The Limits of the Collateral Order Doctrine in California Appellate Practice

Longobardo v. Avco Corp., No G062374 (D4d3 Jul. 11, 2023).

An uncodified federal law called GARA puts an 18-year statute of repose on personal injury claims involving a general aviation aircraft from the date of the aircraft’s delivery. Federal and state courts are divided over whether an order denying summary judgment based on the repose is immediately appealable under the federal collateral order doctrine or similar state-law rules. The question in this appeal is whether a superior court’s denial of a SJ under GARA’s repose is an appealable order under California state law.

It isn’t. California recognizes a version of the collateral order doctrine. But it applies only when an interlocutory order directs payment of money or performance of an act. That is, when an order looks an awful lot like a preliminary injunction. One Court of Appeal case from 2009 suggests that this requirement is archaic, but other courts have continued to apply it, and the court does so here.

Notably, the federal collateral doctrine is somewhat broader than that. For good reason. Writ practice in California is more generous than federal mandamus practice under the all writs act. Indeed, the availability of extraordinary writs acts, in many ways, as the kind of safety valve that the collateral order doctrine provides in federal cases. And notably, several kinds of orders—including denials of summary judgment—are statutorily reviewable by extraordinary writ. See Code Civ. Proc. § 437c(m)(1). So there’s no good reason to broaden the collateral order doctrine to include denials of SJ based on GARA’s repose period.

Appeal dismissed.

You Gotta Fight for Your Right to S-J!

Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022)

Summary judgment takes a long time to brief. An MSJ needs to be heard at least 30 days before trial. Code Civ. Proc. § 437c(a)(3). And you need to give 75 days’ notice. § 437c(a)(2). Plus you need to add 5 days for mail service and two days for FedEx. Id. And as the Court here notes, although the summary judgment statute is silent on it, under the e-service statute, you also add two days for email or other electronic service. § 1010.6(a)(4)(B).

Defendant in this case filed an MSJ 107 days before trial, serving by email. But this case is in San Diego, where you need to reserve hearing dates pretty far out in advance. The earliest date the court would hear the motion was a week after the trial date. So defendant filed an ex parte asking to set an earlier date or to kick the trial so the MSJ could be heard. The court denied the application, commenting that Defendant waited too long to bring the motion. Defendant took a writ.

The Court here holds that, so long as a motion is timely under the above rules—that is, served by mail 110 days before trial, 107 days by FedEx or e-service, or 105 days by personal delivery—a trial court is obliged to hear it before trial. The Court cites a number of cases that stand for the proposition. So Defendant was entitled to either a specially set date or a trial continuance. The trial court abused its discretion by denying the ex parte.

Writ granted.

Steady Targets

Field v. U.S. Bank, N.A., No. B309111 (D2d8 Jun. 9, 2022)

In a wrongful foreclosure case, the Bank propounded an interrogatory on Plaintiff, asking whether it was her contention that she did not receive the appropriate form of notice, and if so, to explain the facts in support. Plaintiff answered, simply, but un-enlighentingly, “unsure.”

So the bank moved for SJ, arguing in part that there was no evidence of any notice violation. In response, Plaintiff “claim[ed] with new-found certainty that she had never received th[e] notice.” The trial court granted summary judgment nonetheless. 

Plaintiff appeals, in part based on the idea that her rog response shouldn’t have precluded her from introducing evidence that the appropriate notice was not, in fact, given. But the Court of Appeal, in a characteristically blunt opinion by Justice Wiley, calls bullshit. 

Responding to Plaintiff’s assertion that it was unjust to grant SJ based on her one-word answer to a basic interrogatory asking for information clearly with her knowledge, the Court responds that “[w]hat is unjust is discovery abuse.” “What Field should have done was answer this simple contention interrogatory unambiguously, forthrightly, and truthfully. If her contention was she never got notice of the trustee’s sale, she had to say so and to provide the facts related to this contention.”

And then the money quote to be quoted in many a future brief : “A party opposing summary judgment may not move the target after the proponent has launched its arrow.”

Affirmed.

Having been in this spot as a defendant moving for SJ, this opinion is awesome. 

