Wicks v. Antelope Valley Healthcare Dist., No. B297171 (D2d8 Jun. 1, 2020)
Appeal of a granted summary judgment in a med-mal case. Defendant put in the declaration of an expert who testified about a lack of causation. The expert reviewed the medical records and included them with his declaration. But Defendant’s separate statement cited only the paragraphs of the declaration containing the expert’s opinions. Court here holds that was adequate under Rule of Court 3.1350(d)(3), which requires evidentiary citations in a separate statement to make “reference to the exhibit, title, page, and line numbers” of any cited evidence.
Affirmed.
Tuesday, June 30, 2020
Monday, June 29, 2020
Trademarks and Testimony
Hart v. Keenan Props., Inc. No. S253295 (Cal. May 21, 2020)
I thought the Court of Appeal opinion on this one was kind of hinky when I wrote on it back in 2018. The Supreme Court granted review, and agrees. Justice Corrigan’s unanimous analysis on the hearsay issue is a little different than mine, but it gets to the same place.
Basically, the issue is whether a construction foreman could testify about seeing a logo on a bill for asbestos-containing pipe for product ID purposes. The trial court let it in over hearsay, secondary evidence, and authentication objections. The Court of Appeal, in a divided opinion, reversed, mostly finding that the testimony was hearsay.
Justice Corrigan, writing for a unanimous court, finds that the testimony about the invoices wasn’t offered for its truth, so there was no hearsay issue. In order to come in as nonhearsay, there must be some relevance independent of the truth of the statement. According to the Court, the witness’s testimony about the logo was not offered to say that the invoice is true, but instead as circumstantial evidence of a link between plaintiff’s workplace and the identity of the manufacturer of the pipe. It is relevant as such even if the quantities and costs of the pipe reflected in the invoice are wrong.
In getting to that result, the Court analogizes to criminal cases where mail or other documents bearing a criminal defendant’s name has been admitted, not to show the truth of whatever the document says (e.g., that the defendant is, in fact licensed to drive or that she owes $43 to the electric company), but to show a connection between the defendant and the premises. So here, the relevance of the evidence didn’t turn on the truth of the company’s name and logo being the source of the pipe. Instead, it was one fact that, along with many others, formed an inferential link between the company and the pipe.
The Court also dispenses with the other arguments that managed mix up the Court of Appeal. Testimony about the invoice was permissible under the secondary evidence rule, notwithstanding its unavailability, because it was lost or destroying without any fault on the part of the plaintiff. Evid. Code § 1523(b).
Nor was authenticity an impediment to admissibility. All that’s needed to show authenticity is a prima facie case that, if believed by the trier of fact, shows the document is what it purports to be. See §§ 403(a)(3), 1400. Testimony by the author of the document is not required. Generally, circumstantial evidence, including the document itself, and a lack of any basis to believe inauthenticity will be enough. Here, that standard was met by the testimony of the witness,’ given his familiarly with receiving materials at the work site and related paperwork, and in particular his knowledge of the pipe manufacturer and its logo. To the extent there were vagaries or inconsistencies in the testimony of an eighty-year-old man about the contents of a document he saw forty years ago, those go weight, not admissibility.
Court of Appeal reversed.
I thought the Court of Appeal opinion on this one was kind of hinky when I wrote on it back in 2018. The Supreme Court granted review, and agrees. Justice Corrigan’s unanimous analysis on the hearsay issue is a little different than mine, but it gets to the same place.
Basically, the issue is whether a construction foreman could testify about seeing a logo on a bill for asbestos-containing pipe for product ID purposes. The trial court let it in over hearsay, secondary evidence, and authentication objections. The Court of Appeal, in a divided opinion, reversed, mostly finding that the testimony was hearsay.
