Machado v. Myers, No. D073824 (D4d1 Sept. 10, 2019)
This somewhat ugly boundary dispute between neighbors involves, among other things, encroaching tree roots and the placement of an air conditioning unit. It got resolved in a settlement, which was orally read into the record. The parties agreed the trial court would retain authority to enforce it under Code of Civil Procedure § 664.6. It seems, however, that the parties didn’t have the settlement entered as a formal judgment at that time.
A year later, a dispute broke out. Plaintiff moved under § 664.6 to enforce the settlement, including a proposed judgment that tracked the oral settlement. The court granted the motion, but still did not enter judgment. And then another dispute broke out. In connection with that motion, the Plaintiff again submitted a proposed judgment. But this judgment wasn’t the same as what the parties put on the record. The trial court signed it anyway.
That was error. Section 664.6 permits a court “enter judgment pursuant to the terms of [a] settlement.” The settlement needs to be either stated orally on the record or in a written agreement signed by the parties. Whatever judgment is entered needs to be identical to what was put on the record. A court has no power under § 664.6 to add or subtract from a settlement’s terms. Although a court has some leeway under § 664.6 to interpret a settlement, that’s not what happened here.
The Court explains, however, that Defendant was not entitled to relief under § 473(d), which permits a court to vacate void judgments and those entered as a result of clerical error. The judgment here was legally erroneous. That doesn’t make it void. Or a clerical error.
Instead, Defendant should have been afforded relief under § 663, which permits a court to vacate a judgment that has been entered as a result of legal error. In so finding, the Court of Appeal rejects two of Plaintiff’s procedural arguments against relief under § 663.
First, like a new trial motion, a § 663 motion has a special briefing and hearing procedure, codified in § 663a. Generally the motion is initiated by filing a “notice of intention” within a prescribed window of time, then the opening brief is due ten days later. See § 663(a), (d). But the Court of Appeal finds that filing a notice of motion with a brief attached is sufficient to satisfy the notice of intention requirement, so long as the filing is timely. And second, although the point of the motion is to have the court enter a different judgment, the Court of Appeal holds that there’s no per se requirement that a moving party submit a proposed judgment along with its motion.
Thus, on remand, the trial court should vacate the judgment and enter a new one that conforms with the settlement that had been stated on the record.
Reversed.
Friday, September 13, 2019
Friday, September 6, 2019
All Gone to Pot...
McClain v. Kissler, No. A152352 (D1d2 Aug. 29, 2019)
This an odd case. It’s a fight between some pro ses (although one of them is a lawyer) over contracts related to a marijuana business. Defendant (the lawyer) claimed that she was never properly served. But she nonetheless participated in the litigation for a long time. That said, she never moved to quash service or answered either. Plaintiffs, on the other hand, never tried to put her in default. Eventually, the trial court ordered Plaintiffs to do that, on pain of sanctions. After they did so, Defendant moved for both mandatory and discretionary relief under Code of Civil Procedure § 473(b). Which the trial court denied, finding that Defendant’s neglect was inexcusable.
The Court of Appeal affirms in a lengthy split decision. It’s all made harder by the fact that the case is procedurally complicated and the record is a mess. The lead and dissenting opinions disagree on a number of points about the basic events of the litigation. But the real debate is philosophical. One one hand (the majority view) just not bothering to answer, after months and months of litigation, and even after being told by the court that you need to do, isn’t excusable neglect. So discretionary § 473(b) relief can’t save Defendant. On the other hand, Defendant’s active participation in the litigation suggests it really didn’t make any sense to resolve the case by default (the dissent’s view). Both sides seem basically right, as a matter of first principles anyway.
So far as mandatory § 473(b) relief goes, the Court holds that a lawyer pro se can’t avail herself of that by filing a declaration and falling on her sword. The whole point of mandatory relief is to save the client from her lawyer’s mistakes. When the client and the lawyer are the same person, that doesn’t make sense.
Affirmed.
This an odd case. It’s a fight between some pro ses (although one of them is a lawyer) over contracts related to a marijuana business. Defendant (the lawyer) claimed that she was never properly served. But she nonetheless participated in the litigation for a long time. That said, she never moved to quash service or answered either. Plaintiffs, on the other hand, never tried to put her in default. Eventually, the trial court ordered Plaintiffs to do that, on pain of sanctions. After they did so, Defendant moved for both mandatory and discretionary relief under Code of Civil Procedure § 473(b). Which the trial court denied, finding that Defendant’s neglect was inexcusable.