But, as the Court points out “section 2030.310 provides a mechanism for parties to amend responses to interrogatories under certain circumstances, yet Field did not attempt to amend.” What if, the day before Plaintiff filed her opp, she amended her reg responses to incorporate what she would claim in opposition? I have, over the years, written about cases that say that would have been good enough to beat summary judgment. 

There needs to be a clearer rule here. As I discussed in my prior posts, at minimum, whether a moving defendant can meet its burden should be ascertained based on the rog responses in effect at the time an SJ motion is filed, not those on file two months-plus later when the opposition comes in. To say that the movant retroactively failed to meet its burden, based on some post-motion amendment, is a recipe for gamesmanship. 

And then if, once an SJ is on file, the opponent wants to amend its responses to support the existence of disputes of fact, § 2030.310(c) is implicated. It says that a party answering an interrogatory can be forced to stick with a prior response only if:

“(1) The initial failure of the responding party to answer the interrogatory correctly has substantially prejudiced the party who propounded the interrogatory.

 (2) The responding party has failed to show substantial justification for the initial answer to that interrogatory.

 (3) The prejudice to the propounding party cannot be cured either by a continuance to permit further discovery or by the use of the initial answer [for impeachment].”

It seems to me, in the SJ context, when a non-moving party gives junky original responses to interrogatories, elements (1) and (3) of § 2030.310(c) should basically follow axiomatically, provided element (2) is established. 

That is, if at the time a party moves for SJ, the opponent has made only obviously and unjustifiably deficient responses but tries to amend around them without a good reason to do so, the moving party is substantially prejudiced. After all, it can’t get its meritorious motion decided under the prevailing standard due to its opponent’s discovery abuse. And if there’s no substantial justification for the belated amendment, a continuance doesn’t fix that prejudice. Because the issue is not that the non-moving party didn’t have time to take adequate discovery, but instead, that it was just playing games. As the Court puts it here: “Trial courts encountering such an abuse are free to disregard a later declaration that hopes to supplant tactical or slothful ambiguity with tardy specificity.”

On the other hand, if the moving party was late to produce discovery, or if previously unknown evidence legitimately comes to light after an SJ is filed, of course it is substantially justifiable to permit amendment and not stick the non-moving party with its original interrogatory answers. In that case, (1) and (3) don’t even need to come into play.

 

 

 

I Have Never Seen Your Client. And I'm Not a Florist.

Forest Law Memorial-Park Assoc. v. Superior Court, No. E076549 (D4d2 Oct. 7, 2021).

This one is kind of interesting. It’s a PI case where the main issue is respondeat superior. An Employee of the defendant, a Cemetery, hit someone while driving. The factual question is whether the Employee was merely coming from or going to work―which is generally not viewed as within the scope of employment―or whether he was driving as part of required duties―which is.

On summary judgment, the Employee put in a declaration that said he was basically the front desk receptionist―he never drove anywhere from work. Plaintiff, however, put in a declaration from a lady who said she was Florist, and who said she often saw Employee come by at her shop to pick up flowers for the Cemetery. The Court found that created enough of a fact dispute to deny SJ.

But then the Erstwhile Florist was deposed. She testified she had never seen Plaintiff and didn’t know who he was. She never say any of Cemetery's employees. Indeed, her only connection to the Cemetery is that she had a granddaughter who was buried there. Indeed, EF was not even a florist. She was the customer service manager at a grocery store that had a flower department, where she once picked up the phone when Plaintiff’s lawyer called, because the florist was on her break. EF said that she only signed the declaration because Plaintiff's attorney harassed her by calling twenty-some times, so she signed it to get him to leave her alone. She testified that she signed the document without understanding that it was going to be used in court or the significance of signing a document under penalty of perjury. 

The Cemetery renewed its SJ motion, this time using EF's depo transcript and objecting to the recanted declaration. The trial court again denied SJ. After specific supplemental briefing on this issue, it found that, because the four corners of the declaration failed to show any basis for exclusion, it was admissible. And because the court was not allowed to make credibility determinations on summary judgment, it had to credit EF’s since-disavowed declaration. And that gave rise to a disputed issue of material fact. Cemetery took a writ.

