Hart v. Clear Recon Corp., No. B283221 (D2d8 Sept. 18, 2018)
A provision in a mortgage deed of trust lets the Lender take certain actions to protect its security interest in the property. They include, among other things, going to court. The provision then says that the cost of those actions can be added to the loan as principal and are subject to interest at the rate in the note.
Showing posts with label unpublished opinions. Show all posts
Showing posts with label unpublished opinions. Show all posts
Monday, October 29, 2018
Tuesday, October 3, 2017
Some Tips for Citing Unpublished Federal Authority
Direct Capital Corp. v. Brooks, No. C081349 (D3 Sept. 22, 2017)
In an order modifying an opinion in a family law case, the court adds two points about citing to unpublished federal court opinions. The first is an uncontroversial statement that Rule of Court rule 8.1115, which says unpublished California appellate cases are unciteable, doesn’t apply to unpublished federal cases. The second, which appears to be more in the way of advice than a rule, is that when a party does do, they should cite to a Westlaw or Lexis number, and if the case isn’t available there, present the case in a request for judicial notice. Good to know.
In an order modifying an opinion in a family law case, the court adds two points about citing to unpublished federal court opinions. The first is an uncontroversial statement that Rule of Court rule 8.1115, which says unpublished California appellate cases are unciteable, doesn’t apply to unpublished federal cases. The second, which appears to be more in the way of advice than a rule, is that when a party does do, they should cite to a Westlaw or Lexis number, and if the case isn’t available there, present the case in a request for judicial notice. Good to know.
Wednesday, December 17, 2014
Back to the Memory Hole
J.B.B. Inv. Partners, Ltd. v. Fair, No. A140232 (D1d2 Dec. 5, 2014)
This was an interesting and novel opinion that addressed whether a party’s alleged email assent to a settlement agreement complied with California’s Uniform Electronic Transactions Act, Civil Code §1633.1, et seq. Suffice it to say, the body of law interpreting that Act is rather thin. The statute is barely mentioned in passing a couple of published cases. Indeed, the only published decision of substance addresses a not-generally-applicable issue regarding whether an electronic signature can be used on an ballot initiative petition. Notably, the statute is not all that clear on the key question at issue in this case: when and how can people bind themselves to a contract by email. The issue would seem to come up all the time, but it is unaddressed by any citable California case.
It was thus puzzling, to say the least, that a few hours after this erstwhile published decision was posted, the court issued a modified opinion claiming that it “does not meet the standard for publication as set forth in rule 8.1105(c) of the California Rules of Court” and thus that it should be withdrawn from publication. Apparently, Rule 8.1105(c)(4), which requires publication when an opinion “[a]dvances a new interpretation, clarification, criticism, or construction of a provision of a . . . statute,” doesn’t mean what it says.
There’s clearly a back story here. But on the face of it, it seems fishy.
This was an interesting and novel opinion that addressed whether a party’s alleged email assent to a settlement agreement complied with California’s Uniform Electronic Transactions Act, Civil Code §1633.1, et seq. Suffice it to say, the body of law interpreting that Act is rather thin. The statute is barely mentioned in passing a couple of published cases. Indeed, the only published decision of substance addresses a not-generally-applicable issue regarding whether an electronic signature can be used on an ballot initiative petition. Notably, the statute is not all that clear on the key question at issue in this case: when and how can people bind themselves to a contract by email. The issue would seem to come up all the time, but it is unaddressed by any citable California case.
It was thus puzzling, to say the least, that a few hours after this erstwhile published decision was posted, the court issued a modified opinion claiming that it “does not meet the standard for publication as set forth in rule 8.1105(c) of the California Rules of Court” and thus that it should be withdrawn from publication. Apparently, Rule 8.1105(c)(4), which requires publication when an opinion “[a]dvances a new interpretation, clarification, criticism, or construction of a provision of a . . . statute,” doesn’t mean what it says.
There’s clearly a back story here. But on the face of it, it seems fishy.
