The Dead Hand of the Past

Ly v. Cnty. of Fresno, No. F072351 (D5 Oct. 12, 2017)

Plaintiffs are some prison guards who claim employment discrimination. But along with their FEHA claims, they also filed a workers’ comp appeal for the emotional injuries that arose from the same alleged discriminatory acts. The workers’ comp cases—which are an ALJ proceedings—moved faster than the discrimination case in court. The ALJs found adversely to plaintiffs in each of the workers comp cases, with each case finding that the adverse actions were not motivated by discriminatory animus.

Form, Function, Pleading, Probate

Urick v. Urick, No. B278257 (D2d5 Oct. 5, 2017)

After Mother died, Sister, the trustee of Mother’s trust, petitioned for reformation of the trust to disinherit Brother. The trust docs contained a no contest clause, which Brother tried to enforce by filing a petition of his own. Sister responded with an anti-SLAPP motion, which the trial court granted.

Habitability Question Goes to the Jury in a UD Case

Guttman v. Chiazor, No. JAD17-15, (L.A. Super. App. Div. Sept. 8, 2017)

The appellate division of LA Superior construes Code of Civil Procedure § 1174.2 to provide a right to jury trial on the affirmative defense of breach of the warranty of habitability in an unlawful detainer proceeding. In subsections (a) and (b), the statute makes reference to “the court” as trying issues. But that is rendered ambiguous by (d)’s clear statement that the statute is not intended to deny the tenant a right to a jury trial. Given that the legislative history is super clear that the whole point of enacting (d) was to avoid interpretations that (a) and (b) permitted only a bench trial, the right was provided by the statute. Thus, there’s no need to get into an analysis of whether it was required constitutionally. Moreover, the error was per se-reversible structural error, requiring reversal without regard to whether it was harmless. 

Reversed.

Dispelling the “Binds the Company” PMQ Canard

RSB Vineyards, LLC v. Orsi, No. A143781 (D1d3 Sept. 29, 2017)

In this real estate warranty case, the court affirms a summary judgment in favor of a seller because it didn’t actually know about the defects in the property and thus made no warranty about them. So far as I can tell, all well and good from a real estate perspective. But I’m not here to write about that stuff.

There is, however, a little procedural nugget. Plaintiff’s person-most-qualified witness testified at her deposition that Plaintiff wasn’t aware of any information to suggest that Defendants’ were aware of the defects before the sale. Defendant claims that testimony is a “binding admission” on the fact of the Defendants’ unawareness. But, although there’s not a ton of detail in the analysis, the court here says it’s not.

Bankruptcy Stay Does Not Toll Service Time on Non-Bankrupt Defendants

Higgins v. Superior Court, No. D071353 (D4d1 Sept. 28, 2017)

P filed a complaint in May 2012. She named D1 and a bunch of Does, serving D1 soon thereafter. D1 proceeded to go Chapter 7, staying P’s case. Two-and-a-half years later, the bankruptcy case was discharged, lifting the stay. Based on stuff she claims to have learned during the BK case, P subbed in D2 for a Doe and served her in August 2016.

Some Chutzpah from a Corporate Pro Se

Davis Test Only Smog Testing v. Dep’t of Consumer Affairs, No. C079354 (D3 Sept. 28, 2017)

A corporation can’t appear pro se by having a nonlawyer employee represent it in a litigation. In this case, a corporation did just that in an administrative proceeding about smog tester licensing. It lost. So in its administrative mandamus petition to the superior court challenging the ALJ ruling, the company—now represented by counsel—argued that the ALJ ruling should be vacated on that grounds. But: (1) the no corporate pro ses rule generally doesn’t apply in administrative proceedings; and (2) a company can’t raise its own failure to be represented at an earlier proceeding as a grounds to vacate that proceeding. Indeed, on the second point, if the company wasn’t properly represented, it never appeared at all. I.e., it defaulted.

Affirmed.

Oregon's Government Tort Claim Process Applies in California State Court

Oregon State Univ. v. Superior Court, No. D071752 (D4d1 Sept. 28, 2017)

Plaintiff was injured in California through the alleged negligence of Oregon State University. He sued here, in state court. But he never filed a government code claim with OSU within the time allotted under Oregon state law. Question is, does that doom his suit, as it would were the defendant a California state government entity?

The court here holds that it does, as a matter of full faith and credit. California courts have a constitutional obligation to respect the sovereignty of other states and to apply their laws faithfully. There are exceptions to that rule, like when two states have public policies that are at odds. But since the Oregon code claim process is not significantly different from that in California, there was no reason for the trial Court to decline to apply it here. 

Writ granted.

State Farm/Rico DQ Order Automatically Stayed Pending Appeal

URS Corp. v. Atkinson/Walsh Joint Venture, No. G055271 (D4d3 Sept. 26, 2017)

Plaintiffs’ attorneys got disqualified under the State Farm/Rico doctrine for improperly using documents that had been provided to them in connection with a mediation. They have appealed that order and seek, by writ of supersedeas, to stay any proceedings in the trial court pending the appeal. Which raises some interesting questions: 

1. Does an appeal of a DQ order give rise to automatic stay under Code of Civil Procedure § 916? 

2. And if so, does it just stay the DQ order, or the whole case?

No Damages for Taking an Arb-able Case to Court

Sargon Enters., Inc. v. Browne George Ross LLP, No. B271718 (D2d3 Sept. 26, 2017)

This is one of those issues that clients ask about with some frequency, but that hasn’t been the subject of a published opinion. Until now. The question is this: If a contract contains an arbitration clause, but, notwithstanding it, a party sues in court, can the other party recover its costs of the court litigation as damages for breach of the arbitration contract? The answer, apparently, is no. 

