Is Code of Civil Procedure § 1281.98 Prempted by the FAA?

Hohenshelt v. Superior Court, No. B327524 (D2d8 Feb. 27, 2024)

This is another case where an employer in an arbitration was late in paying the arbitrator’s fee so the employee moved to go back to litigating her case in court under Code of Civil Procedure § 1281.98. The employer here was clearly late under the relevant standard, and a bunch of recent cases are good authority that the upshot of that is that the employee does not need to arbitrate any more.

Employer argues, after a prompting for supplemental briefing, that the FAA preempts § 1281.98. The Court rejects that argument, based on the idea that § 1281.98 is an arbitration procedure statute that furthers, not dissuades against, arbitration by incentivizing parties to pay up and participate in full. So the Court of Appeal grants a writ ordering the litigation to proceed.

Justice Wiley dissents. He notes that California state courts don’t have the greatest record predicting how the US Supreme Court will rule on the preemption of anti-arbitration state laws under the FAA. Following a federal case district court case, Belyea v. GreenSky, Inc., 637 F. Supp. 3d 745, 759 (N. D. Cal. 2022), he notes that § 1281.98 can’t really encourage arbitration when its chosen enforcement method is to effectively invalidate an agreement to arbitrate. 

Setting aside whether SCOTUS’s manic desire to force arbitration on every employee and consumer is the right take on the law, Justice Wiley is clearly onto the the trend. Would not be surprised to see a cert grant on this in the next year or two.

Writ granted.

The Inescapable Empire

EpicentRx v. Superior Court, No. D081670 (D4d1 Sept. 21, 2023).

So, back in 2019, the Court of Appeal decided that it would not enforce a forum selection clause in a contract if it would result in the case being sent to a jurisdiction that might enforce a void-in-California waiver of the right to a jury trial. This case doesn’t involve a jury waiver. But it does involve a bylaw requiring a company’s stockholders to litigate disputes over its internal affairs in the Delaware Court of Chancery. On several occasions, the Court of Appeal has found such bylaws to be valid, and on that basis sent stockholder cases packing to the First State.  

Plaintiff in this case, however, raises a new argument. The Court of Chancery is a court of equity, and as such, it doesn’t do juries. At all. So Plaintiff argues that choosing chancery is a de facto waiver of jury trial rights that would otherwise apply in California. Thus, as with Handoush and the cases it is based on, to enforce the forum selection would effectively result in a waiver of an otherwise unwaivable California right. The Court of Appeal agrees.

Notably, the Court of Appeal declines to enforce the selection for causes of action that the right to jury trial does not attach, even in California. That, according to the court, would result in unnecessary expense and piecemeal litigation.

Writ denied.

This seems kind of problematic to me. One of the reasons companies incorporate under Delaware law is to have the benefit of Delaware’s specialized courts in resolving disputes over their internal affairs. This ruling effectively denies that benefit by sheer virtue of the fact that the company is located in California. California’s courts are busy enough without making them the venue for complex disputes involving some other states’ laws. 

On the other hand, the logic of the ruling is not really much of a stretch from Handoush. But how far does a court need to go to allow a California jury right to trump an express (and completely logical) choice of venue? Do we need to make sure that a complaint doesn’t include any causes of action that California considers to be legal but some other state might view as equitable? And of course, a clever plaintiff lawyer could avoid all that by adding even a weak claim for fraud or breach of contract to any dispute over corporate governance. (Indeed, the Company’s briefs say that’s what happened here.)

Interestingly, the Supreme Court granted review in Handoush. But the appeal got dismissed due to some idiosyncratic concerns of the parties. Then, as the Court here notes, it granted review again on the same issue in an unpublished case called Gerro v. Blockfi Lending LLC, S275530. But that case has sat unbriefed for a year because the defendant went bankrupt. So—particularly given the effect this decision might have on many California-based companies incorporated under Delaware law and upon contractual arrangements that provide for Delaware law and venue—I would not be stunned to see a petition granted on this case as well.

**Update: Review granted**

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.

