Too Close for Combat

Doe v. Yim, No. B299856 (D2d4 Oct. 5, 2020) 

Eight months after her divorce became final, Mother, an attorney, represents her adult Daughter in an action alleging that her Ex-Husband sexually abused Daughter during the marriage while Daughter was a minor. Ex moves to DQ Mother, both under the attorney-witness rule and because Mother was privy to various marital confidences during her 17-year marriage to Ex. The trial court granted the motion.

The advocate-witness rule, currently codified as Rule of Professional Conduct 3.7, says an attorney cannot be an advocate in a trial where she is likely to be a witness unless the issue is minor or related to her fees. There’s an informed consent of the client exception, but the commentary explains that client consent isn’t enough of the representation will potentially mislead the jury or prejudice the opposing party. This can occur when, for instance, there can be confusion over when the attorney is testifying as to personal knowledge versus making arguments as an advocate. Further, although the rule is facially limited to trial representations, it has also been expanded to cover pre-trial testimony, as well as situations where it would reveal to the jury that a trial witness was, at one point, an advocate for one of the parties, such as taking and defending depositions. 

Here, there was no doubt that Mother would be a key trial witness on any number of highly contested topics. Given that, it was reasonable for the trial court to find that permitting her to participate as an advocate would be confusing to the jury or prejudicial, notwithstanding that Daughter might have given informed written consent. It was thus appropriate to DQ Mother from representing Daughter at trial, as well as in any pre-trial evidentiary hearings or depositions in the case.

Further, disqualification can also be ordered to protect against a lawyer’s running afoul of non-lawyer confidential or fiduciary relationships. Here, there is little doubt that much of what Mother knows and could testify to was obtained through communications over which Ex could invoke the martial communications privilege. See Evidence Code § 980. As an advocate, she further could use that knowledge to a strategic advantage in the litigation. Under the circumstances, disqualifying Mother as an attorney for Daughter was an appropriate prophylactic measure to prevent the potential misuse of confidential marital information.

Affirmed.

Bond OK for PRA PI

Stevenson v. City of Sacramento, No. C08065 (D3 Oct. 6, 2020)

The City of Sacramento changed its record retention policy such that it would save email for only two years. Shortly before the policy went into place, Plaintiffs sought all documents subject to deletion under the Public Records Act. Plaintiffs brought suit and obtained preliminary injunctions preventing deletions. But the trial court ordered them to post an $80k undertaking, based on the City’s estimate of the cost of retaining the documents for a year. The amount was later reduced to $2,350 after a better cost estimate was provided. Plaintiffs appealed.

So the question is, does Code of Civil Procedure § 529, which requires the posting of an undertaking to offset the cost of an improvidently granted PI, apply to PRA cases? Various statutes permitting injunctive relief have express exceptions to the bond requirement, but the PRA isn’t one of them. Plaintiffs nonethless raise a bevy of arguments why § 529 shouldn’t apply. The Court of Appeal, however, doesn’t buy them. 

Among other things, there’s no actual conflict between the statutes. Cases interpreting similar silence have found that § 529 applies to other types of statutorily authorized injunctive relief. Section 529 doesn’t impinge on the rights of the indigent to access public records, because the bond and undertaking law already has an exception for indigency. Nor does the state Constitutional mandate to read limits on the right of public access narrowly license reading § 529’s unambiguous bond requirement out of the statute. Finally, although some amici contend otherwise, a bond requirement is not actually a prior restraint prohibited by the First Amendment—it doesn’t stop anyone from saying anything.

Affirmed.

Sandbaggers Lose in the End

Reales Investment, LLC v. Johnson, No. E072523 (D4d2 Oct. 5, 2020)

A local rule in Riverside County Superior Court requires a bunch of pretrial disclosures of witnesses and evidence, at the expense of the exclusion of anything that is not disclosed. Plaintiff’s original attorney was relieved before making any of the required disclosures. And its new attorney—who appeared for the first time on the first day of trial—didn’t make them either. After the court denied the new attorney’s oral motion for continuance, it ultimately found that Plaintiff’s evidence would be excluded under the local rule, and on that basis granted a nonsuit for Defendant.