The Court of Appeal grants a writ. EF’s declaration was admissible evidence only if it was made within her personal knowledge, which may be shown by any otherwise admissible evidence, “including [her] own testimony.” Evid. Code § 702(a), (b). And under Evidence Code § 403(a)(2), the proponent of evidence bears the burden to come forward with facts sufficient to sustain a finding that the witness had personal knowledge concerning the subject of testimony. The converse of that rule is that, if the foundational evidence is such that no reasonable juror could or would find the witness has personal knowledge, the testimony is inadmissible under § 702.

Here, the trial court erred in limiting its inquiry to the face of the declaration. As noted, “any admissible evidence” can be considered. Here, that included the depo testimony recanting the declaration and describing shady the circumstances of its creation. And when that is taken into account, the Court finds that no jury could reasonably have found that EF had personal knowledge of the facts in her declaration. The Court notes that there were all kinds of circumstances that could merit a different result, like some corroboration, or the lack of an affirmative account of the circumstances of signing, or some basis to believe EF’s memory was better when she singed than when she was deposed. But since none of that was present here, Plaintiff failed to meet its burden under §§ 403 and 702, even if that is a pretty low bar to meet.

The court also address two ancillary issues. First, Plaintiff argues that the declaration was also admissible as a prior inconsistent statement under 
§ 1235, an exception to the hearsay rule that permits the introduction of such statements as substantive evidence. But § 1235 applies only at trial. Inconsistent statements of hearsay declarations are addressed under § 1202, which permits use for impeachment, but not matters of substance. And in any event, even if the declaration were not hearsay, that wouldn’t make it admissible because it still failed the personal knowledge requirement. (FWIW, the usual requirement of personal knowledge is dispensed with in the case of a party’s admission, Levy-Zentner Co. v. S. Pac. Transportation Co., 74 Cal. App. 3d 762, 787 (1977), but that doesn’t extend to prior insonsistent statements.) 

Finally, the court addresses and rejects Cemetery’s alternative argument that the declaration should have been excluded under the D’Amico rule, which holds that a declaration can’t contradict other sworn discovery responses to avoid summary judgment. The Court finds two reasons D’Amico doesn't apply. 

First, the Court says that D’Amico is premised on the value of party admissions and thus applies only to inconsistencies between parties' declarations and their discovery responses. Inconsistencies regarding third party witnesses like EF don’t fall within the rule. The Court notes in a footnote, however, that two published Court of Appeal cases apply D’Amico to third party witness statements. It disagrees with these cases. And it also explains that the uniform practice of federal courts applying the similar “sham affidavit” rule also applies to third party declarations. But, the Court notes, the federal rule requires the court to make factual findings about sham-ness, which are effectively credibility determinations, while in California, the non-moving party can avoid D’Amico by coming forward with an explanation of inconsistency that could be credited by a reasonable trier of fact.

The Court also finds that D’Amico applies only when the inconsistent deposition testimony happens before the declaration. When the deposition happens afterwards, the parties have a chance to cross examine the witness about the declaration. Sometimes, like here, they can show that the declaration was made without foundational facts being true. But there may be other times where, despite inconsistency, both the depo and the declaration could be admissible and the resolution of the conflict left up to the trier of fact.

Writ granted.

 

Good Enough for Real Docs

Hooked Media Grp. v. Apple Inc., No. H044395 (D6 Sept. 30, 2020) 

The Court of Appeal here affirms a trial court’s summary judgment in a case alleging that a certain computer company poached some engineers from a company it had previously considered acquiring. For anyone who practices in this space, it’s a useful opinion delimiting the typical causes of action. (There’s also a weird concurrence that, so far as I can tell, basically agrees with the Court’s opinion in every essential respect.)

A few things of procedural note, however. First, the Court makes a point on authentication that, in the early days of this blog, I once complained was unaddressed in a published case. (Although I later discussed a case that resolved the issue.) Namely that an attorney declaration attesting that documents were received from the opposing party in discovery is adequate to authenticate those documents when they bear facial indica that they actually came from the producing party. 

