arbitration. No doubt you would be shocked to hear that that doesn’t work to require the members to arbitrate their already-pending case against the club. Even though bylaws are a contract between an association and its members, a contract can’t be unilaterally amended by one party with retroactive effect to the other party’s detriment without some kind of consideration. Prior cases address this point specifically in the arbitration context.
Affirmed.
Friday, January 9, 2015
Clarifications Don't Implicate Retroactivity
Satyadi v. W. Contra Costa Healthcare Dist., No. A138948 (D1d5 Dec. 31, 2014)
The state legislature recently amended the Labor Code to make clear that a plaintiff bringing an action under its provisions needs not exhaust any administrative remedies available before the labor commissioner before filing suit. This case addresses the question of whether that amendment applies to cases pending at the time it was passed. The court here holds that it does.
While statutes are generally presumed not to be retroactive, a legislative clarification of a statute that has received inconsistent treatment by the courts applies to pending cases. That was the case here. A Supreme Court case suggested that exhaustion was required, but did not actually decide the issue. A court of appeal case held that exhaustion was not required. And the federal courts were split on the issue. Since the statutory change was consistent with some of the prior interpretation, it was merely a clarification and thus applied to plaintiff’s pending case.
Reversed.
The state legislature recently amended the Labor Code to make clear that a plaintiff bringing an action under its provisions needs not exhaust any administrative remedies available before the labor commissioner before filing suit. This case addresses the question of whether that amendment applies to cases pending at the time it was passed. The court here holds that it does.
While statutes are generally presumed not to be retroactive, a legislative clarification of a statute that has received inconsistent treatment by the courts applies to pending cases. That was the case here. A Supreme Court case suggested that exhaustion was required, but did not actually decide the issue. A court of appeal case held that exhaustion was not required. And the federal courts were split on the issue. Since the statutory change was consistent with some of the prior interpretation, it was merely a clarification and thus applied to plaintiff’s pending case.
Reversed.
Friday, September 27, 2013
Expansion of Recoverable Costs in New CRC 8.278(d)(1) Is Not Retroactive
Andreini & Co. v. MacCorkle Insurance Service, No. A133473 (D1d2 Sept. 25, 2013)
The court addresses two questions about costs recoverable by a successful appellant. First, does the prior version of Rule of Court 8.278, which does not expressly permit a party to recover the cost of borrowing money to post a cash deposit in lieu of an appellate bond, nonetheless permit the appellant to recover its interest cost expense after a successful appeal? Relying on the rationale of last year’s Supreme Court decision in Rossa v. D.L. Falk Construction, Inc., 53 Cal. 4th 387 (2012), the court says no. Second, does a new version of the rule, as modified by the Judicial Council effective January 1, 2013, to overrule Rossa, and which now expressly permits the recovery of the “fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking,” see Cal. R. Ct. 8.278(d)(1)(G), apply retroactively to the 2010 judgment in this case? Relying on standard retroactivity principles, and recognizing that applying the new rule would increase the cost bill by more than $200,000, the court declined to apply the new rule retroactively in the absence of any express intent by the Judicial Council that it should do so. Reversed.
The court addresses two questions about costs recoverable by a successful appellant. First, does the prior version of Rule of Court 8.278, which does not expressly permit a party to recover the cost of borrowing money to post a cash deposit in lieu of an appellate bond, nonetheless permit the appellant to recover its interest cost expense after a successful appeal? Relying on the rationale of last year’s Supreme Court decision in Rossa v. D.L. Falk Construction, Inc., 53 Cal. 4th 387 (2012), the court says no. Second, does a new version of the rule, as modified by the Judicial Council effective January 1, 2013, to overrule Rossa, and which now expressly permits the recovery of the “fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking,” see Cal. R. Ct. 8.278(d)(1)(G), apply retroactively to the 2010 judgment in this case? Relying on standard retroactivity principles, and recognizing that applying the new rule would increase the cost bill by more than $200,000, the court declined to apply the new rule retroactively in the absence of any express intent by the Judicial Council that it should do so. Reversed.
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