The Court of Appeal affirms in a lengthy split decision. It’s all made harder by the fact that the case is procedurally complicated and the record is a mess. The lead and dissenting opinions disagree on a number of points about the basic events of the litigation. But the real debate is philosophical. One one hand (the majority view) just not bothering to answer, after months and months of litigation, and even after being told by the court that you need to do, isn’t excusable neglect. So discretionary § 473(b) relief can’t save Defendant. On the other hand, Defendant’s active participation in the litigation suggests it really didn’t make any sense to resolve the case by default (the dissent’s view). Both sides seem basically right, as a matter of first principles anyway.
So far as mandatory § 473(b) relief goes, the Court holds that a lawyer pro se can’t avail herself of that by filing a declaration and falling on her sword. The whole point of mandatory relief is to save the client from her lawyer’s mistakes. When the client and the lawyer are the same person, that doesn’t make sense.
Affirmed.
Thursday, September 5, 2019
Prong Two Doesn't Take Much
Jeffra v. Cal. State Lottery, No. B292775 (d2d8 Aug. 29, 2019)
This is basically the first post-Wilson anti-SLAPP decision in the employment context. Plaintiff is a whistleblower. He claims his employer, the state lottery, opened up and conducted a pre-textual internal investigation of him after he complained about the payment of certain lottery prizes. The infestation was oppressive, which led to his decision to retire early. He then sued for retaliation.
Case is made harder for Plaintiff because his case clearly arises from the investigation, not a termination. If it was the latter, under Wilson, the defendant would have to show something inherently expressive about the decision to end his employment to meet the arising from test in Code of Civil Procedure § 425.16(e)(4). But since it is based on an investigation by a government employer, that is considered an “official proceeding authorized by law” under § 425.16(e)(4).
In any event, Plaintiff came forward with enough evidence to make a prima facie case to beat the motion. Defendant says there was not any evidence of a causal relationship between the complaining and the launching of the investigation. But there is at least some evidence, and the Court is willing to draw inferences from circumstantial evidence in Plaintiff’s favor.
Other courts, including the Supreme Court, have equated the second prong anti-SLAPP burden with the non-movant’s burden in opposing summary judgment. The Court here explains, however, that “[t]his is not a summary judgment case . . . ; it is an anti-SLAPP case where there has been no discovery.” It is not entirely clear how that shuold affect the standard. But the Court seems to imply that the context merits grating particularly generous inferences.
Moreover, the Court finds that the prima facie case was not defeated by a declaration from the investigator stating that he was not aware of the complaining. In doing so, it equates the situation to § 437c(e), which permits the denial of summary judgment when the only evidence of state of mind is a declaration from that person attesting to it.
Reversed.
This is basically the first post-Wilson anti-SLAPP decision in the employment context. Plaintiff is a whistleblower. He claims his employer, the state lottery, opened up and conducted a pre-textual internal investigation of him after he complained about the payment of certain lottery prizes. The infestation was oppressive, which led to his decision to retire early. He then sued for retaliation.
Case is made harder for Plaintiff because his case clearly arises from the investigation, not a termination. If it was the latter, under Wilson, the defendant would have to show something inherently expressive about the decision to end his employment to meet the arising from test in Code of Civil Procedure § 425.16(e)(4). But since it is based on an investigation by a government employer, that is considered an “official proceeding authorized by law” under § 425.16(e)(4).
In any event, Plaintiff came forward with enough evidence to make a prima facie case to beat the motion. Defendant says there was not any evidence of a causal relationship between the complaining and the launching of the investigation. But there is at least some evidence, and the Court is willing to draw inferences from circumstantial evidence in Plaintiff’s favor.
Other courts, including the Supreme Court, have equated the second prong anti-SLAPP burden with the non-movant’s burden in opposing summary judgment. The Court here explains, however, that “[t]his is not a summary judgment case . . . ; it is an anti-SLAPP case where there has been no discovery.” It is not entirely clear how that shuold affect the standard. But the Court seems to imply that the context merits grating particularly generous inferences.
Moreover, the Court finds that the prima facie case was not defeated by a declaration from the investigator stating that he was not aware of the complaining. In doing so, it equates the situation to § 437c(e), which permits the denial of summary judgment when the only evidence of state of mind is a declaration from that person attesting to it.
Reversed.
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