20 Years After Zubulake III

Victor Valley Union Sch. Dist. v. Superior Court, No. E078673 (D4d2 Mar. 24, 2023)

The underlying case is a lawsuit alleging that a School District was negligent in failing to prevent an on-campus sexual assault of the Plaintiff, a teenager with developmental disabilities, while he was in a high school bathroom. It came out in discovery that after the events, but before the onset of the litigation, a video of the outside of the door to the bathroom had been erased. Plaintiff moved for terminating sanctions. The trial court, finding that the deletion was only negligent, declined to award terminating sanctions. It did find, however, that the District should have anticipated that the video would be relevant to anticipated litigation and thus that the District had a duty to preserve it. It accordingly issued evidentiary, issue, and monetary sanctions that effectively precluded it from contesting liability. 

District took a writ.

Technically, the petition concerns the Discovery Act’s safe harbor precluding sanctions for the routine, good faith deletion of electronically stored information. See Code Civ. Proc. § 2023.030(f)(1). But that subsection goes on to say that it does not alter any obligation to preserve discoverable information. § 2023.030(f)(2). The Court of Appeal considers the interplay between (f)(1)’s safe harbor and the (f)(2)’s stated intent not to change the law. It also looks at the legislative history of the 2009 amendments to the Discovery Act to make clearer rules regarding ESI and a 2012 bill that closed some loopholes in the 2009 amendments, including the addition of (f)(1) and (f)(2) to § 2023.030. The Court concludes that the safe harbor for routine deletion of ESI can apply only when the alleged spoliator is under no duty to preserve.

Which begs the question, of course: When is a party under a duty to preserve evidence? Despite the statute’s being on the books for a decade, and the prevalent role of ESI in modern litigation, there is actually no published state law authority on that question. So—as is the general practice of state courts on discovery issues—the Court of Appeal looks to federal law, which has been more-or-less settled since around the time I was in law school. 

The duty to preserve evidence arises at the point where litigation is reasonably foreseeable. It’s an objective, but fact-specific standard. As some of the cited federal cases explain, the “mere existence of a potential claim or the distant possibility of litigation” is not enough. But litigation doesn’t need to be on-file or “imminent” either. As the Court explains—reviewing the relevant federal decisions—litigation is reasonably foreseeable when it is “probable” or “likely” or arise from a dispute or incident.

Plaintiff also argued that the District’s statutory obligation under Government Code § 53160 to preserve video for 100 days gave rise to a presumption or provided an independent per se standard for a duty to preserve. But the Court of Appeal rejects. As the Court explains, (1) it’s unclear that the statute applies to the district; (2) the federal case law around regulatory violations and spoliation is (a) largely in the context of adverse inference instructions—not at issue here—(b) generally requires intentional deletion; and (c) permits an inference only when the party seeking the inference is within the class of persons the regulatory duty is intended to protect. None of those is present here.

The Court of Appeal goes on to hold that the trial court correctly applied the reasonable foreseeability test here. Litigation is not necessarily “probable” or “likely” to arise from every incident or dispute. But a school district’s “heightened duty” to care for the welfare of its students” “weighs heavily in favor of finding litigation is reasonably foreseeable following the report of an alleged sexual assault of a student by another student.” That is bolstered by the fact that public school employees are generally “mandated reporters”—potentially subject to criminal prosecution for failing to report an alleged child sexual assault to the authorities. These circumstances “make it obvious that evidence about whether a sexual assault occurred and who was responsible should be preserved for litigation, such that a reasonable administrator would not need to parse out the precise likelihood of a particular claim in determining whether to preserve the video.”

There was also, in addition, specific evidence of the District’s awareness of the likelihood of litigation. First, an administrator who reviewed and made a report on the video prior to its destruction observed that it depicted clear violations of the school’s restroom policy, which required the bathroom to stay locked and students admitted only one at a time. Second, the school’s risk manager stated in a declaration that the District’s attorneys had instructed him to “obtain confidential statements and reports immediately after an incident and forward them to my department.” Those materials were then to be provided to the District’s insurance carrier to evaluate potential liabilities and defenses. And third, the video was, after all, preserved long enough for the administrator to review and report on it. (The Court notes, however, in a long footnote, that the fact that in the litigation, the District claimed attorney-client privilege and attorney work product protection over the administrator’s report was not really evidence that the District anticipated litigation at the time the report was made.)

