Thursday, January 31, 2019

Direct Shipment Is Purposeful Availment

Jayone Foods, Inc. v. Aekyung Indus. Co., No. B282674 (D2d7 Jan. 22, 2019)

Plaintiffs are the heirs of Decedent, who allegedly died due to exposure to a Korean humidifier cleaning agent. They sued both the retailer and the California-based Importer and distributor of the product. Importer then tried to join the Korea-based Manufacturer of the agent on a cross-claim. But the trial court quashed service due to lack of personal jurisdiction.

Wednesday, January 30, 2019

Need Some Facts Here.

Fernandez v. Alexander, No. B283949 (D2d8 Jan. 28, 2109)

Medmal case where Plaintiff says her Ortho was negligent by recommending a cast when surgery was called for, which led to some bone callus forming and a deformation of her wrist. Ortho moved for summary judgment on, among other things, causation. Ortho’s expert’s declaration—which Plaintiff didn’t object to—said that the deformation was an equally likely result with either a cast or a surgery. Plaintiff’s expert’s declaration said, without additional detail, that Ortho’s decision “caused Plaintiff’s further deformity of her left wrist.” Ortho objected on lack of foundation. The trial court overruled the objection but granted summary judgment nonetheless. 

The Court of Appeal affirms. A reasoned expert declaration can give rise to a disputed fact issue meriting the denial of summary judgment. But a wholly conclusory declaration of opinion has no evidentiary value. So Plaintiff failed to meet her burden.

Affirmed.

Monday, January 28, 2019

Garbage in Garbage out.

Olive v. Gen. Nutrition Cntrs. Inc., No. B279490 (D2d4 Nov. 4, 2018)

Plaintiff is a Model, suing a Client under Civil Code § 3344 for violating his right of publicity by allegedly unauthorized use of his likeness in Client’s advertising. Section 3344(a) permits a plaintiff to recover whatever profits are attributable to an unauthorized use. Plaintiff designated three different experts to testify on that topic, but the trial court granted motions in limine to exclude two of them because they offered “nearly data free and methodologically primitive” analyses.

Thursday, January 24, 2019

An Arbitration Is Not an Official Proceeding Authorized by Law

Zhang v. Jenevein, No. B280047 (D2d7 Jan. 23, 2019)

Plaintiff here lost an arbitration where a clandestine recording of his conversation with Defendant was a key piece of evidence. Afterwards he sued defendant for violating Penal Code § 632, which prohibits recording confidential communications without everyone’s consent. Defendant filed an anti-SLAPP motion, which the trial court denied. The Court of Appeal here affirms. 


Defendant argued that the recorded statements were protective activity because they were made before or in connection with legislative, executive, or official proceedings, or any other official proceeding authorized by law. Code. Civ. Proc. § 425.16(e)(1), (2). Unfortunately for defendant, a bunch of cases have already held that an arbitration is not an official proceeding. Interestingly, Defendant didn’t argue that the taping was “in furtherance of” its arbitration efforts under § 425.16(e)(4). Cases have rejected that too, but other cases, albeit decided in a different context, have read (e)(4) as consistent with protecting seemingly unlawful conduct that “helps” first amendment protected activity. Indeed, that’s the issue that is pending in before the Supreme Court in the Wilson v. CNN case.


Affirmed.

Wednesday, January 23, 2019

No Transcript, New Trial

Dogan v. Comanche Hills Apartments, Inc., No. D072328 (D4d1 Jan. 22, 2019)
 
In Jameson v. Desta, the Supreme Court held that indigent litigants with fee waivers have a right to a free court reporter. If the failure to provide a reporter results in the litigant’s inability to litigate her appeal due to the lack of an inadequate record, an appellate court needs to reverse and remand for further proceedings.