Tuesday, May 13, 2014
Down the Ol’ Memory Hole
So published court of appeal opinions are permanently available because they are, well, published. And unpublished opinions have a Westlaw database where they can be looked up, even if they can’t be cited. But how do you find the unpublished parts of partially published opinions? I can’t seem to find them on Westlaw, and after the slip opinions disappear from the first page of the listing on the courts’ website—which, e.g., for the Second District goes back about two years—they appear lost from the public record unless someone wants to send a runner to pull them from the file.
Am I missing something?
Am I missing something?
Friday, March 21, 2014
Doin' the Right Thing ...
Nocetti v. Whorton, No. C071317 (D3 Mar. 18, 2014)
Plaintiffs failed to show up at trial because their attorney, dying of cancer, apparently miscalendared the trial date. Defendant moved for judgment, and after “reviewing the entire file,” (whatever that means) the trial court entered a defense judgment on the merits. Plaintiffs moved to vacate the judgment under Code of Civil Procedure § 473(b), which affords relief—sometimes mandatory, sometimes at the discretion of the court—from orders that entered due to the mistake, inadvertence, or neglect of a party or its attorney. At a hearing plaintiff’s lawyer was too sick to attend, the trial court denied the motion. The lawyer died soon thereafter, plaintiffs got new counsel, and they appealed.
In the published part of the opinion, the court holds that plaintiffs weren’t entitled to mandatory relief under § 473(b) because it applies only to “defaults” and “dismissals.” To avoid rendering the discretionary relief as surplusage, established case law reads the mandatory relief narrowly to apply only to default judgments due to failure to respond to a complaint and the plaintiff-side equivalent—dismissals entered after a plaintiff fails to respond to a demurrer or other dismissal-type motion. Because entry of a defense judgment based on a nonappearance after “reviewing the entire file,” is not a dismissal, so defined, plaintiffs don’t get mandatory relief.
But the court goes on, in an unpublished part of the opinion,* to show plaintiffs a little mercy. It reverses and remands to the trial court to reconsider providing relief under the discretionary provisions of § 473(b), which are not limited to defaults and dismissals, but require any neglect to be excusable. Which having an attorney who appears to have made a mistake while dying of cancer would seem to be.
Reversed.
*I’m on the record as not being a fan of the partial publication rule, which often seems like an excuse to avoid making reasoned decisions about hard or fact-intense issues that bind future cases, when appellate judges think it isn’t worth making precedent. Like decisions about evidence, discovery, and other seemingly mundane procedural issues, for instance.
But I’ll admit that the rule does occasionally provide a safety valve when what we’ll broadly call “the equities” are offended. In this case, at the § 473(b) motion hearing that plaintiffs’ attorney didn’t attend because he was too busy dying, one of the effectively pro se plaintiffs apparently agreed with the defendant that the court should just “get the matter over with” and he would sue the attorney for malpractice. Some might see that as invited error or waiver. And defendant here made the argument, which the court rejects in a footnote because “[t]his was a voice, though, of frustration, of venting; not a voice knowledgeably inviting error.” Query if that’s a really a call—inferring frustrated sarcasm from a cold transcript—that an appellate court is in a position to make. But it’s the right thing to do. And in the end, I suppose it’s forgivable that this part of the opinion isn’t published, implicit categorical imperative at the heart of the common law appellate process be damned.
Plaintiffs failed to show up at trial because their attorney, dying of cancer, apparently miscalendared the trial date. Defendant moved for judgment, and after “reviewing the entire file,” (whatever that means) the trial court entered a defense judgment on the merits. Plaintiffs moved to vacate the judgment under Code of Civil Procedure § 473(b), which affords relief—sometimes mandatory, sometimes at the discretion of the court—from orders that entered due to the mistake, inadvertence, or neglect of a party or its attorney. At a hearing plaintiff’s lawyer was too sick to attend, the trial court denied the motion. The lawyer died soon thereafter, plaintiffs got new counsel, and they appealed.