The record thus supported the trial court’s issuance of sanctions.
But the Court of Appeal finds the particular sanctions issued were likely too onerous. Discovery sanctions are supposed to be remedial, not punitive. And, as noted, although the trial court declined to put the District in default, it effectively did so by preventing the District from contesting the essential elements of liability. It was in effect if not name, a terminating sanction. And given that the trial court found that the District was only negligent, the trial court should have at least considered lesser sanctions that would have restored Plaintiff to the position he would have been in had the video not been deleted.

Writ granted.

This decision is detailed and lengthy. Perhaps a little too lengthy for my personal taste. Its analysis is rather obviously correct.

But it’s been 20 years since the decisions in the Zubulake case in the S.D.N.Y. explored the framework for when a duty to preserve evidence arises. And more than a decade since the Legislature amended the Discovery Act to address ESI issues. Why, in 2023, is this a case of first impression in California?
It seems, to me, that there are three possibilities.

First, given that discovery issues are most often addressed by the Court of Appeal by writ, it’s possible that superior court judges, in the large, have been getting it right. So maybe the appropriate case never came up.

Second, as the Court recognizes in footnote 12, some federal district court opinions are, at least, “unofficially reported,” in reporters like the Federal Supplement and the Federal Rules Decisions. That creates a body of persuasive case law that helps the development and stability of the law on novel issues that tend to evade appeal, such as discovery disputes. California doesn’t have that sort of thing. Trial court rulings are not even unofficially reported. Indeed, they are generally really hard to find. Indeed, there’s case law that says they are un-citable in any event, even if there’s no rule that actually says so. San Diego Cnty. Emps. Ret. Assn. v. Cnty. of San Diego, 151 Cal. App. 4th 1163, 1184 (2007) (“A trial court judgment cannot properly be cited in support of a legal argument, absent exceptions not applicable here.”); see also Aixtron, Inc. v. Veeco Instruments Inc., 52 Cal. App. 5th 360, 399 (2020); Bolanos v. Superior Court, 169 Cal. App. 4th 744, 761 (2008); Santa Ana Hosp. Med. Ctr. v. Belshe, 56 Cal. App. 4th 819, 831 (1997); cf. R. Ct. 8.1115(a) (non-citation rule applicable only to unpublished Court of Appeal and appellate division orders).

And third, it’s possible that writs were taken on this issue (or even that it was raised in an appeal of a judgment) but either the Court of Appeal summarily denied the petitions, or the decisions went unpublished. (A footnote explains that the District cited to some unpublished cases where the issue was addressed, but the Court declines to consider them under Rule of Court 8.1115.) But if this is a first impression issue, why were the prior decisions unpublished? Cf. Cal. R. Ct. 8.1115(c)(1), (2). 

With no insult the superior court judges of our great state, I don’t really buy that the first possibility explains things. Someone has to have gotten it wrong somewhere. And if so, this shouldn’t happen in a legal system as large as California’s, which, on a body count basis is significantly larger than the entire system of federal courts. Twenty, or even ten, years of legal uncertainty about a basic procedural issue that comes up in hundreds, perhaps even thousands of cases every year imposes an enormous cost on litigants and the superior courts.

Parent Cos. Own Acts Establish Personal Jurisdiction

SK Trading Int’l Co. Ltd. v. Superior Court, A163590 (D1d4 Apr. 12, 2022)

Petitioner in this case is a Korean outfit whose California subsidiary is alleged to have engaged in a conspiracy to manipulate the price of a gasoline blendstock called CARBOB. Petitioner argues that there’s no personal jurisdiction. When the trial court disagreed, it took a writ under Code of Civil Procedure § 418.10(c).