Plaintiff got nonsuited after the close of her evidence But there was no reporter due to the same policy that was invalidated in Jameson. In reversing, the Court of Appeal holds that the description of the evidence in the trial court’s minute order was not a meaningful substitute for an actual reporters transcript. And although the trial in this case happened before the Jameson decision, the Court holds that the Jameson rule applies retroactively to all cases that are not yet final on appeal. 

Reversed.

Tuesday, January 22, 2019

Employee-ish Enough for Armendariz

Ramos v. Superior Court, No. A153390 (D1d1 Nov. 2, 2018)

The Court of Appeal holds that regardless of whether a non-equity income partner in a law firm is an employee or a partner for employment purposes, the balance of power in the relationship is employee-ish enough that the unconscionability rules that apply to FEHA and Tameny claims apply to whether she can be required to arbitrate the FEHA gender discrimination case she filed against the firm. Those weren’t followed here. So nobody is going to arbitration.


Writ granted.

Friday, January 18, 2019

Waiting on Wilson

Rall v. Tribune 365 LLC, No. B284566 (D2d8 Jan. 17, 2019)

In 2015, a Cartoonist and blogger for the Los Angeles Times wrote a blog post complaining about the way an LAPD officer treated him during a jaywalking stop back in 2001. That must peeved the LAPD pretty bad. Because the cops dug up evidence that the stop—fourteen years in the past—didn’t go down the way Cartoonist claimed and gave it to the Times. The Times did its own investigation. It decided that Cartoonist wasn’t playing it straight. The Times ultimately published a statement and a report of its investigation. It cut ties with Cartoonist and stopped publishing his work. 

Thursday, January 17, 2019

The Mind of a Jury

Guernsey v. City of Salinas, No. H043283 (D6 Dec. 17, 2018)

The Court of Appeal reverses and remands a defense verdict for one defendant because some jury instructions suggested a government immunity that wasn’t really in play. 


To show prejudice, plaintiff submitted a bunch of juror affidavits, which suggested that the jury relied on the instruction in answering “no” on two liability questions and that they “agreed” the instruction precluded liability. The Court holds that those statements are inadmissible under Evidence Code § 1150, which bars evidence of jurors’ subjective mental impressions. 


In doing so, it rejects a statement in dicta in Harb v. City of Bakersfield, 233 Cal. App. 4th 606 (2015), which suggested in passing that evidence of a jury’s “verbal agreement” was objective enough to admit under
§ 1150. As the Court explains, the statements of jurors during deliberation are admissible under § 1150 only when the statements themselves are juror misconduct. (E.g., an admission that the juror consulted an outside attorney for advice on the law.)  

The Court finds prejudice nonetheless. It finds persuasive (and admissible) the fact that the jury had made written annotations on its copy of the incorrect instruction, as well as on the verdict form. Moreover, some of the questions asked by the jury suggested confusion, and the evidence overall suggested that, if the jury weren’t confused about the immunity, it would have found the defendant liable.


Reversed.

Wednesday, January 16, 2019

A Bondsman, a Surety, and the People Walk into the Court of Appeal . . .

People v. Am. Surety Co., No. E067831 (D4d2 Jan. 15, 2019)

Under Code of Civil Procedure § 917.1, by posting an undertaking, a party can stay the enforcement of a money judgment pending appeal. If the judgment is affirmed and the defendant fails to satisfy, the surety pays the judgment and then becomes, in effect, the judgment creditor. But § 917.1 only applies to an appeal of a money judgment. 

Voluntary Mediation Fees Are Sometimes a Recoverable Cost

Berkeley Cement, Inc. v. Regents of the Univ. of Cal., No. F073455 (D5 Jan 7, 2019)

This is one of those long, grab-bag post-trial appeals that raises too many issues. As is typical when parties dilute their arguments like that, basically everything gets affirmed. In this option, all that stuff is unpublished. 


The only published part deals with whether fees paid to a mediator in connection with a mediation that is not court-ordered can be recoverable costs under Code of Civil Procedure § 1033.5. Mediation costs are neither categorically recoverable under § 1033.5(a), nor categorically unrecoverable under § 1033.5(b). They thus may be awarded when, in the discretion of the trial court, they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” § 1033.5(c)(4). 


