Navarrete v. Meyer, No. D067454 (D4d1, as modified Jul. 22, 2015)
When you try and lose a case based on a core theory that applies the facts to the law, an appellate court generally won’t let you change that theory in seeking reversal. This is known as the “theory of trial principle.” But the principle isn’t super-rigid. So if your appeal is generally consistent with your trial theory but invokes more detailed, while consistent, legal analysis, the theory doesn’t preclude a reversal. After all, sometimes things are just a little more thoughtful given the pace and focus of an appeal. The appellate lawyers in this case invoked a statute that hadn’t been addressed in the trial court briefing. But their theory was more or less consistent, so the theory of trial principle wasn’t offended, and they could make their argument on appeal.
That being the case, and the argument being permitted, the trial court erred in granting summary judgment.
Reversed.
Tuesday, July 21, 2015
Monday, July 20, 2015
A Good Reason to Address Class Cert Early
Falk v. Children’s Hospital L.A., No. B251182 (D2d3 Jun 24, 2015)
This case is about so-called American Pipe tolling. See Am. Pipe & Const. Co., v. v. Utah, 414 U.S. 538 (1974). It was developed under federal law, but generally applies in California as well. The gist of the doctrine is that a plaintiff who is within the class definition in a pending class action can rely on that action in deferring to bring her own suit. The statute of limitations on her claims gets tolled during that period. The whole point is to deter every potential class member from feeling like they need to jump in to preserve their rights, which would defeat the whole point of the class action procedure.
This case is about so-called American Pipe tolling. See Am. Pipe & Const. Co., v. v. Utah, 414 U.S. 538 (1974). It was developed under federal law, but generally applies in California as well. The gist of the doctrine is that a plaintiff who is within the class definition in a pending class action can rely on that action in deferring to bring her own suit. The statute of limitations on her claims gets tolled during that period. The whole point is to deter every potential class member from feeling like they need to jump in to preserve their rights, which would defeat the whole point of the class action procedure.
No Piggybacking on a Co-Defendant's 998
Litt v. Eisenhower Med. Ctr., No. D067455 (D4d1 Jun. 19, 2015)
Plaintiff got hurt in a hospital cafeteria. Defendant 1, the hospital, served a Code of Civil Procedure § 998 offer of judgment on Plaintiff for $15,000, which plaintiff rejected. Plaintiff subsequently amended his complaint to add Defendant 2, the cafeteria operator. Under the cafeteria contract, Defendants 2 agreed to indemnify Defendant 1 in cases like this one. At trial, plaintiff won a $3,000 verdict, joint and several against both defendants.
Trial court holds that, for the purposes fee shifting under § 998, Defendant 1—which served the offer—is a prevailing party. But Defendant 2—which didn’t serve an offer—is not. So only Defendant 1 gets to recover its post-offer costs. But it taxeed Defendant 1’s expert witness fees because under the cafeteria contract, those fees were indemnified by Defendant 2.
On appeal, the first point is easy. A defendant that doesn’t serve a § 998 offer and loses a net recovery at trial is not a prevailing party, in any sense of that term. But the trial court erred in taxing Defendant 1’s expert witness fees. The costs statute permits the award of costs incurred, even if not paid, and § 998 shifts incurred costs. A bunch of cases in the insurance context bear out that a plaintiff can recover expert witness fees, even if the bill was paid by someone else. So Defendant 1 should have recovered its expert witness fees, even if, at the end of the day, it wasn’t on the hook to pay them. The fact that the obliged indemnitor was also a defendant in the case and not, ultimately, a prevailing party on its own, didn’t make a difference.
Reversed in part.
Plaintiff got hurt in a hospital cafeteria. Defendant 1, the hospital, served a Code of Civil Procedure § 998 offer of judgment on Plaintiff for $15,000, which plaintiff rejected. Plaintiff subsequently amended his complaint to add Defendant 2, the cafeteria operator. Under the cafeteria contract, Defendants 2 agreed to indemnify Defendant 1 in cases like this one. At trial, plaintiff won a $3,000 verdict, joint and several against both defendants.
Trial court holds that, for the purposes fee shifting under § 998, Defendant 1—which served the offer—is a prevailing party. But Defendant 2—which didn’t serve an offer—is not. So only Defendant 1 gets to recover its post-offer costs. But it taxeed Defendant 1’s expert witness fees because under the cafeteria contract, those fees were indemnified by Defendant 2.
On appeal, the first point is easy. A defendant that doesn’t serve a § 998 offer and loses a net recovery at trial is not a prevailing party, in any sense of that term. But the trial court erred in taxing Defendant 1’s expert witness fees. The costs statute permits the award of costs incurred, even if not paid, and § 998 shifts incurred costs. A bunch of cases in the insurance context bear out that a plaintiff can recover expert witness fees, even if the bill was paid by someone else. So Defendant 1 should have recovered its expert witness fees, even if, at the end of the day, it wasn’t on the hook to pay them. The fact that the obliged indemnitor was also a defendant in the case and not, ultimately, a prevailing party on its own, didn’t make a difference.
Reversed in part.