First, there was no error in denying the continuance. Plaintiff’s first attorney was relieved more than three months before trial. It had adequate time to find new counsel, and if more time was required to get them up to speed, such counsel could have filed a proper written motion for a trial continuance. By waiting till the first day of trial to make the substitution and only then seeking an oral continuance, Plaintiff failed to establish good cause. 

So far as failure to comply with the local rule goes, the noncompliance was basically undisputed. Nor did Plaintiff’s late hiring of counsel excuse the failure to make the required disclosures. Moreover, the record also revealed substantial discovery misconduct on Plaintiff’s part, such as giving nonsensical responses and failure to produce any documents or to make any percipient, PMK, or expert witnesses available for depositions. Thus, along with the local rule violation, evidentiary preclusion sanctions would have also been in order.

Affirmed.

For what it’s worth, the discussion of discovery sanctions here is interesting. Relying on the text of certain provisions in the Discovery Act, a bunch of cases say that non-monetary sanctions like issue or evidence preclusion are authorized only if the guilty party violates a court order. See, e.g., New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th 1403, 1427 (2008). Of course, if an opposing party rolls into trial and starts putting into evidence undisclosed documents or testimony, the prejudiced party might never have gleaned that it needed to file a motion to compel, so there will be no order to violate. Under the federal rules—which include a self-executing duty to supplement responses absent from the Discovery Act—a failure to disclose evidence can lead to automatic preclusion under FRCP 37(e)(1). Which makes a lot of sense, since there’s no surefire way to catch this kind of sandbagging before trial. To the extent this case suggests a similar rule, at least in the pre-trial non-disclosure context, it’s a useful citation to keep in the quiver.

Magic Words Sometimes Make a Difference

Simgel Co. v. Jaguar Land Rover N. Am., No. B292458 (D2d8 Oct. 1, 2020)

This is a pretty ridiculous lemon law case about some very minor electrical problems regarding the power windows in a Jaguar. (Tom Magliozzi, for one, would be rolling in his grave to hear about electrical issues in a British import…) In answering the verdict form, the jury checked the box on the verdict form indicating that the car had no material defect. But, because the parties failed to indicate that a “no” answer meant the jury should stop, the jury went on to find that the Plaintiff had timely revoked acceptance and that there were $26k in rescission damages.

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.

Relatedness Is Not Liability

Bader v. Avon Prods., Inc., No. A157401 (D1d4 Sept. 29, 2020)

Plaintiff in this case is a lifelong Californian who claims she got mesothelioma from a lifetime of using Avon products containing talc that was allegedly contaminated by asbestos. Avon objected to personal jurisdiction, claiming that Plaintiff had not satisfied the “relatedness” prong of the specific jurisdiction inquiry, which asks whether the plaintiff’s claims are substantially connected to the defendant’s in-state contacts. The trial court found that relatedness had not been established and dismissed for lack of personal jurisdiction.

Avon’s relatedness argument here is, charitably, a stretch. Plaintiff says Avon sold her talc products in California and that the talc gave her cancer. That seems like it should be enough relatedness for specific jurisdiction. (Generally, in products liability cases, relatedness arguments come up when plaintiffs engage in forum shopping by suing where they have only tenuous connection, such that their injuries have little to do with the defendant’s in-forum sales. Like when someone from Iowa sues in California based on a product that was purchased in Iowa.) 

Avon, however, says that the Supreme Court’s rejection of California’s “sliding scale” relatedness test in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1776 (2017) also requires Plaintiff to show that the talc that Avon sold her in California actually contained asbestos in order to establish personal jurisdiction. The Court of Appeal rejects the argument, more kindly than I would. Because it’s basically nonsense. 

Sliding scale relatedness was a short lived effort to concoct a junior varsity version of general jurisdiction after the Supreme Court limited general jurisdiction to states where the defendant is “essentially at home.” See Daimler AG v. Bauman, 134 S. Ct. 746 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011). Skirting that rule, a 4-3 majority of the California Supreme Court held that when a defendant has lots and lots of connections in the forum state—sort of akin to the “systematic and continuous” test that applied for general jurisdiction pre-Goodyear and Daimler, see Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)—the nexus between the defendant’s contacts and the plaintiff’s claims could be pretty tenuous. But the U.S. Supreme Court granted cert from that decision, ultimately finding that the sliding scale test was inconsistent with due process. Bristol-Myers, 137 S. Ct. at 1781–82. Specific jurisdiction thus requires some substantial relationship between the contacts and the claim irrespective of what other non-claim related contacts the defendant might have in the forum, regardless of how significant those contacts are.