Justice Corrigan, writing for a unanimous court, finds that the testimony about the invoices wasn’t offered for its truth, so there was no hearsay issue. In order to come in as nonhearsay, there must be some relevance independent of the truth of the statement. According to the Court, the witness’s testimony about the logo was not offered to say that the invoice is true, but instead as circumstantial evidence of a link between plaintiff’s workplace and the identity of the manufacturer of the pipe. It is relevant as such even if the quantities and costs of the pipe reflected in the invoice are wrong.
In getting to that result, the Court analogizes to criminal cases where mail or other documents bearing a criminal defendant’s name has been admitted, not to show the truth of whatever the document says (e.g., that the defendant is, in fact licensed to drive or that she owes $43 to the electric company), but to show a connection between the defendant and the premises. So here, the relevance of the evidence didn’t turn on the truth of the company’s name and logo being the source of the pipe. Instead, it was one fact that, along with many others, formed an inferential link between the company and the pipe.
The Court also dispenses with the other arguments that managed mix up the Court of Appeal. Testimony about the invoice was permissible under the secondary evidence rule, notwithstanding its unavailability, because it was lost or destroying without any fault on the part of the plaintiff. Evid. Code § 1523(b).
Nor was authenticity an impediment to admissibility. All that’s needed to show authenticity is a prima facie case that, if believed by the trier of fact, shows the document is what it purports to be. See §§ 403(a)(3), 1400. Testimony by the author of the document is not required. Generally, circumstantial evidence, including the document itself, and a lack of any basis to believe inauthenticity will be enough. Here, that standard was met by the testimony of the witness,’ given his familiarly with receiving materials at the work site and related paperwork, and in particular his knowledge of the pipe manufacturer and its logo. To the extent there were vagaries or inconsistencies in the testimony of an eighty-year-old man about the contents of a document he saw forty years ago, those go weight, not admissibility.
Court of Appeal reversed.
Friday, June 19, 2020
Still Dreaming of a Unified Theory of Equitable Estoppel
Doe v. Marten, No. A153427 (D1d3 Jun. 4, 2020)
Almost seven (!) years ago I wrote a post discussing how an overly rigid, elements-based test for equitable estoppel was causing a lot of confusion. Equitable estoppel encompasses several different things with a common theme of justifiable reliance. The exact requirements for its application depend on context. This is another one of those cases.
Plaintiff sued a doctor who allegedly botched a surgery. She filed an arbitration demand only a couple of months after her claims accrued. Doctor responded, and the parties proceeded to putz around in arbitration for three years. But it ultimately came out that the inscrutable signature on the arbitration agreement actually belonged to some other doctor. So Doctor got the arbitration stayed and Plaintiff filed suit a couple of days later.
So the question is whether Doctor is equitably estopped from claiming that the one year statute of limitations for medmal in Code of Civil Procedure § 340.5 bars the case. After the jury gave a $6.6 million verdict, the trial judge decided the case was time-barred and that equitable estoppel didn’t apply. The trial court found, among other things, that Plaintiff was a sophisticated party, unlikely to be misled, and—looking to our old friend the four-element test’s false assertion element—that Doctor’s decision to respond to the arb petition was not a false statement or concealment.
But that misses the point, as the Court of Appeal here explains. Doctor participated in the arbitration proceedings for three years. That participation doesn’t need to be false or a lie or fraudulent to be the basis of an estoppel to claim the running of the statute. It just needs to be something that Doctor deliberately did, and which Plaintiff reasonably relied upon in deciding to wait to file a lawsuit. If, for example, Doctor truthfully asked Plaintiff to forebear bringing suit while they tried to mediate, that would create an estoppel. The Court of Appeal here struggles somewhat to reconcile the various conflicting lines of precedent and tests, but it gets to the right point by the end.
Reversed.
Almost seven (!) years ago I wrote a post discussing how an overly rigid, elements-based test for equitable estoppel was causing a lot of confusion. Equitable estoppel encompasses several different things with a common theme of justifiable reliance. The exact requirements for its application depend on context. This is another one of those cases.