Second, the Court affirms the trial court’s refusal to tax almost $100k in e-discovery costs. Although the appellant raised some cogent points as to why the costs were unnecessary, they weren’t enough to overcome the deference given to the trial court on cost issues.

Affirmed.

Formally Deficient ≠ Factually Devoid

Bayramoglu v. Nationstar Mortgage LLC, No. C084299 (D3 Jul. 1, 2020)

Almost 20 years ago, in Aguilar v. Atlantic Richfield Co., the California Supreme Court aligned state summary judgment procedure with federal procedure that he been clarified in a trio of 1986 opinions by the federal supreme court. But Aguilar kept one distinction, grounded in the statutory text of Code of Civil Procedure § 437c(b). While the U.S. Supremes’ Celotex decision permits a moving defendant to meet its burden by simply “pointing out” that there’s no evidence on an element of plaintiff’s claim, under Aguilar, the moving party needs evidence of the absence of evidence to substantiate that assertion. 

Of course, evidence of lack of evidence is kind of a tricky thing to come up with. But, relying on a few earlier cases, Aguilar explained one key kind of evidence moving party could use to sustain its burden: the “factually devoid interrogatory answers.” So, those in the know on state court procedure generally serve an early set of requests for admission on each of the ultimate facts that plaintiff needs to prove, accompanied by an official form interrogatory 17.1 (which requires the respondent to state all facts and identify all evidence that support the denial of an RFA), and then later serve a supplemental rog demand whose response is due a couple weeks before a summary judgment motion will be filed. Junky responses to those ensure you can meet your burden under Agulilar. 

Defendant here basically ran that playbook. It served interrogatories asking the plaintiff to explain what evidence supported its contentions. The responses it got back from Plaintiffs just listed the Bates numbers of a bunch of documents, citing to § 2030.230. The trial court found this inadequate, which, in its view made the responses “factually devoid” so as to meet the moving Defendants’ burden.

The Court of Appeal disagrees, and reverses. Plaintiffs’ responses might well have been deficient under § 2030.230, which only permits a reference to documents when the response “would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party[.]” But that doesn’t necessarily mean they were “factually devoid.”

As an example, the court posits a contention interrogatory that demands all facts supporting plaintiff’s assertion that they own a house. (This is a foreclosure case.) In their response, Plaintiffs cite the Bates numbers to the deed, the sale contract, and the mortgage docs. That response is clearly inappropriate under § 2030.230. Nonetheless, however, the response does, in fact, identify evidence to support the contention. The propounding party there would clearly have a remedy in moving to compel a compliant response. But that wouldn’t make the non-compliant responses citing docs “factually devoid.”

Reversed.

Separate Statement Citation

Wicks v. Antelope Valley Healthcare Dist., No. B297171 (D2d8 Jun. 1, 2020) 

Appeal of a granted summary judgment in a med-mal case. Defendant put in the declaration of an expert who testified about a lack of causation. The expert reviewed the medical records and included them with his declaration. But Defendant’s separate statement cited only the paragraphs of the declaration containing the expert’s opinions. Court here holds that was adequate under Rule of Court 3.1350(d)(3), which requires evidentiary citations in a separate statement to make “reference to the exhibit, title, page, and line numbers” of any cited evidence.

Affirmed.

Wrong Expert, No Detail, No Fact Issue.

Lowrey v. Kindred Healthcare Operating, Inc., No. A153421A (D1d4 May 18, 2020)

Trial court granted a defense SJ in a wrongful death and medmal case against a nursing home. It found there wasn’t evidence that anything the home did caused or worsened the effects of a stroke suffered by a resident. Resident tried to create a fact issue by putting in a declaration from a doctor. But the doctor was a physical therapist, not a neurologist, and the declaration was barebones and conclusory. 

The Court of Appeal finds that in the absence of foundational evidence about how the doctor was qualified to testify about stroke causation or any detail about how he drew the conclusions he did, the declaration was properly excluded from evidence under the Sargon standard.

Affirmed.