Thursday, July 2, 2015
It's Like There Was a Contest to Pick the Most Awkward Neologism
West v. Arent Fox LLP, No. B255973 (D2d5, as modified Jun. 26, 2015)
A SLAPPback—yes, this ugly-looking half-capped term actually shows up in a statute—is an action for malicious prosecution brought against someone who previously prosecuted an action that was dismissed as a SLAPP under Code of Civil Procedure § 425.16. Because the Legislature decided it furthered the purpose of the anti-SLAPP protections to permit these kinds of suits, even though they themselves would invariably draw an anti-SLAPP motion, it passed § 425.18 to make it harder, but not impossible, to attack a SLAPPback with an anti-SLAPP motion.
So § 425.18(c) exempts a SLAPPback from some of the more procedurally onerous parts of § 425.16, such as the discovery stay, the timing provisions, and the shifting of attorney fees. In instances where the motion is denied or only partially granted, § 425.18(g) also replaces the immediate right to appeal under §§ 425.16(i) and 904.1(a)(13) with a more limited writ review that must be sought within twenty days. That rule applied here, because the trial the court granted an anti-SLAPP motion and struck claims that everyone agreed were SLAPPbacks, but did not dispose of the whole case. Since plaintiff did not timely seek a writ, but instead filed a notice of appeal after the twenty days had run purporting to claim appellate jurisdiction under §§ 425.16(i) and 904.1(a)(13), there’s no jurisdiction to hear this case.
Appeal dismissed.
A SLAPPback—yes, this ugly-looking half-capped term actually shows up in a statute—is an action for malicious prosecution brought against someone who previously prosecuted an action that was dismissed as a SLAPP under Code of Civil Procedure § 425.16. Because the Legislature decided it furthered the purpose of the anti-SLAPP protections to permit these kinds of suits, even though they themselves would invariably draw an anti-SLAPP motion, it passed § 425.18 to make it harder, but not impossible, to attack a SLAPPback with an anti-SLAPP motion.
So § 425.18(c) exempts a SLAPPback from some of the more procedurally onerous parts of § 425.16, such as the discovery stay, the timing provisions, and the shifting of attorney fees. In instances where the motion is denied or only partially granted, § 425.18(g) also replaces the immediate right to appeal under §§ 425.16(i) and 904.1(a)(13) with a more limited writ review that must be sought within twenty days. That rule applied here, because the trial the court granted an anti-SLAPP motion and struck claims that everyone agreed were SLAPPbacks, but did not dispose of the whole case. Since plaintiff did not timely seek a writ, but instead filed a notice of appeal after the twenty days had run purporting to claim appellate jurisdiction under §§ 425.16(i) and 904.1(a)(13), there’s no jurisdiction to hear this case.
Appeal dismissed.
SJ Affirmed, but Likely No Costs
Roman v. BRE Properties, No. B246841 (D2d7 Jun. 17, 2015)
It’s probably not too surprising that in order to bring a claim for disability discrimination, Plaintiff needs to establish that he is disabled within the meaning of the statute. When, in this case, Defendant served discovery asking for evidence of Plaintiffs’ disability, Plaintiff didn’t respond. That nonresponse was sufficient to meet Defendant’s burden when moving for summary judgment. And then when Plaintiff’s opposition offered nothing but his wife’s conclusory statement that she had previously told Defendant he “was disabled,” that wasn’t enough to create a disputed fact issue. So SJ was properly granted.
But the trial court erroneously awarded costs to defendants because it didn’t apply the heightened Christiansburg standard that the Supreme Court’s recent decision in Williams held applies to cost awards in FEHA cases. So the award was reversed and remanded for the trial court to decide whether the Christiansburg standard was met, and if not, what costs could be allocated entirely to claims other than those brought under the FEHA, for which costs could be awarded under the ordinary prevailing party standard under Code of Civil Procedure § 1032.
Reversed and remanded in part.
It’s probably not too surprising that in order to bring a claim for disability discrimination, Plaintiff needs to establish that he is disabled within the meaning of the statute. When, in this case, Defendant served discovery asking for evidence of Plaintiffs’ disability, Plaintiff didn’t respond. That nonresponse was sufficient to meet Defendant’s burden when moving for summary judgment. And then when Plaintiff’s opposition offered nothing but his wife’s conclusory statement that she had previously told Defendant he “was disabled,” that wasn’t enough to create a disputed fact issue. So SJ was properly granted.
But the trial court erroneously awarded costs to defendants because it didn’t apply the heightened Christiansburg standard that the Supreme Court’s recent decision in Williams held applies to cost awards in FEHA cases. So the award was reversed and remanded for the trial court to decide whether the Christiansburg standard was met, and if not, what costs could be allocated entirely to claims other than those brought under the FEHA, for which costs could be awarded under the ordinary prevailing party standard under Code of Civil Procedure § 1032.
Reversed and remanded in part.
Wednesday, July 1, 2015
Sometimes Tricky Doesn't Pay
Womack v. Lovell, No. G049587 (D4d3 Jun. 15, 2015)
This seems substantive, but it’s really procedural.