Plaintiff sued a doctor who allegedly botched a surgery. She filed an arbitration demand only a couple of months after her claims accrued. Doctor responded, and the parties proceeded to putz around in arbitration for three years. But it ultimately came out that the inscrutable signature on the arbitration agreement actually belonged to some other doctor. So Doctor got the arbitration stayed and Plaintiff filed suit a couple of days later.
So the question is whether Doctor is equitably estopped from claiming that the one year statute of limitations for medmal in Code of Civil Procedure § 340.5 bars the case. After the jury gave a $6.6 million verdict, the trial judge decided the case was time-barred and that equitable estoppel didn’t apply. The trial court found, among other things, that Plaintiff was a sophisticated party, unlikely to be misled, and—looking to our old friend the four-element test’s false assertion element—that Doctor’s decision to respond to the arb petition was not a false statement or concealment.
But that misses the point, as the Court of Appeal here explains. Doctor participated in the arbitration proceedings for three years. That participation doesn’t need to be false or a lie or fraudulent to be the basis of an estoppel to claim the running of the statute. It just needs to be something that Doctor deliberately did, and which Plaintiff reasonably relied upon in deciding to wait to file a lawsuit. If, for example, Doctor truthfully asked Plaintiff to forebear bringing suit while they tried to mediate, that would create an estoppel. The Court of Appeal here struggles somewhat to reconcile the various conflicting lines of precedent and tests, but it gets to the right point by the end.
Reversed.
Thursday, June 18, 2020
Properly Certified
Plaintiff in this wage and hour class action was an absent member of a class in an earlier class action, wherein a class was certified, but later decertified. Defendant says Plaintiff is collaterally estopped from certifying a class here by the force of the decert order in the earlier case.
Under an earlier line of cases, California law ultimately settled on the rule that an absent class member is not precluded by an order denying class certification in an earlier case. That’s because, prior to certification, an absent member of a class isn’t really a party or in any privy or representative relationship with any party. So the mutuality element is absent.
But once a class has been certified, the lead plaintiff takes on a representative role with the rest of the class and is capable of taking action in the litigation that can have a binding effect on the rest of the class. According to the Court of Appeal, however, that still isn’t enough to bind Plaintiff here to the decertification ruling in the prior case.
First, in contrast to federal law, California law has long viewed members of a certified class as non-parties. So, for instance, a class member who objects to the settlement needs to intervene before he or she has standing as a party to appeal.
More importantly, perhaps, is that preclusion generally applies to members of a properly certified class. The whole purpose of the class certification process is make sure the class is structured such that lead plaintiffs and their lawyers can adequately represent the interests of absent class members. But a class that gets de-certified is a class where those features are lacking in some meaningful way. And the fact that flaws in the structure don’t become clear until sometime after a class has been improvidently certified doesn’t mean that the class was properly certified in the interim.
Tuesday, June 16, 2020
If You Litigate, You Can't Arbitrate
Fleming Dist. Co. v. Younan, No. A157038 (D1d3 May 15, 2020)
An employment contract contains an arbitration clause. But Employee files a wage claim with the Labor Commissioner. Employer claims that the Labor Commissioner case can’t proceed, given the arbitration clause. But instead of immediately moving to compel arbitration, Employer winds up litigating the wage claim. Employee wins. Then, in connection with a demand for a trial de novo in superior court, Employer finally files an arbitration petition. Too late. Litigating the claim before the Labor Commissioner is not consistent with the right to arbitrate. Employer needed to do more than complain that the case was arbitrable. It needed to take active steps to move the case to arbitration. By filing to do that in a timely fashion, Employer waived the right to compel.
Affirmed.
An employment contract contains an arbitration clause. But Employee files a wage claim with the Labor Commissioner. Employer claims that the Labor Commissioner case can’t proceed, given the arbitration clause. But instead of immediately moving to compel arbitration, Employer winds up litigating the wage claim. Employee wins. Then, in connection with a demand for a trial de novo in superior court, Employer finally files an arbitration petition. Too late. Litigating the claim before the Labor Commissioner is not consistent with the right to arbitrate. Employer needed to do more than complain that the case was arbitrable. It needed to take active steps to move the case to arbitration. By filing to do that in a timely fashion, Employer waived the right to compel.