So far, all good. 

But what neither Bristol Meyers nor any other court has ever said is that, to show relatedness, the plaintiff has to affirmatively prove, as jurisdictional matter, that the defendant’s in-forum sales actually caused her injury. That would make the test for personal jurisdiction—a question usually resolved at the outset of the case—impossibly high and unduly complicated. So high and complicated that a plaintiff couldn’t hale a defendant into a court in her home state for selling her an allegedly defective product in her home state unless she arrives at the courthouse on day one loaded for bear with expert testimony on causation. That doesn’t make any sense.

Reversed.

Some Deep Procedure

Paul Blanco’s Good Car Co. Auto Grp. v. Superior Court, No. A159623 (D1d5 Oct. 20, 2020)

This is a writ taken from civil enforcement action brought by the AG against some corporations for false advertising. There’s two clusters of issues, one that deals with trial court procedure, the other which deals with appellate procedure. Both are kind of interesting, if you are into that sort of thing....

The AG filed an unverified FAL complaint against Defendants. Under Code of Civil Procedure § 446(a), Defendants were nonetheless required to answer in a verified pleading. Defendants, however, filed an unverified general denial, citing an exception in § 446(a) for when “an admission of the truth of the complaint might subject the party to a criminal prosecution.” Because defendants were corporations without any Fifth Amendment right to remain silent, the trial court struck the answer. Defendants took a writ.

The Court of Appeal issued an order to show cause on the writ. A few weeks later, the trial court issued an order noting that the case had been reassigned to a new judge. It further set a hearing for the AG to explain why the court shouldn’t vacate the first judge’s order, given the OSC. The new judge subsequently vacated the first judge’s order and un-struck the answer.

So the gating appellate issue is, was the second judge’s order—issued after the OSC—valid? This brings to bear one of the more obscure aspects of writ practice in California—the difference between an OSC and an alternative writ. An alternative writ gives the trial court a choice between showing cause (which is actually shown by the real party) and changing its order. But an OSC “does not invite the trial court to change the ruling under review.”

Although a writ petition followed by an OSC does not deprive a trial court of jurisdiction to change its mind on interlocutory decisions, the Court here explains that it is a bad idea for a trial court to do so while an OSC is pending. The point of an OSC often is for the Court of Appeal to take briefing and reach a decision on an unresolved point of law. If the trial court’s reverses course while an OSC is pending, that raises mootness issues. And indeed, if the Court of Appeal’s first priority is to merely compel the trial court to change its mind, it has the alternative writ in its quiver to do so.

The court next addresses whether the new judge had the authority to reverse the first judge’s order. (Didn’t this just come up?) A trial court may, of course, revisit interim orders. But the authority to do so generally rests with the judge that made the order in the first instance. So appellate courts have developed the rule that a reassigned trial judge can’t revisit a prior judge’s order unless the first judge is no longer available. That’s not the case when a matter is merely reassigned. (The first judge here is still on the court—he didn’t die or retire.) So, the Court of Appeal finds that the second judge lacked authority to revisit the first judge’s order.

And since the revisited order was invalid, the Court of Appeal can reach the merits of the trial court procedure issue raised by the writ. (Which it seems like it really wants to do, FWIW). 

So far as § 446 goes, the question is whether the exception in § 446 for admissions that might lead to criminal liability applies to a corporate entity that does not have a right to remain silent. Although the AG draws the equation, the statute does not itself actually reference the Fifth Amendment or any of its state law equivalents. Nor is there any doubt that a corporation can be subject to criminal liability. So Court of Appeal goes with the plain language of § 446, which permits a corporate defendant to decline to verify its answer when doing so might subject it to criminal liability. That is backed up by the case law and legislative history.