It has long been established that having a domestic subsidiary is not, own its own, enough to give rise to personal jurisdiction over a foreign parent. The test, instead, looks to whether the parent’s own acts are significant enough, and sufficiently related to the claims that it’s fair to hale them into court here. 

In this case, the evidence showed that Petitioner/parent was not just a passive owner of a domestic sub. Parent’s execs took an active role in managing the California-based conduct that was part of the conspiracy. They had a role in hiring key, California-based personnel. They facilitated the creation and operation of a joint venture arrangement through which the conspiracy was carried out. That’s enough to meet the test.

The Court makes an interesting point in a footnote. For a long time, there was a open debate about how closely the in-state conduct needed to relate to the claims to satisfy the test. As I discussed in a post eight years ago, there were basically there takes. Some courts required the conduct to be the cause of the claim, some applied an “arising from or related to” test, and some asked whether the claims and contacts were “substantially connected.” The last test—generally viewed as the most liberal—had been adopted by the California Supreme Court. See Snowney v. Harrah’s Entmt. Inc., 35 Cal.4th 1054, 1068 (2005). But subsequent decisions of the U.S. Supreme Court—including a case that reversed the Cal Supremes—appear to have settled on the “arising from or related to” standard. See Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773, 1781 (2017) (casting doubt on the adequacy of substantial connection); Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S.Ct. 1017, 1026 (2021) (rejecting proof-of-causation requirement).

Writ denied.

Swords and Shields

People v. Superior Ct. (Jones), No. S255826 (Cal. 2021)

This Supreme Court case about work product was decided back in December, but I missed it because it’s a habeas case. The substance of the petition is an ineffective assistance claim based on counsel’s failure to adequately litigate a Batson (or, if we are speaking state court, a Wheeler) challenge related to a capital jury selection back in 1994. At the trial, when challenged for striking two Black women, the DA explained that he used a numerical rating system to evaluate jurors, which these two particular members of the venire scored poorly on. The trial court accepted the explanations and denied the challenges. The defendant was ultimately convicted and sentenced to death.

Now, 25 years later, the defendant challenges the conviction in a habeas petition. As part of that, he seeks discovery of the DA’s jury selection notes under a statute that permits post-conviction discovery under certain circumstances. The DA objected, arguing that the notes were opinion work product under Code of Civil Procedure § 2018.030(a) and thus immune from discovery. The superior court granted the discovery, writs were taken, and now, several years later, the case is before the Supreme Court.

The Court first does an extensive review showing the usefulness in reviewing jury selection notes in Batson cases. It then ducks the question of whether the notes are, in fact, opinion work product. Instead, it finds that the DA implicitly waived any work product protection when, at Batson step #2, he gave the purportedly race-neutral explanation that he or she was using an undisclosed numerical rating system and that these two jurors scored low on it. 

As the Court explains, like the attorney-client privilege, the work product protection is subject to two kinds of waiver—express and implied. Like any other privilege, work product is expressly waived under Evidence Code § 912(a) when a significant part of protected material is disclosed to another person. An implied waiver, on the other hand, occurs when the claimant puts protected material directly at issue such that disclosure is necessary to ensure a fair adjudication. This case presents the latter.

When the DA provided the explanation and the scores for the struck jurors, he put into question whether the he had, in fact, used the race-neutral numerical system as described. By doing so, the DA made “testimonial use” of the notes showing the operation of the system, such that the only way for the court or the defense to test the veracity of that explanation would be to review the notes in total

The Court also rejects the DA’s contention that there was no waiver because the explanation was coerced. No doubt, the court ordered the DA to come forward with a race-neutral explanation as part of the Batson inquiry. But there’s no coercion in the DA’s making the tactical choice to provide the explanation that was provided. The government can’t simultaneously point to its rating system as explanation while invoking privilege against disclosing it. 

Finally, the court notes that, to the extent the notes contain other opinion work product beyond the scope of the waiver, on remand, the trial court can examine them in camera and redact out any such material. 

Court of Appeal affirmed.