Affirmed.
Monday, June 15, 2020
Three Years Wait for Fait Accompli
Nelson v. Tucker Ellis, LLP, No. A153661 (D1d3 May 5, 2020)
Three years ago, the Court of Appeal determined that an attorney’s work product belongs to the firm, not the attorney. Thus when Firm received a subpoena for documents implicating the work product of a former Attorney, it didn’t need to seek his permission before producing the documents.
The prior ruling was a writ ordering reversal of a summary judgment ruling in Attorney’s favor. On remand, the trial court granted Firm’s motion for judgment on the pleadings, finding that the Court of Appeal’s ruling was inconsistent with Attorney’s theory of liability, and, in the alternative, that the claims were barred by the litigation privilege. Attorney appealed, and the Court of Appeal affirms.
Principally, the Court holds that the prior ruling appellate ruling that Firm held the work product privilege constituted law of the case. In its strong version, the law of the case doctrine holds that earlier appellate opinions in a case bind subsequent proceedings in the trial court or future appeals to an equal court. Here, attorney alleged several different causes of action—interference with contract, invasion of privacy, negligence, conversion. But each claim had at least one element that was premised on Firm’s having wrongfully disclosed Attorney’s work product. It follows that prior ruling on appeal was fatal to all the claims.
In the alternative, the claims were also barred by the litigation privilege. Civil Code § 47(b) bars any tort liability grounded on litigation-related communications. Here, Attorney’s claims were based on Firm’s having produced documents in response to a third party subpoena in a litigation. Although not every act Firm took was necessarily communicative, the non-communicative acts, like selecting what documents to produce in response, were predicate to the communicative act of producing the documents. Given the broad construction afforded to § 47(b), Firm’s acts were, on the whole, communicative enough to fall within the privilege.
Finally, the Court of Appeal affirms that Attorney didn’t need to be afforded leave to amend his complaint. Attorney did not identify any facts that would preclude the Firm’s ownership of the work product protection from cutting the legs out from under his claims. So any amendment would have been futile.
Affirmed.
Three years ago, the Court of Appeal determined that an attorney’s work product belongs to the firm, not the attorney. Thus when Firm received a subpoena for documents implicating the work product of a former Attorney, it didn’t need to seek his permission before producing the documents.
The prior ruling was a writ ordering reversal of a summary judgment ruling in Attorney’s favor. On remand, the trial court granted Firm’s motion for judgment on the pleadings, finding that the Court of Appeal’s ruling was inconsistent with Attorney’s theory of liability, and, in the alternative, that the claims were barred by the litigation privilege. Attorney appealed, and the Court of Appeal affirms.
Principally, the Court holds that the prior ruling appellate ruling that Firm held the work product privilege constituted law of the case. In its strong version, the law of the case doctrine holds that earlier appellate opinions in a case bind subsequent proceedings in the trial court or future appeals to an equal court. Here, attorney alleged several different causes of action—interference with contract, invasion of privacy, negligence, conversion. But each claim had at least one element that was premised on Firm’s having wrongfully disclosed Attorney’s work product. It follows that prior ruling on appeal was fatal to all the claims.
In the alternative, the claims were also barred by the litigation privilege. Civil Code § 47(b) bars any tort liability grounded on litigation-related communications. Here, Attorney’s claims were based on Firm’s having produced documents in response to a third party subpoena in a litigation. Although not every act Firm took was necessarily communicative, the non-communicative acts, like selecting what documents to produce in response, were predicate to the communicative act of producing the documents. Given the broad construction afforded to § 47(b), Firm’s acts were, on the whole, communicative enough to fall within the privilege.
Finally, the Court of Appeal affirms that Attorney didn’t need to be afforded leave to amend his complaint. Attorney did not identify any facts that would preclude the Firm’s ownership of the work product protection from cutting the legs out from under his claims. So any amendment would have been futile.