That’s What Writs Are For

Marez v. Lyft, Inc., No. A156761 (D1d1 Apr. 30, 2020)

Most of this opinion concerns whether Lyft can be held liable under respondeat superior when one of its driver was driving a car that he obtained in a rental facilitated by Lyft but who was driving for a personal purpose at the time of the accident. The court holds it cannot and affirms a summary judgment for Lyft on that ground. Ok.

But the plaintiff also complains that the trial court erred in limiting some of the issues he could inquire into during a PMQ depo of Lyft. The thing is, however, when you complain about a discovery ruling after a final judgment (as opposed to immediately taking a writ) you need to show that, but for the ruling, there’s a reasonable probably the case would have come out different. Here, the excluded testimony had absolutely nothing to do with the respondeat superior issue that ended plaintiff’s case. So right or wrong, the discovery ruling can’t be reversible error.

Affirmed.

MNT after SJ.

Brewer v. Remington, No. F76467 (D5 Mar. 4, 2020)

The trial court granted summary judgment for the Defendant in a medmal case based on the statute of limitations. Plaintiff moved for new trial, which the court granted, finding it had misapplied the delayed discovery rule. Defendant appealed. See Code Civ. Proc. § 904.1(a)(4) (grant of new trial is appealable order).

Generally, a new trial motion is subject to an abuse of discretion standard of review. That makes sense given that many of the grounds for new trial entail the trial court weighing evidence subject to facts and judgment calls. But whether to grant summary judgment is always a question of law. A new trial motion after a granted SJ just gives a trial court a shot to correct a legal mistake. So on appeal, that gets reviewed de novo, like any other legal question. Which isn’t inconsistent with the general standard because de novo review of legal error is baked into abuse of discretion.

Affirmed.

Whether or not to move for new trial after losing an SJ that results in a final judgment is an tricky strategic choice. On one hand, it superficially doesn’t really hurt. If you lose, the appeal is basically the same, just delayed a little. 

On the other hand, a new trial motion is time consuming. And given the right to appeal a grant, the case is likely going to the Court of Appeal anyways, subject to the same standard of review regardless. Also, sometimes the moving party’s arguments get better. Plus, most trial judges are pretty set on their decisions.

But I guess there's some marginal value, just stats-wise, in being an appellee vs. an appellant. Especially for post judgment settlement. So if you think the trial judge is persuadable, or if there’s some argument that could have been better presented, maybe it’s worth a shot.

Summary Judgment Notice Blues

Torres v. Design Grp. Facilities Sols., Inc., No. B294220 (D2d3 Feb. 13, 2020)

After Defendant filed a summary judgment motion, the Court gave Plaintiff a bunch of time to take discovery. The motion was ultimately denied. But some of what came out in the discovery was actually good for the Defendant. So it moved for reconsideration under Code of Civil Procedure § 1008, arguing that the new evidence that came to light after the SJ was filed merited reconsideration. The trial court granted the motion, agreed, and entered judgment for Defendant.

The Court of Appeal reverses. According to the Court, it was error for the trial court to permit Defendant to use § 1008 to sidestep the procedural protections of the summary judgment statute, § 437c. What defendant filed was, in effect, a new summary judgment motion. So it should have restarted the § 437c process instead of seeking reconsideration.

Reversed.

The Court here doesn’t mention it, but the reason this happened is because of the 75-day notice requirement for an summary judgment motion, which cannot be shortened without the parties’ agreement. Because you need to serve the file-ready version of the motion on the non-moving party so far out, there is not a good way to supplement the record with any evidence that comes out during the two months between the motion and when the opposition is due. So, faced with new information that came out after its motion, but before the hearing, Defendant here was stuck and then tried to fix it on reconsideration. But it seems like the better option would have been to withdraw the motion and refile it, to include the new evidence. If, of course, that was even possible given that an SJ motion also needs to be heard at least 30 days before trial.

One Ruling Down...

Cohen v. Kabbalah Centre Int’l, No. B284446 (D2d8 May 7, 2019)

I really like this a short and amusingly written opinion by Justice Wiley, recently appointed to the 2/8, mostly affirming a summary judgment. It doesn’t have kooky references or anything like that. Just a lot of short, punchy sentences that make it an easy read. It’s not every day you get a published decision that disposes of half a dozen issues in just thirteen pages without feeling like it’s giving the short shift to anything.