In the published part of the opinion, the court holds that plaintiffs weren’t entitled to mandatory relief under § 473(b) because it applies only to “defaults” and “dismissals.” To avoid rendering the discretionary relief as surplusage, established case law reads the mandatory relief narrowly to apply only to default judgments due to failure to respond to a complaint and the plaintiff-side equivalent—dismissals entered after a plaintiff fails to respond to a demurrer or other dismissal-type motion. Because entry of a defense judgment based on a nonappearance after “reviewing the entire file,” is not a dismissal, so defined, plaintiffs don’t get mandatory relief.
But the court goes on, in an unpublished part of the opinion,* to show plaintiffs a little mercy. It reverses and remands to the trial court to reconsider providing relief under the discretionary provisions of § 473(b), which are not limited to defaults and dismissals, but require any neglect to be excusable. Which having an attorney who appears to have made a mistake while dying of cancer would seem to be.
Reversed.
*I’m on the record as not being a fan of the partial publication rule, which often seems like an excuse to avoid making reasoned decisions about hard or fact-intense issues that bind future cases, when appellate judges think it isn’t worth making precedent. Like decisions about evidence, discovery, and other seemingly mundane procedural issues, for instance.
But I’ll admit that the rule does occasionally provide a safety valve when what we’ll broadly call “the equities” are offended. In this case, at the § 473(b) motion hearing that plaintiffs’ attorney didn’t attend because he was too busy dying, one of the effectively pro se plaintiffs apparently agreed with the defendant that the court should just “get the matter over with” and he would sue the attorney for malpractice. Some might see that as invited error or waiver. And defendant here made the argument, which the court rejects in a footnote because “[t]his was a voice, though, of frustration, of venting; not a voice knowledgeably inviting error.” Query if that’s a really a call—inferring frustrated sarcasm from a cold transcript—that an appellate court is in a position to make. But it’s the right thing to do. And in the end, I suppose it’s forgivable that this part of the opinion isn’t published, implicit categorical imperative at the heart of the common law appellate process be damned.
Thursday, March 13, 2014
Can't Publish, Might Be Useful ...
Mark Tanner Construction, Inc. v. Hub International Insurance Services, Inc., No. C071176 (D3 Mar. 10, 2014)
So on the eve of its opposition to summary judgment being due, plaintiff claims to have obtained a smoking gun document that had been heretofore suppressed due to an alleged (but never litigated) discovery violation by the defendant. Based on that it sought leave to amend its complaint and continue the summary judgment hearing under Code of Civil Procedure § 437c(h). The trial court denied both requests and ultimately granted summary judgment for defendant. In the course of affirming, the Third District makes a number of strong statements to the effect that an alleged discovery violation by the moving party does not itself warrant leave to amend or a § 437c(h) continuance if it the dispute has never been properly litigated by the non-moving party. This discussion would be pretty useful for a moving defendant whenever a plaintiff files an amendment motion or § 437c(h) request in which it argues that it should get to escape summary judgment because it got stiffed in discovery, even though it never bothered to file a motion to compel to protest or remedy the stiff-age. (Happens all the time.) But alas, the court declines to publish these parts of the decision, reserving publication solely for a discussion regarding the nature of insurance brokers’ duties to their clients.
Affirmed.
On the same day, the Fifth District issued this sixty-four page decision, as modified on rehearing, which similarly declines to publish parts of an opinion dealing with various interesting procedural issues, such as inconsistent special verdicts, invited error in the context of jury instructions, proof of prejudice from instructional error, evidentiary sanctions for undisclosed documents, and the scope of reversal in a case involving the joint and several liability of appealing and non-appealing parties.