Facebook III

Facebook, Inc. v. Superior Court, No. A157143 (D1d5 Mar. 6, 2020)

This is on appeal again following remand from the Supreme Court’s decision in Facebook v. Superior Court. 

There, the court held that the Stored Communications Act permits a criminal defendant to subpoena fully public Facebook posts on a consent theory. But that didn’t apply to posts disclosed only to “friends,” no matter how numerous. The court remanded to the Court of Appeal for application of this rule, a determination of whether disclosure of only public posts would be sufficient, an analysis of Facebook’s burden objections, and an exploration of the adequacy of alternatives such as ordering the poster to consent or ordering the DA to serve Facebook with a warrant demanding the non-public materials. The Court of Appeal sent the case back to the trial court for more factual development. 

After Facebook abandoned its burden objections, the trial court ordered the whole shebang—public and private—produced. It decided that, in the absence of any burden claim, the defendant’s Sixth Amendment rights overrode whatever SCA and privacy interests that the poster (a witness who allegedly has some credibility issues) might have. Facebook took another writ. And the Court of Appeal again grants and reverses.

From the Court of Appeal’s perspective, the trial court (yet again) jumped the gun. It didn’t do what the Supreme Court said, because focused only on the burden on the rights of the defendant. The Court does agree that ordering the DA to serve a search warrant isn’t a viable option. But the trial court nonetheless failed to consider whether other measures short of wholesale ordering Facebook to make the production could still protect defendant’s rights. It should have considered (a) whether a production of the public posts only would be sufficient; and (b) whether obtaining the posts from the witness or a third party to that communication was a feasible option.

Writ granted.

Who decides who decides?

Hollingsworth v. Superior Court, No. B297658 (D2d4 Jul. 24, 2019)

If you get hurt at work, workers’ compensation is generally your exclusive remedy. But there are exceptions, which can take your claim out of the workers’ comp. administrative system and let you file in superior court. At some point, however, somebody needs to decide which system you should be in. California courts have generally held that both the Workers’ Compensation Appeal Board and superior courts have jurisdiction to, at minimum, decide the threshold question of whether they have jurisdiction to entertain the claim. But who decides when there are cases in both fora? The Court of Appeal here holds that whichever forum first took up jurisdiction over the issue should be the one to decide. Here, that was the superior court.

Writ granted.

What, Exactly, Are We Waiving?

Global Fin. Distribs. v. Superior Court, No. 291814 (D2d7 May 13, 2019)

The Code of Civil Procedure has two different statutes addressed to motions to dismiss or stay for forum nonconveniens—§§ 418.10 and 410.30. 

Say Hello to Indiana

Ryze Claim Solutions LLC v. Superior Court, No. A155842 (D1d3 Apr. 3, 2019)

Plaintiff’s employment agreement has a forum selection for various state and federal courts in Indiana, where Employer is located. Plaintiff nonetheless sued—for violations of FEHA—in Contra Costa County Superior. The trial court denied Employer’s motion to stay in favor of the Indiana forum, finding that FEHA’s venue provision and Labor Code § 925—which renders certain selections of non-California for a unenforceable in certain employment disputes—made the clause unenforceable.

After issuing a Palma notice, the Court here grants a writ. The FEHA venue provisions address venue, not forum. They just say where within California a plaintiff needs to bring his or her claims. As to § 925, it facially applies only to contracts entered after January 1, 2017. Plaintiff’s contract was entered in 2014, so § 925 doesn’t apply. 

Writ granted.

Haguein' It Up in Hong Kong

Whyenlee Indus., Inc., No. A155008 (D1d4 Mar. 22, 2019)

Question regarding the validity of Hague Convention service on a company in Hong Kong. Company was served by a process server without prior service on the Hong Kong Central Authority. That is generally permitted under the alternative service provisions in Hague Article 10(b) and (c), which permit parties to “effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” But countries can opt out of that my making a reservation.

