Gettin' Judgy 'Bout Judgments

Sanchez v. Westlake Services, LLC, No. B308435 (D2d7 Jan. 18, 2022)

This one is a little weird. Parties settle a CLRA case. The settlement lets Plaintiff apply for costs and fees. The trial court awards costs but denies fees. Plaintiff files a notice of appeal from the order denying fees. As a jurisdictional grounds, Plaintiff cites Code of Civil Procedure § 904.1(a)(2), which permits an appeal of an order entered after an appealable final judgment. Ordinarily, that’s the provision that applies to fee award appeals, because ordinarily, fees are litigated post-judgment, and then added to the judgement post-entry as part of a cost award. See R. Ct. 3.1700(b)(4), 3.1702. You wind up with two appealable orders, which then generally get consolidated on appeal. 

But here, because of the settlement, no judgment had entered. There was just a fee order, which is not, in itself appealable. And if it’s not entered after judgment, it’s not appealable under § 904.1(a)(2). After the case was fully briefed, the Court of Appeal pointed that out. In response, Plaintiff tried to argue that, in reality, her appeal was actually from a judgment of dismissal, which had been entered by the court nine months after the denial of the fee award, and indeed, two months after she filed her opening brief in the appeal. Relying on some cases that interpret Rule of Court 8.104(d)(1) and (2)—which permit the court to deem certain premature notices of appeal filed as of the date of entry of judgment—Plaintiff argues that her case should be treated as an appeal from the dismissal.

But the Court of Appeal isn’t having it. This case is not a mine-run 8.104(d) case where someone appeals an order entered slightly before the entry of a formal judgment on it. Indeed, the Court views Plaintiff’s statement of jurisdiction to be misleading, as it did not even try to explain the basic fact that no judgment had been entered. Nor did Plaintiff explain how or why she made a mistake. Nor did she augment the record when the judgment of dismissal was entered by the trial court. It was not until the Court pointed out the flaw that she tried to come up with a post-hoc rationale for appealabilty. That is not good enough.

Appeal dismissed.

And there, yet again, is the #1 lesson about appellate practice that every trial court practitioner needs to know. It might not seem very significant that, after the court or a jury has actually decided everything on the merits, the judge still needs to sign a one sheet that just reiterates the final terms of victory or defeat. But the entry and timing of a judgment are of acts of monumental procedural importance. A judgment entered too early, or too late, or not at all, can cause enormous, unforeseeable, and often irreparable problems in post-trial motions or on appeal. And because these problems often manifest long after the case is no longer the trial court’s problem, the nuances can be lost on the trial judge and his or her clerk too. So, when the time comes, you need to pay incredibly close attention to the entry of judgment and intervene if and when necessary to keep things on the right track.

Expert's MSJ Declaration Needs to Engage to Be Admissible.

Sanchez v. Kern Cnty. Med. Transp. Corp., No. F069843 (D5 Feb 2, 2017)

Plaintiff is a severely concussed high school footballer. He claims that the ambulance crew who transported him to the hospital were grossly negligent in taking too long, exacerbating his injuries. The Ambulance Company obtained summary judgment based on a lack of evidence that whatever additional time was taken was not a cause of any increase in the severity of his injuries.

Key to the grant of summary judgment was that the trial court sustained several objections to the declaration of Plaintiff’s medical expert. Evidentiary objections to summary judgment are often made, but infrequently ruled upon. But the court did so here. In doing so, it applies the same standard as it would were the expert testifying at trial.

Mostly, the objections were granted because the testimony was too conclusive and speculative. He did not specially apply the factual evidence to his analysis, did not explain how the relevant literature set out standards applicable to the facts of the case, and did not so much as review the (apparently much more detailed) medical expert evidence submitted with the Hospital Company’s motion. Indeed, the declaration essentially assumed facts that were unsupported by, or contrary to, evidence in the record about the historical events related to Plaintiff’s injury and transport.

Plaintiff claims, however, that an expert declaration in an MSJ opp doesn’t need to be as detailed as actual trial testimony. But the authorities he relies on did not entail expert declarations that made unsupported factual assumptions. Nor did they involve declarations from moving parties showing that, based on the current literature, the assumptions made by the expert were unsupported and speculative. When that happens, the opposing expert needs to come up with some actual analysis of the application of the standards relied on by the moving party’s expert. It needs to either show some dispute in the relevant literature or in the way it applies to the facts of the case. Conclusory opinions aren’t enough to create disputes when the moving party puts forth legit expert evidence that, if credited, would negate an element of the claim.

By “consider[ing] a significantly incomplete universe of information” Plaintiff’s expert failed to render an opinion “based on matter ... that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” Evid. Code § 801(b). Thus the opinions were appropriately excluded. And in their absence, there were no disputed facts that merited denying summary judgment.

Affirmed.

Sonic III

Sanchez v. Valencia Holding Co., No. S199119 (Cal. Aug. 3, 2015)

This case is kind of a do-over of the second half of Sonic-Calabasas A, Inc. v. Moreno, 51 Cal. 4th 659 (2013) on the law of unconscionability as it applies to arbitration agreements. Justice Liu, joined by most of the court, thinks there are various articulable standards for substantive unconscionability, all of which more or less mean some kind of unilateralism or unfairness that goes well beyond just striking a bad deal. Justice Chin (no longer joined by Justice Baxter, who has since retired) thinks the court should settle on a “shocks the conscience” standard, which he believes to impose a higher burden than other formulations.

This time, however, the court gets to the merits. Everyone agrees that under whatever standards they might apply, the provisions at issue—various limits and exceptions to a contractual right to a de novo appeal to a three-arbitrator panel—aren’t unfair enough to render the agreement substantively unconscionable.

Reversed.

Nothing to See Here. Move Along (to Arbitration).

Sanchez v. Carmax Auto Superstores, No. B244772 (D2d1 Mar. 4, 2014)
 
This is an employment dispute that the defendant moved to compel into arbitration based on an arbitration agreement with its employee. The trial court denied the motion because it found that the agreement was “permeated with unconscionabililty. But Justice Johnson and two of his colleagues in Division One disagree. Because entering the agreement was a take-it-or-leave-it condition of employment, the court agrees that it is mildly procedurally unconscionable. When it comes to substantive unconscionabilty, however, none of the issues raised by the plaintiff or the trial court meet the mark. Mild limitations on discovery, a requirement that plaintiff fill out a claim form, the fact that arbitrated claims would be preclusive on future lawsuits, a requirement that the arbitrator apply the law of at-will employment to the at-will employed plaintiff’s claim, the arbitrator’s discretion to make factual findings, a confidentiality provision, and a prohibition on consolidation of different plaintiffs’ claims were all run-of-the-mill arbitration provisions that did not render the agreement substantively unconscionable. So the agreement should have been enforced by the trial court.

Reversed.