An earlier Court of Appeal case held that mediation expenses were recoverable under the discretionary provision when the mediation was court-ordered. Gibson v. Bobroff, 49 Cal. App. 4th 1202 (1996). While that is perhaps sufficient to being “reasonably necessary,” the Court here declines to make it necessary


As the Court explains, expenses for a consensual mediation could potentially meet the reasonable necessity standard. Whether they do needs to be decided based on the facts and circumstances of a particular case. Here, the only challenge here is categorical. Appellant argues that a mediation not ordered by the court is never reasonably necessary. It doesn’t challenge the trial court’s fact-finding or its exercise of discretion under § 1033.5(c)(4). Given that the purely legal issues don’t carry the day, the trial court’s decision to award mediator fees gets affirmed.

Affirmed in relevant part.

Monday, January 14, 2019

No Bar Doesn't Bar DQ

Ogara Coach Co. v. Ra, No. B268730 (D2d7 Jan. 7, 2018)

This is kind of a tricky one. Attorney went to law school but didn’t take the bar. He eventually became the CEO of a Company that is the defendant in this case. Company doesn’t have a GC, but because of his law training, one of (then unlicensed) Attorney’s responsibilities is in interacting with Company various outside counsel. 


Friday, January 11, 2019

Costs of Proof

Orange Cnty. Water Dist. v. The Arnold Eng’g Co., No. D070763 (D4d1 Jan. 10, 2019)

This is a sixty-page opinion entirely devoted to an appeal of an award of $615,000 in costs of proof because the plaintiff—who lost at trial—denied a bunch of requests for admission. 

A Little Victory for the Freedom of Anonymous Speech on the Internet

Roe v. Halbig, No. H043248 (D6 Nov. 20, 2018)

Some foil-hatted deplorable claims to be getting at the “truth” of the 2012 Sandy Hill school shootings. He started a GoFundMe campaign and, in testament to the general awfulness of the times in which we live, raised more than $30k. But then GoFundMe shut him down because, well, he’s raising money to spread false conspiracy theories about the murders of innocent children.

Thursday, January 10, 2019

Wednesday, January 9, 2019

According to Proof Ain’t Worth Jack

Yu v. Liberty Surplus Ins. Corp., No. G054522 (D4d3 Jan. 4., 2019)

Although basically everyone does it, it’s not really proper to to demand unquantified “damages according to proof” in a complaint. In most cases, Code of Civil Procedure § 425.10(a) requires a demand for money damages to state the amount of the demand. But it usually doesn’t matter, because a court can award relief irrespective of the prayer. § 580(a). Except, of course, in the case of a default judgment, for which an award more than the amount demanded is void as a matter of law. Id.; see also § 585(a), (b). Which means, effectively, if you allege “according to proof” you’ll need to amend to put in a number and re-serve process before you take a default. Or else you get zero.

The complaint here said according to proof and nobody bothered to amend to put in a number. So Plaintiff’s $1.2 million default judgment on a third party indemnity cross-claim assigned to her by the original defendant is void. Nor was the judgment saved by the fact that the cross-claim incorporated the original complaint—which contained a $10 million demandby reference. The incorporation was expressly “for identification and informational purposes only.” Even if the cross-complaint could theoretically incorporate a demand contained in some other pleading—which seems like a questionable way to give notice—the reference here was too vague and equivocal to meet the general elements of the incorporation by reference doctrine.

Affirmed. 

Tuesday, January 8, 2019

Nominal Statutory Damages Draw Right to Jury Trial

Brown v., Mortensen, No. B281704 (D2d1 Jan. 3, 2019)

The Court here holds that there’s a right to jury trial over a claim to recover nominal statutory damages under the Confidentiality of Medical Information Act. Civ. Code §§ 56, et seq. The statutory damages are, in effect, a penalty, and statutory penalties have historically been treated as actions at law, not equity. 