Finally, there’s the issue of whether the defendant could file a general denial. Section 431.30 says you can’t make a general denial to a verified complaint. But the complaint here was not verified, even if a verified answer is required unless the exception in § 446 applies. As the court explains, § 446 gave the AG the option of verifying the complaint. But it did not elect to do so. And given that option, it does not make sense to treat any AG complaint automatically like it has been verified, such that a general denial cannot be made to an unverified AG complaint.

Writ granted.

The Man Doesn't Arbitrate, for One or For Many

Provost v. Yourmechanic, Inc., No. D076569 (D4d1 Oct. 15, 2020)

Defendant here tried to compel arbitration over the issue whether plaintiff was an “aggrieved employee” with standing to bring a PAGA representative action. Its theory is that plaintiff has both an individual PAGA claim and a representative one, and the former can be arbitrated. The problem with that theory is that it is wrong. All PAGA claims, representative or not, are brought on behalf of the state. And the state has not agreed to arbitrate. End of story.

Affirmed.

A Harmless Reversal Affirmed

Prickett v. Bonnier Corp., No. G058575 (D4d3 Oct. 11, 2020)

In an admiralty case arising out of a filmshoot at sea—apparently these are a thing—plaintiff beat back a demurrer on her theory of liability. But then the judge retired. After a debatable change in case law, defendant filed a motion for judgment on the pleadings. The new judge granted it. 

Plaintiff argues that the new judge shouldn’t have revisited the old judge’s ruling. And there is indeed some precedent that following a reassignment, the new judge should not revisit the first judge’s orders. But what happens on appeal if the second judge was right? 

The Court of Appeal notes some “tension between the constitutional mandate to reverse only for miscarriage of justice and the need to conserve judicial resources by discouraging both judge shopping and repeatedly making the same motion.” But the former wins out here. As the second judge’s ruling was correct, there’s no prejudice, and thus no reversible error. 

Affirmed.

What Do You Expect from a Guy Who Sues Little League?

Hanna v. Little League Baseball, Inc., No. E070995 (D5 Aug. 18, 2020)

The Court of Appeal holds that the trial court did not err in declaring Plaintiff—a baseball coach in a beef with the national little league association—to be a vexatious litigant under Code of Civil Procedure § 391. The record reflected that as a pro se litigant, plaintiff had commenced, prosecuted, or maintained at least five civil actions in the preceding seven years that had been finally determined adversely to him. Thus, the trial court correctly stayed the case until Plaintiff posted a cost bond and dismissed it when he failed to do so.

The trial court should not, however, have ruled on the Defendant’s discovery motions after it filed its vexatious litigant motion. Section 391.6 specific provides that any litigation is stayed until ten days after the motion is denied or, if granted, ten days after the litigant posts a bond. It was thus an abuse of discretion for the trial court to rule on the discovery motion and issue $1,200 in sanctions against Plaintiff. 

Reversed in part.

Contract Interpretation, in Law and in Fact

Oakland-Alameda Colosseum Auth. v. Golden State Wariors, No. A157688 (D1d5 Aug. 18, 2020)

The parties’ arbitration agreement in this case says the arbitrator exceeds her authority by making errors of law. That effectively means that legal questions in the arbitration are subject to de novo review. But fact questions are essentially unreviewable. 

The main issue in the arbitration was whether a party “terminates” a contact by declining to exercise an option to renew. Following the two step parol evidence rubric in Pacific Gas & E. Co. v. G.W. Thomas Drayage Co., 69 Cal. 2d 33, 37–40 (1968), the arbitrator first provisionally considered some extrinsic evidence to decide whether the agreement was susceptible to more than one reading. After doing so, the arbitrator determined that the word “terminates” was, in fact, susceptible to both parties’ construction. That is a question of law, and the Court of Appeal holds it was a correct one.

In the second step of the PG&E analysis, the court decides which party has the better reading, in light of both the text and the extrinsic evidence. If the extrinsic evidence is not in conflict, this second step is a question of law. That’s the case even if there are competing inferences that can be drawn. On the other hand, if the evidence is in dispute, such as when credibility is at issue, the second step is a question of fact. This case presented the latter. It follows that, because the arbitrator in this case was required to resolve fact disputes, the arbitrator’s ruling in this case is unreviewable.

Affirmed.