This seems substantive, but it’s really procedural.
Tuesday, June 30, 2015
The J-Word
Katzenstein v. Chabad of Poway, No. D066340 (D4d1 Jun. 12, 2015)
The trial court in this case struck Defendant’s counterclaim in an unsigned minute order because Defendant failed to comply with some procedures particular to probate court. Defendant appealed. But there’s no appellate jurisdiction because the order striking the claims wasn’t appealable. Under Although § 581d of the Code of Civil Procedure, a signed order that dismisses an action because a motion to strike or demurrer has is granted can be appealed as a final judgment, even if it doesn’t use the j-word. But an unsigned minute order doesn’t cut it. Indeed, in this case, it appears that the trial court didn’t even intend to strike with prejudice, but just to require Defendant to resubmit the claims in accord with Probate court procedure. So an appeal was premature.
Appeal dismissed.
The trial court in this case struck Defendant’s counterclaim in an unsigned minute order because Defendant failed to comply with some procedures particular to probate court. Defendant appealed. But there’s no appellate jurisdiction because the order striking the claims wasn’t appealable. Under Although § 581d of the Code of Civil Procedure, a signed order that dismisses an action because a motion to strike or demurrer has is granted can be appealed as a final judgment, even if it doesn’t use the j-word. But an unsigned minute order doesn’t cut it. Indeed, in this case, it appears that the trial court didn’t even intend to strike with prejudice, but just to require Defendant to resubmit the claims in accord with Probate court procedure. So an appeal was premature.
Appeal dismissed.
Friday, June 19, 2015
Too Clever a Joinder
David v. Medtronic, No. B254914 (D2d8, as modified Jun. 26, 2015)
It’s my practice not to comment on cases where Kirkland & Ellis represents a party. So I’ll just note that this is an interesting opinion regarding what happens when a nominal defendant is joined for the purpose of keeping forum stuck in California state court. And say congrats to my colleagues . . . .
It’s my practice not to comment on cases where Kirkland & Ellis represents a party. So I’ll just note that this is an interesting opinion regarding what happens when a nominal defendant is joined for the purpose of keeping forum stuck in California state court. And say congrats to my colleagues . . . .
Thursday, June 18, 2015
Why Not Wait?
Khalatian v. Prime Time Shuttle Inc., No. B255945 (D2d8 Jun. 9, 2015)
In an appeal of the denial of a motion to compel arbitration in a wage-and-hour misclassification case, the court of appeal uncontroversially finds that plaintiff’s job as an airport shuttle driver involved interstate commerce and thus that the FAA preempted the anti-arbitration provisions in Labor Code § 299.
In an appeal of the denial of a motion to compel arbitration in a wage-and-hour misclassification case, the court of appeal uncontroversially finds that plaintiff’s job as an airport shuttle driver involved interstate commerce and thus that the FAA preempted the anti-arbitration provisions in Labor Code § 299.
PAGA Takes Down Another Arbitration Clause
Williams v. Superior Court, No. B261007 (D2d4 Jun. 9, 2015)
Plaintiff in this case filed a single count action over the Labor Code Private Attorney General Act, seeking damages for Labor Code violations in both an individual and representative capacity. Defendant moved to compel arbitration, arguing that plaintiff had contractually waived the right to bring PAGA claims, and that, in any event the Labor Code violations that were the factual predicates to his PAGA claims we subject to an arbitration clause in his employment agreement. The trial court held the claims were unwaivable, but agreed that the underlying violations, when applied to the plaintiff individually, could be severed out and sent to arbitration, with the rest of the case stayed until that gets resolved.
Plaintiff in this case filed a single count action over the Labor Code Private Attorney General Act, seeking damages for Labor Code violations in both an individual and representative capacity. Defendant moved to compel arbitration, arguing that plaintiff had contractually waived the right to bring PAGA claims, and that, in any event the Labor Code violations that were the factual predicates to his PAGA claims we subject to an arbitration clause in his employment agreement. The trial court held the claims were unwaivable, but agreed that the underlying violations, when applied to the plaintiff individually, could be severed out and sent to arbitration, with the rest of the case stayed until that gets resolved.
Wednesday, June 17, 2015
Fraudulent Transfer Judgment Relates Back to Lis Pendens
Mira Overseas Consulting Ltd. v. Muse Family Enters., No. B254298 (D2d2, as modified Jun. 30, 2015)
A property claim relates back to the filing of a lis pendens such that the judgment creditor has superior title to anyone who subsequently obtains an interest. And a fraudulent transfer claim that seeks, among other remedies, reconveyance of real property is a property claim for which a lis pendens can be filed. So in this case, plaintiffs’ fraudulent transfer judgment related back to their filing of a lis pendens on the affected property.
Reversed.
A property claim relates back to the filing of a lis pendens such that the judgment creditor has superior title to anyone who subsequently obtains an interest. And a fraudulent transfer claim that seeks, among other remedies, reconveyance of real property is a property claim for which a lis pendens can be filed. So in this case, plaintiffs’ fraudulent transfer judgment related back to their filing of a lis pendens on the affected property.
Reversed.
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