A Stored Communications Act Primer

Facebook, Inc. v. Superior Court, No. D072171 (D4d1 Sept. 26, 2017)  

The is a criminal case where the defendant argues, unsuccessfully, that he has a constitutional right to subpoena non-public Facebook posts from his alleged victim’s account, notwithstanding that federal law prohibits Facebook from disclosing that info. I’m not going to get into that. 

But the Stored Communications Act, 18 U.S.C. § 2701–12, is something civil litigators should be aware of. It prohibits a person or entity that provides electronic communications or remote computing services from divulging the contents of a communication that is stored, carried, or maintained by that service. § 2702. There are a bunch of exceptions, but a civil discovery subpoena is not one of them. Which is why you can’t subpoena your opponents’ emails directly from Google or AOL or whatever. You need to either demand that stuff from the opponent directly, or get their permission to have the service provide it, which is a permissible exception. See § 2703(b)(3). You can, however, get materials that aren’t the contents of communications, like subscriber information. § 2703(c).

Writ granted.

Weak SLAPP Beer

Mission Beverage Co. v. Pabst Brewing, LLC, No. B271781 (D2d2 Sept. 25, 2017)

This case is not a close call.

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.

Conflicts and the Pretend Partnership

Lynn v. George, No. G053563 (D4d3 Sept. 21, 2017)

This case presents an interesting quandary about how to deal with a scenario where the facts relevant to a motion to disqualify a lawyer substantially overlap with the merits of the case where the DQ motion is brought.

A Hot Mess of Preclusion

F.E.V. v. City of Anaheim, No. G052460 (D4d3 Sept. 19, 2017)

This is a civil rights case over a police shooting with a complicated procedural history. Plaintiff first filed in federal court, bringing a § 1983 claim as well as several pendant state claims. The district court granted summary judgment for Defendants on the § 1983 and declined ongoing supplemental jurisdiction over the state claims under 28 U.S.C. § 1367(c). A three judge 9th Circuit panel upheld the district court’s opinion on appeal. Plaintiff sought review en banc.

In the meantime, plaintiff refiled his state claims in state court. But since they were premised on the same factual scenario as the federal claims and governed by similar standards, the superior court found that the state claims were barred by the collateral estoppel effect of the federal judgment, even though the appeals were not final. (Federal preclusion applies from the entry of judgment, even when appeals are pending.) The Court of Appeal affirmed the dismissal.

But then the 9th Circuit granted review en banc and eventually reversed its the panel decision and the district court as well. Cert was eventually denied.

So plaintiffs filed a new state court case and moved to have the prior judgment vacated. The superior court denied the motion and the Court of Appeal denied a writ. The superior court then dismissed the new case, on res judicata grounds—the prior dismissal barred the new case, even though the preclusion that served as the basis of that case’s dismissal would no longer apply. Plaintiff appealed.

Plaintiff first argues that the en banc opinion automatically wipes out the first state court judgment. But that’s not consistent with the law. Under § 16 of the Restatement of Judgments—which is generally followed in California—when a judgement in case #2 is based on a judgment in case #1, the vacation of judgment #1 does not automatically nullify judgment #2. Instead, it subjects judgment #2 to being set aside through a procedurally appropriate vehicle. 

Nor can Plaintiff collaterally attack or obtain equitable relief from the earlier state court judgment. Restatement § 73 suggests that it is appropriate to give relief from a second judgment when it is based on an earlier judgment that is substantively vacated. That’s a grounds for relief from judgment that is specially enumerated in Federal Rule of Civil Procedure 60(b)(5). But for weird historical reasons, California does not have a clean Rule 60(b) analog.  

California does permit the equitable setting aside of a judgment—whether by motion filed in the original case or by filing a separate equitable action. But the grounds for that are very narrow. To vacate, a judgment needs to be facially void or the product of extrinsic fraud. While extrinsic fraud can be hard to define, there’s no way that the 9th Circuit’s en banc order turned the judgment in the first state case into a product of extrinsic fraud. So none of California’s procedural vehicles to set aside a judgment that was based on an earlier judgment that was reversed apply to the circumstances presented here.

At this point, the Court of Appeal is pretty boxed in. Because the judgment in the first case is final—indeed, affirmed on appeal—there isn’t any state law procedure to let plaintiff out from under that judgment. That’s the case even though the result is indisputably wrong, based as it is on the collateral estoppel effect of a judgment that was subsequently overturned.

So the court uses the only tool left. There’s an exception to res judicata when recognizing the effect of the first judgment would work a manifest injustice. An exception that is mostly recognized in cases that say that it doesn’t apply. But given the “highly unusual, even extraordinary” circumstances of the case, the court finds that the exception applies here. The essential concerns motivating preclusion doctrines aren’t present here. Indeed, applying preclusion runs contrary to the idea that cases deserve to be decided on the merits. And since the only merits decision in this case that informed the preclusion rulings was overturned as wrongly decided, the court declines to recognize the preclusive effect of the first judgment.

Reversed.

FWIW, I suppose there is a second option, but not in this court. The federal case is going back to the district court for trial. Given that there’s now a federal claim for the state claims to be pendent to, plaintiff could add the state claims back there, and they should relate back to the federal claim for staute of limitations purposes, since they are all based on the same conduct. But I get why the court here sees the need to step in to avoid an injustice.