Need Some Facts Here.

Fernandez v. Alexander, No. B283949 (D2d8 Jan. 28, 2109)

Medmal case where Plaintiff says her Ortho was negligent by recommending a cast when surgery was called for, which led to some bone callus forming and a deformation of her wrist. Ortho moved for summary judgment on, among other things, causation. Ortho’s expert’s declaration—which Plaintiff didn’t object to—said that the deformation was an equally likely result with either a cast or a surgery. Plaintiff’s expert’s declaration said, without additional detail, that Ortho’s decision “caused Plaintiff’s further deformity of her left wrist.” Ortho objected on lack of foundation. The trial court overruled the objection but granted summary judgment nonetheless. 

The Court of Appeal affirms. A reasoned expert declaration can give rise to a disputed fact issue meriting the denial of summary judgment. But a wholly conclusory declaration of opinion has no evidentiary value. So Plaintiff failed to meet her burden.

Affirmed.

Tall Trees + Unlicensed Gardener = Homeower Liability

Jones v. Sorenson, No. C084870 (D3 Aug. 2, 2018)

As a homeowner, this case scares the crap out of me. 

Homeowner hired a gardener to trim some trees. Gardener then hired plaintiff as a helper. Plaintiff fell off a ladder and got hurt. Plaintiff sued homeowner, on the theory that gardener’s negligence caused her injury, and that homeowner was on the hook under respondeat superior. 

Generally, an injured employee’s only recourse is to workers’ compensation. But if the employer doesn’t have workers’ comp coverage, the employee can sue in tort for negligence. And where a contractor needs to be licensed to perform the work entailed, a person who hires an unlicensed contractor can be subject to liability as a co-employer. 

So the question is whether, in this case, a contractor’s license was required. Under the applicable statute, anyone who trims trees is a contractor. But there are exceptions for: (a) someone “performing the activities of a nurseryperson,” and (b) for “gardeners” engaged in “incidental pruning” of trees under 15 feet tall. The gardener exception doesn’t apply, because the tree was more than 15 feet tall. And the nurseryperson exception doesn’t apply, because (as the Court reads the statutory scheme) that applies to a licensed nursery operator engaged in cultivating plants. The gardener here doesn’t meet that description. 

So the trial court erred in granting summary judgment to the homeowner. 

Reversed.

Alpine Esoterica

Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, No. C082306 (D3 Jul. 18, 2018)

Plaintiff in this case suffered some pretty gruesome injuries when she skied into a snow-grooming tiller being pulled by a snowcat. But the trial court granted summary judgment on a primary assumption of risk theory, reasoning that hitting a grooming snowcat is an inherent risk of skiing, and because the evidence didn’t support gross negligence. In opposition to the latter point, plaintiff proffered the declarations of several purported expert witnesses, who asserted that driving a snowcat with a grooming tiller on an open slope was an extreme departure from the standard of care.

Expert testimony has limited utility on the assumption of risk doctrine. Most of the issues—whether the activity is an active sport, its inherent risks, and whether defendant has acted to increase the risks beyond the inherent ones—are treated as questions of law. That said, courts have discretion to receive expert testimony to inform the factual basis for those legal decisions, particularly when the activity at issue and its risks are outside the realm of ordinary experience. 

Problem here, though, is that the experts’ declarations weren’t useful to that exercise. While opining that the standard of care was grossly breached in the context of the facts of the case, they did not actually set out what the industry standards were so that the court could make a comparison. As the Court of Appeal explains: “The problem with plaintiffs’ argument is that the experts’ declarations did not inform the court on the customary practices of the esoteric activity of snowcat driving.” (quotations omitted).

Affirmed.

"I Don't Believe You" Is Not Evidence

Ayon v. Esquire Deposition Solutions, LLC, No. G054578 (D4d3 Sept. 21, 2018)

Defendant’s employee ran over plaintiff while talking on the phone with another employee. Whether defendant can be liable under a respondeat superior theory appears to turn on the contents of the conversation. At deposition, both employees say they were friends and talking about personal, not work stuff. Plaintiff doesn’t believe them and suggests they had motive to lie.