There is not, however, a right to jury trial on the Act’s attorney-fee shifting. The right to jury trial can sometimes attach to a fee award, but only when attorneys’ fees are recoverable as an element of damages. For instance, that happens in some kinds of insurance cases. But ordinary prevailing party fee awards, like the one in the Act, are an incidental form of relief that is properly adjudicated by a post-trial fee motion to be decided by the court. 

Reversed.

Fairwell to California-Forum Going-Private Litigation

Drulias v. 1st Century Bancshares, Inc., No. H045049 (D6 Dec. 21, 2018)

Most public companies are incorporated in Delaware. Which means that, under the internal affairs doctrine, Delaware law governs the relations between the company, its officers and directors, and its stockholders. But the modern understanding of the internal affairs doctrine does not generally require litigation over those issues to be brought in the courts of the state of incorporation. Indeed, California’s codification of the doctrine in Corporations Code § 2116 specifically says that duties arising under the corporate law of out of state corporations “may be enforced in the courts of this state.” 

Part of the Delaware brand, however, is the Court of Chancery, a special court of super smart corporate law savvy judges who have the reputation of being able to resolve emergency disputes over Delaware corporate law in like three days by issuing a 300 page opinion with 523 footnotes. I have litigated there. It’s impressive. So most Delaware companies would prefer to resolve their shareholder cases in Delaware, instead of some random state court that is less laser focused on the finer points of Delaware corporate law.

Plaintiffs, however, dont always agree. Especially when a Delaware court would likely toss a case on the pleadings. So Delaware companies started amending their bylaws to require shareholder disputes to be litigated in Delaware courts. And several years ago Delaware’s courts—ever protective of their brand—held that was a valid thing to do. But up till now no published California decision had addressed whether a Delaware forum selection bylaw was adequate to curtail litigation that was nonetheless filed in California state court.

The Court of Appeal does so here. It explains that the enforcibility of the forum selection is an issue of Delaware law, which has been resolved. Nor are there any valid reasons for a California court to refrain from honoring that selection. Although § 2116 permits California courts to assume jurisdiction over cases arising under the corporate law of other states, it does not give stockholders an absolute right to litigate here. Nor are there any fairness concerns that overwhelm the bylaw’s choice of Delaware forum. When an investor decides to invest in a Delaware corporation, it is perfectly reasonable for him or her to expect that the corporation will require shareholder disputes to be resolved in the Courts of the jurisdiction that best knows the law that governs the dispute.

Affirmed.

Monday, January 7, 2019

Quickie § 998 Offer Not in Good Faith

Licudine v. Cedars-Sinai Med. Cntr., No. B286350 (D1d2 Jan. 3, 2019)

If a Defendant turns down a Plaintiff’s valid § 998 offer and then Plaintiff beats the number at trial, Plaintiff gets to recover prejudgment interest from the date of the offer. But the offer has to be valid. And to be valid, the offer has to have been made in good faith—§ 998 exists to foster reasonable settlements, not to reward the parties for engaging in gamesmanship.


Here, Plaintiff, who made no demand in her prayer for relief, sprung a §998 offer on defendant only a few days after the answer was filed. Defendant had yet to obtain any discovery on damages. (Or basically anything else for that matter.) The Court of Appeal here affirms the trial court’s finding that the offer wasn’t in good faith. In doing so, it notes that although the good faith analysis looks to a totality of the circumstances, three factors are “especially pertinent”: “(1) how far into the litigation the 998 offer was made; (2) the information available to the offeree prior to the 998 offer’s expiration; and (3) whether the offeree let the offeror know it lacked sufficient information to evaluate the offer, and how the offeror responded.”


Affirmed.

Just the Facts, Appellant

People v. Ashford University , No. D080671 (D4d1 Mar. 8, 2024). This is a UCL/FAL case that the Cal. AG brought against an online university...