Some Deck Clearing

These are a handful of very old opinions that were just lingering untouched in the bottom of my queue. Briefly . . .

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Zakk v. Diesel, No. B284432 (D2d4 Mar. 24, 2019)

Supposed oral contract to pay a producer for movie sequels when he only worked on the original. Demurrers get sustained with leave over and over again. In his Third Amended Complaint, Plaintiff tweaks his theory to go from an overarching agreement to agree to compensation for the sequels, to more clearly explaining separate agreements from each film. The trial court said that was a sham, but the Court of Appeal disagrees. While there was certainly some refinement in the theory, the contract setup in the TAC was not completely inconsistent with that alleged in the three prior versions of the complaint, so the sham pleading rule didn’t apply.

Reversed.

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JPMorgan Chase Bank, N.A. v Ward, No. D073378 (D4d1 Mar. 28, 2019)

When it rains it pours. Another sham pleading case. The doctrine generally prevents a party from saving a pleading by withdrawing a crucial allegation in a later amendment. Here, between versions of a complaint, the plaintiff got new counsel and proposes to amend to withdraw an allegation of mistake in order to switch legal theories to bring a claim based on the enforcement of a an agreement as written. But the sham amendment rule is predicated on the integrity of factual allegations, not legal theories. Presumably, parties can do better legal research and refine their theories in amending a complaint. So since the allegation was largely a legal conclusion and the premise of the withdraw is largely a change of legal theories, the rule does not apply.

Reversed.

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Long v. Forty Niners Football Co., LLC, No. A142818 (D1d4 as modified Apr. 8, 2019)

Plaintiff filed a state case against the Forty Niners for getting shot in the parking lot at Candlestick Park. He then filed an identical federal case claiming diversity based on the conversion of the ’Niners from a California LP to a Delaware LLC. When the ’Niners suggested that Colorado River abstention merited staying the federal case in favor of the state, plaintiff dismissed the state case. But then the federal court later dismissed the federal case for lack of subject matter jurisdiction. (A Delaware LLC is not necessarily a citizen of Delaware.) Plaintiff then filed another state court case. By then, the statute had run on most of Plaintiff's claims.

Plaintiff claims tolling, but the superior court, and now the Court of Appeal, say no. This isn’t a case where Plaintiff made a good faith mistake about subject matter jurisdiction and then litigated for years in federal court, only for the jurisdictional defect to be belatedly recognized. His first state court case was jurisdictionally fine. There was no need to file the federal case, so equitable tolling does not apply. As the Court explains:

The doctrine of equitable tolling was not intended to burden a defendant or the courts with having to repeatedly re-start litigation of a case that was almost fully adjudicated, simply because the plaintiff had a last-minute change of mind about the forum.

Reversed.

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Zakaryan v. The Men’s Warehouse, Inc., No. B289192 (D2d2 Mar. 28, 2019)

This case addresses a split of authority between Larson—which held that you can’t split off part of a PAGA claim to arbitration and litigate the rest—and Esparza—which said the part of the claim that seeks unpaid wages, which go to the plaintiff and not to the DFEH, can be hived off and sent to arbitration. The Court here sides (mostly) with Larson, albeit for a slightly different reason. As the Court sees it (contrary to both Larson and Esparza) explained, the upaid wages are actually part of the PAGA penalty which would be paid to the government, along with a per week statutory fine. Since all of those claims are brought on a quasi qui tam basis, there’s no basis to split the claim and sent part if it to arbitration.

Affirmed.

Don’t Do This

Hernandez v. First Student, Inc., No. B281161(D2d8 Jul. 9, 2019)


Q: What’s a worse appellate strategy than raising almost twenty claims of error in an appeal?

A: Raising almost twenty claims of error on appeal, and then failing to support most of them with citations to the record or fleshed out legal argument.

The result here is mostly just a death march of forfeiture. And the few arguments that were adequately made are still so perfunctory that the Court bullseyes them like womp rats in Beggar’s Canyon back home.

Don’t do this.


Affirmed.

Careful What You Sign For ...

Monster Energy Co. v. Schechter, No. S251392 (Cal. Jul. 11, 2019)

About a year ago, the Court of Appeal held in this case that an attorney couldn’t be bound by a confidentiality clause in a settlement agreement because, notwithstanding the confi’s application to “the parties and their attorneys, the attorneys signed only as “approved as to form and content.” The Supreme Court reverses. The posture of the case is an anti-SLAPP motion so the plaintiffs only need to show “minimal merit,” i.e., make a prima facie showing on the issue. The Supreme Court finds (unanimously) that because the substantive provisions of the agreement contained several provisions that purported to bind the attorneys, a reasonable trier of fact could find that the attorneys agreed to be bound, notwithstanding the signatures being limited to approvals. That was enough to fend off an anti-SLAPP challenge.

Court of Appeal reversed.