Hong Kong has, in fact, made an Article 10 reservation. The U.K. originally made one on its behalf in 1970, and then China did an essentially identical one when it took over in 1997. It says:

With reference to the provisions of sub-paragraphs b and c of Article 10 of the Convention, documents for service through official channels will be accepted in the Hong Kong Special Administrative Region only by the Central Authority or other authority designated, and only from judicial, consular or diplomatic officers of other Contracting States.

At first, that seems like a full opt-out. But on closer reading, the limitation applies only to “documents for service through official channels.” So when documents are for service outside of official channels—like documents served on a private party by a process server—the reservation does not apply. So says the State Department, some materials from the Hong Kong government, and most cases interpreting both the Hong Kong reservation and the U.K reservation it was based on. 

Writ denied.

The State Has No Home Court

Gamestop v. Superior Court, No. E068701 (D4d2 Aug. 22, 2018)

The Riverside and Shasta County DAs sued a secondhand video game Store in Riverside Superior Court for violating the Unfair Competition Law. They claim that the Store’s conduct was “unlawful” under the UCL because the Store violated the Secondhand Dealers’ Law, which regulates pawn shops and other resellers of personal property to prevent them from being used to fence stolen goods. 

Store moved to change venue under Code of Civil Procedure § 394(a), which permits a foreign corporate defendant to transfer an action to a neutral county when sued by a city, county, or local agency. But according to the Court of Appeal, the problem with that argument is that the UCL permits a DA to bring a UCL action on behalf of “the People of the State of California.” Thus, even if the DA’s authority is limited to prosecuting UCL violations in his or her home county—a question that is currently pending before the California Supreme Court—the State of California is nonetheless the plaintiff, so § 394(a) doesn’t facially apply.

Writ denied.

Public Posting Is Consent Under the SCA

Facebook v. Superior Court, No. S230051 (Cal. May 24, 2018)

Back in 2017, the Court of Appeal held that the Stored Communications Act prevented a criminal defendant from subpoenaing Facebook and Instagram for copies of the social media posts of a murder victim and witnesses in the case. The Supreme Court granted review, but then independently raised an issue that wasn’t really addressed by the Court of Appeal: The SCA contains an exception, 18 U.S.C. § 2702(b)(3), which permits an electronic communications provider to disclose materials for which the user has consented to disclosure. 

According to the Court here—in a unanimous opinion by the Chief Justice—that should include social media posts that a user has made available to the public, without restrictions. It does not, however, extend to posting whose access is limited only to “friends” or with other restrictions, regardless of how many people are permitted to see it. So the Court reverses the Court of Appeal and remands to the trial court to address a host of issues regarding the scope of consent and the providers’ ability to comply.

Court of Appeal reversed, in part.

UCL Penalties Case Goes to a Jury

Nationwide Biweekly Admin., Inc. v. Superior Court, No. A150264 (D1d1 Jun 12, 2018)

Before yesterday, had I been asked whether there’s a right to jury trial in an case brought by a public prosecutor seeking statutory penalties under the Unfair Competition Law, off of the top of my head, I would have guessed no. I vaguely recall having read some cases that say that. Plus the UCL is, so far as California state law goes, a beast of equity. That’s probably what the Court of Appeal first thought too, when it summarily denied a writ Defendant in this case took from the superior court’s striking their jury trail demand. But the Supreme Court granted review and transferred the case back to the Court of Appeal, ordering an assessment of the merits.

And when they got into the merit of it, it turns out everyone’s assumptions were wrong. In a solid, thoughtful analysis, the Court holds that an enforcement action for penalties under the UCL is more closely equivalent to an action at law in the common law of England in 1850 than something at equity. (That’s the test for when there’s a jury trial right under the state constitution.) The Court primarily relies on a U.S. Supreme Court case, Tull v. United States, 481 U.S. 412 (1987) and an older decision of the California Supreme Court, People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283 (1951) to hold that the gist of an enforcement action seeking statutory penalties is to punish, which is a legal, not equitable, practice. The Court holds however, that the jury right applies only to liability. Much like a criminal sentence, a calculation of civil penalties is classically within the discretionary power of the court.