But that isn’t enough to avoid summary judgment. Disbelief in the truth of a statement is not evidence that the opposite it true. Indeed, Code of Civil Procedure § 437c(e) specifically says summary judgment can’t be denied on credibility grounds. 

There are two exceptions that give a court discretion to deny SJ based on credibility questions. First, when the only evidence is a declaration from an individual who is a the sole witness to a fact. And second, when the issue is an individual’s state of mind and the only evidence is the individual’s attestation thereof. Neither of those apply here. Both employees were deposed. And state of mind isn’t the issue. So absent some affirmative evidence to contradict the employees’ testimony—there was none—there is no dispute of material fact. 

Affirmed.

Inexcusable Neglect Can Still Merit a Continuance

Levingston v. Kaiser Foundation Health Plan, Inc., No. E066271 (D4d2 Aug 17, 2018)

This is some kind of whistleblower case against Kaiser Permanente. Kaiser moved for summary judgment. Plaintiff opposed. Her opposition included some inadvertently disclosed privileged document that apparently belonged to Kaiser. That got her counsel DQ’ed and her opposition struck. The court ordered former counsel not to discuss the document and continued the SJ hearing for six months to let plaintiff get new counsel.

OBJECTION: WRONG!!!!

Webster v. Claremont Yoga, No. B279272 (Aug. 16, 2018)

Customer at a Yoga Studio claims that an Instructor there hurt her back when he put her in various positions. Studio moves for summary judgment.

The Epistemology of Admitted Evidence

Doe v. Good Samaritan Hosp., No. F073934 (D5 May 21, 2018)

An appeal of a defense judgment in a med-mal case. Defendant put in a very conclusory expert declaration that the hospital met the standard of care. Plaintiff didn’t submit anything in contradiction. But he did argue, in the trial court and now on appeal, that the declaration wasn’t sufficient to meet the Hospital’s affirmative burden on summary judgment. The trial court disagreed. But the Court of Appeal reverses, holding that a bare-bones conclusory expert declaration on the standard of care, that doesn’t explain its reasoning, even if admitted into evidence, isn’t sufficient to meet a moving party’s SJ burden.

Reversed.

I’m not sure this is the right approach conceptually. It seems like this should be more of question of evidence than of summary judgment procedure.

Experts state opinions. In doing so, they are supposed to substantiate them, both as a matter of credibility, and perhaps more importantly, as a threshold requirement to having them admitted into evidence. They need to show their work.

But that stuff is basically a foundational predicate to admissibility. Evidence Code § 801 sets out some preliminary facts that must be established under Evidence Code §§ 403 and 405 before an expert opinion is admissible in evidence. See generally People v. Cottone, 57 Cal.4th 269, 284 (2013). The absence of that foundation is a waiveable objection. Web Serv. Co. v. L.A. Cty., 242 Cal.App.2d 1, 8 (1966). So it seems like, if nobody objects, “it is my opinion that x satisfies the standard of care,” is prima facie evidence that X does indeed the standard of care. Because if that statement isn’t actually probative of what it says, it shouldn’t be in evidence in the first place. Evid. Code §§ 210 (relevant evidence has “a tendency in reason to prove or disprove any disputed fact . . . of consequence . . . . ”); 350 (“No evidence is admissible except relevant evidence.”).

Plaintiff here apparently made an evidentiary objection, but the court never ruled on it. On appeal, he chose to raise the burdens issue and abandon the evidence question. (Perhaps that is because the burden issue is subject to more appellant friendly standard of review.) It was apparently a correct call tactically. Because even if I don’t think it really makes conceptual sense, there’s precedent that supports the “conculsory expert declaration doesn’t move the needle on summary judgment” approach taken by Plaintiff and the court here.

Palsgrafian Vistas

Novak v. Continental Tire N. Am., No. A149494 (D1d3 Apr. 12, 2018)

Not sure how procedural this is, but it’s interesting nonetheless.