So on the eve of its opposition to summary judgment being due, plaintiff claims to have obtained a smoking gun document that had been heretofore suppressed due to an alleged (but never litigated) discovery violation by the defendant. Based on that it sought leave to amend its complaint and continue the summary judgment hearing under Code of Civil Procedure § 437c(h). The trial court denied both requests and ultimately granted summary judgment for defendant. In the course of affirming, the Third District makes a number of strong statements to the effect that an alleged discovery violation by the moving party does not itself warrant leave to amend or a § 437c(h) continuance if it the dispute has never been properly litigated by the non-moving party. This discussion would be pretty useful for a moving defendant whenever a plaintiff files an amendment motion or § 437c(h) request in which it argues that it should get to escape summary judgment because it got stiffed in discovery, even though it never bothered to file a motion to compel to protest or remedy the stiff-age. (Happens all the time.) But alas, the court declines to publish these parts of the decision, reserving publication solely for a discussion regarding the nature of insurance brokers’ duties to their clients.
Affirmed.
On the same day, the Fifth District issued this sixty-four page decision, as modified on rehearing, which similarly declines to publish parts of an opinion dealing with various interesting procedural issues, such as inconsistent special verdicts, invited error in the context of jury instructions, proof of prejudice from instructional error, evidentiary sanctions for undisclosed documents, and the scope of reversal in a case involving the joint and several liability of appealing and non-appealing parties.
Friday, December 20, 2013
Why Write Fifty Pages but Decline to Publish?
Asahi Kasei Pharma Corp. v. Actelion Ltd., No. A133927 (D1d5, as modifed Jan. 16, 2013)
This is a very long and detailed opinion that is well worth reading if you litigate business torts. It addresses, among other things: instructional sanctions for failure to timely produce discovery; what to do when an expert relies on materials that are not produced because he is no longer able to obtain them; the requirement that hearsay evidence submitted for non-hearsay must be relevant as to those specific issues; hearsay exceptions for the effect on the listener, lay opinion in issues of law; and the sufficiency of the evidence on several damages issues. Unfortunately, the discussion on all of these issues (more than 50 pages of it) is contained in sections of the opinion that the court declines to publish. The only published section affirms the trial court—in a cogent discussion that comprehensively reviews the case law—on some instructional issues regarding the elements of intentional interference with contract, the Applied Equipment rule that a defendant can’t interfere with its own contract, and the justification defense.
Affirmed.
Postscript: On a publication request by a nonparty under Rule of Court 8.1120, the court published two subsections on the sufficiency of the evidence of lost profits. The rest of the opinion, however, remains unpublished.
This is a very long and detailed opinion that is well worth reading if you litigate business torts. It addresses, among other things: instructional sanctions for failure to timely produce discovery; what to do when an expert relies on materials that are not produced because he is no longer able to obtain them; the requirement that hearsay evidence submitted for non-hearsay must be relevant as to those specific issues; hearsay exceptions for the effect on the listener, lay opinion in issues of law; and the sufficiency of the evidence on several damages issues. Unfortunately, the discussion on all of these issues (more than 50 pages of it) is contained in sections of the opinion that the court declines to publish. The only published section affirms the trial court—in a cogent discussion that comprehensively reviews the case law—on some instructional issues regarding the elements of intentional interference with contract, the Applied Equipment rule that a defendant can’t interfere with its own contract, and the justification defense.
Affirmed.
Postscript: On a publication request by a nonparty under Rule of Court 8.1120, the court published two subsections on the sufficiency of the evidence of lost profits. The rest of the opinion, however, remains unpublished.
Friday, August 9, 2013
Bad Breaks with Partially Published Opinions
Civic Partners Stockton v. Youssefi, C067304 (D3 Aug. 8, 2013)
It has long been established in federal practice that the fact that the opposing party produced a document in response to an RFP asking for it is prima facie evidence that the document is what it purports to be. See Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (attorney declaration sufficient to authenticate documents when they appear to be authentic and have been produced by opponent in discovery). While that is surely the law in California too, state practitioners have long been deprived of a case that actually says so.
It has long been established in federal practice that the fact that the opposing party produced a document in response to an RFP asking for it is prima facie evidence that the document is what it purports to be. See Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (attorney declaration sufficient to authenticate documents when they appear to be authentic and have been produced by opponent in discovery). While that is surely the law in California too, state practitioners have long been deprived of a case that actually says so.
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