Statute Solving Split Is a Clarification, Not a Change

Scott v. City of San Diego, No. D074061 (D4d1 Aug. 1, 2019)

While this appeal was pending, the Legislature amended the FEHA’s costs provision to make clear that costs could not be awarded against a plaintiff who brings a non-frivolous claim, even when that plaintiff fails to beat a Code of Civil Procedure § 998 offer. The Court of Appeal here holds that the amendment was a clarification, not a change, in the law, such that the standard could be applied to pre-amendment claims. At the time the fees were awarded, there was a split of authority in the Court of Appeal interpreting the pre-amendment statute. Plus, the legislative history of the bill contained strong statements of intent to clarify, not change, the law. That was enough to get the court here comfortable with applying the “clarified” standard to the cost award in this case.

Reversed.

There Must Be Jurisprudence...

Lacayo v. Catalina Rest. Grp., Inc., No. E069833 (D4d1 Aug. 1, 2019)

Not sure why this was published. Two pretty basic points: (1) When a court partially grants and partially denies a motion to compel arbitration, only the denial is an appealable order, because that is what the statute says; and (2) when the arb clause has a carve out for unfair competition claims, unfair competition claims are not arbitrable.

Affirmed.

Perpetual Removal Won’t Save You

Clipperjet Inc. v. Tyson, No. G055491 (D4d3 Aug. 7, 2019)

Generally, removing a case to federal court divests a state court of jurisdiction to do anything, especially to issue substantive orders. That’s true even when a case is ultimately remanded. But Defendant in this case had already removed the case once on a frivolous ground, only to be quickly remanded. A co-defendant removed again, on the same frivolous ground, only three days prior to a hearing on a motion to strike the complaint. Notwithstanding the second removal, the trial court denied the motion. Following a remand, Defendant never responded to the complaint. A default, and then a default judgment were entered. And then a motion for relief from default was later filed and denied.

A Seal Is the Real Deal

Palm Fin. Corp. v. Parallel Media LLC, No. B288017 (D2d8 Aug. 7, 2019)
 
Another solid opinion by Justice Wiley that avoids the formulaic style that sometimes makes Court of Appeal opinions really boring. It’s less than five pages long and not boring. Even though it’s on a pretty boring topic: the authentication of official records under Evidence Code §§ 1400(b) and 1452(c). Straightforward—just the necessary facts, a rule, and result.

Plaintiff is trying to collect on an English judgment. It submitted a “Final Costs Certificate.” The certificate has a red stamp on it with a crown design, an identification of the court, and the date. Defendant says plaintiff needed to put on evidence that the doc was authentic. But an official seal merits a rebuttable presumption of authenticity. Evidence Code § 1452 says “[a] seal is presumed to be genuine and its use authorized if it purports to be the seal of . . . [a] nation recognized by the executive power of the United States or a department, agency, or officer of such nation.” As the Court explains, “[t]his procedure dispenses with the necessity for proof of authenticity when there is no real dispute as to such authenticity, and it also assures the parties the right to contest the authenticity of official writings when there is a real dispute as to such authenticity.”

England, of course, is a recognized a nation. So the seal is presumed authentic. And since Defendant offered no proof otherwise, the document the real deal of what it purported to be.

Affirmed. 

We know you are real.

The Wrong Remedy

Pina v. Cnty of L.A., No. B285630 (D2d4 Aug. 7, 2019)

You can’t call expert witnesses at trial if you failed to designate them and offer them up for deposition. There’s one exception that rule. Code of Civil Procedure § 2034.310 permits a party to call an undesignated expert to “impeach the testimony of an expert witness” called by the other side. But in this context “impeach” means only to testify to the falsity or nonexistence of some fact on which impeached expert relied. The statute expressly prohibits an undisclosed expert from contradicting the impeached expert’s opinion. See § 2034.310(b).

Here, the trial court permitted an undisclosed expert to “impeach” the plaintiff’s expert by contradicting his opinion testimony on causation. The supposed justification for that was that the expert relied on discovery material Plaintiff produced too late in the game for Defendant’s disclosed expert to incorporate into his opinions. That was indeed probably a good excuse to let Defendant augment its disclosure with an additional expert or amend it to address additional topics. See §§ 2034.610, 2034.620. But it was not a justification for an undisclosed expert to give improper “impeachment” testimony that is expressly prohibited by § 2034.310(b). And since admitting the testimony was clearly prejudicial, a new trial is merited.

Reversed.

Alas, Justice for the Tiny Pool Victims!

Noel v. Thrifty Payless, Inc., No. S246490 (Cal. Jul. 29, 2019)

This is a pretty silly class action about whether the picture on the box of a pool sold at Rite-Aid is deceptive because it looked bigger than the actual pool, even though the actual dimensions were printed on the box. Plaintiff—who had taken almost no discovery—moved for class cert. The trial court denied it. It found the class wasn’t ascertainable because Plaintiff didn’t explain or show with evidence how the members of the class—20,000 people who bought the pool—could be identified and provided with notice. The Court of Appeal affirmed.