As I recollected, there are a handful of Court of Appeal cases that seemingly go the other way. But the Court plows through them, showing that: (1) they deny a right to jury trial under the Sixth Amendment (although a civil penalties case is punitive, it is not criminal); or (2) they contain cursory or no analysis, or blindly cite to the Sixth Amendment cases, to deny the right without doing any requisite Seventh Amendment (or in California, Article I, § 16) analysis that looks to remedies and equivalents at common law. Finding no other case that has actually done the work, the Court finds these cases unconvincing.

Tthe People also suggest that they could sever off the penalties issue and have their demand for injunctive relief tried first to the court. Because that would necessarily entail a liability ruling, doing so would effectively foreclose Defendant’s jury trial right on liability in any later trial on penalties. But the Court of Appeal rejects that argument. It is true that in California procedure (unlike federal procedure) a court can try a equitable cause of action first, with the court’s fact finding in that trial being preclusive on a later jury trial. Although there’s good authority to do that on a cause-of-action-by-cause-of-action basis, nothing supports to ability to so finely parse the legal and equitable remedies that flow from a single claim.

Writ granted.

Games the Man Can't Play

Birts v. Superior Court, No. A152923 (D1d3 Apr. 11, 2018)

A criminal case, but involving civil procedure.

Getting Dirty in the Collections Game

Duke v. Superior Court, No. F073712 (D5 Dec. 13, 2017)

A CEO and two Investors were guarantors on their Company’s lease. After the Company breached the lease, the Company, the CEO, and the Investors were all held jointly and severally liable on a $385k judgment to the Landlord. 

No Presumptions of Convenience for Foreign Plaintiffs

Fox Factory, Inc. v. Superior Court, No. H043648 (D6 Apr. 27, 2017)

Plaintiff is a Canadian who was hurt in a mountain biking accident in British Columbia. He filed two lawsuits over his accident. In one, filed in Santa Clara County, he sued a bunch of U.S. manufacturers if the components of his bike, including Fox, a California company that made the forks. The other case was filed in Canada and brought against a Canadian bike shop and a bunch of John Does, who appear to be the companies sued in the California action. 

State Fund Strikes Again

McDermott Will & Emery LLP v. Superior Court, No. G053623 (Apr. 18, 2017)

The underlying litigation in this writ is a malpractice case arising from messy probate fight over the control of a family office. It involves way too many names and a whole lot of factual detail, but I’ll try to simplify as best as I can, without losing the key flavor as relevant to the procedural issues, which deal with the disqualification of one party’s lawyers for failing to return privileged materials.

Writ Relief Has Come a Long Way in 80 Years

Shaw v. Superior Court, No. S221530 (Cal. Apr. 10, 2017)

Most of this Supreme Court opinion is about whether there is a statutory right to jury trial for a claim brought under Health & Safety Code § 1278.5(g), which prohibits certain kinds of retaliatory terminations. That’s too substantive for me.

There’s a gating issue, however, that is pure procedure: Is the denial of a jury trial right an appropriate subject for pre-trial writ relief? The answer is pretty clearly yes, and a series of Court of Appeal decisions bears that out. But there’s a very old Supreme Court case—Nessbit v. Superior Court, 214 Cal. 1 (1934)—that says it isn’t. Nessbit, however, relied on an old theory of mandamus as available only when a trial court acted for want of fundamental jurisdiction. Later cases changed that theory, re-characterizing the “jurisdictional” nature of the remedy to reach any act that was contrary to established statutes or standards, even if the trial court did, in fact, have jurisdiction over the matter in general. So the Supreme Court here overrules Nessbit to clarify that an erroneous denial of a jury trial right is an issue that can be addressed by a pre-trial writ of mandate.

A Little Meta, But the Code Still Applies

City of L.A. v. Superior Court, No. B269525 (D2d7 Mar. 20, 2017)

Discovery in a public records act case is kind of confusing. After all, the whole purpose of the case is basically discovery. In this writ, the issue is whether, and to what extent, the Civil Discovery Act applies in cases brought under the Public Records Act.