Affirmed.
Friday, June 12, 2020
When You Get There, Remember It's Nev-æd-uh, Not Na-Vah-Duh.
Farina v. SAVWCL III, LLC, No. B294516 (D2d8 Jun. 10, 2020)
Back in what we will probably soon start calling the last financial crisis, there was a hard money Lender in pooling Investor money to loan to real estate Developers in Las Vegas. Lender, which was also a Nevada entity located in Nevada, facilitated contractual arrangements between Developers and Investors. There were contracts (promissory notes) but no contact between Developers and Investors. Most of Investors in Nevada. But about 10 percent of the Investors were from California.
The music came to a stop in the Vegas real estate market in late 2007. The loans failed. Lender apparently went bk. Investors sued Developers for fraud, not in Vegas, but in LA Superior. (Lender isn’t a party to the case.) Developers moved to dismiss for lack of personal jurisdiction. The trial court granted the motion.
The issue comes down to personal availment. The evidence showed that Developers weren’t directing Lender to reach out to Californians. At best, someone at Developers once sent a letter to someone at Lender, proposing that Investors trade their loans for equity interests in a joint venture to work out the souring debt.* (It was this swap that purportedly consummated the fraud.) Lender then sent that letter along to Investors with a letter of its own explaining the proposal.
There was no evidence, however, that at the time Developers wrote the letter that they directed Lender to send their letter to Investors in California. Indeed, there was no evidence that Developer even knew at the time that any Investor was in California. That’s not personal availment.
Nor was the mere promissory notes between California Investors and Developer enough to create personal jurisdiction here. The notes lent money to invest in real estate in Nevada, facilitated by a Nevada entity, governed by Nevada law and they were executed by Developers in Nevada. They specifically state that Investors’ addresses were on file with Lender (at its Nevada address.) Absent any evidence that Developers knew they were dealing with Californians, that’s not enough.
Finally, the fact that Developers retained some California-based architects and consultants to work on the developments did not create jurisdiction. For specific jurisdiction, the claims need to arise from or relate to the in-state contacts. But Plaintiff’s fraud claims had nothing to do with who Developers hired to work on their project. Indeed, there was not even any evidence that Investors even knew who Developers hired.
Affirmed.
*In what has to be the funniest parenthetical naming reference in a recent Court of Appeal decision, the Court explains, “[t]he joint venture’s name is SAVWCL III, LLC. We are unsure how to pronounce that, so we call it Joint Venture.”
Back in what we will probably soon start calling the last financial crisis, there was a hard money Lender in pooling Investor money to loan to real estate Developers in Las Vegas. Lender, which was also a Nevada entity located in Nevada, facilitated contractual arrangements between Developers and Investors. There were contracts (promissory notes) but no contact between Developers and Investors. Most of Investors in Nevada. But about 10 percent of the Investors were from California.
The music came to a stop in the Vegas real estate market in late 2007. The loans failed. Lender apparently went bk. Investors sued Developers for fraud, not in Vegas, but in LA Superior. (Lender isn’t a party to the case.) Developers moved to dismiss for lack of personal jurisdiction. The trial court granted the motion.
The issue comes down to personal availment. The evidence showed that Developers weren’t directing Lender to reach out to Californians. At best, someone at Developers once sent a letter to someone at Lender, proposing that Investors trade their loans for equity interests in a joint venture to work out the souring debt.* (It was this swap that purportedly consummated the fraud.) Lender then sent that letter along to Investors with a letter of its own explaining the proposal.
There was no evidence, however, that at the time Developers wrote the letter that they directed Lender to send their letter to Investors in California. Indeed, there was no evidence that Developer even knew at the time that any Investor was in California. That’s not personal availment.
Nor was the mere promissory notes between California Investors and Developer enough to create personal jurisdiction here. The notes lent money to invest in real estate in Nevada, facilitated by a Nevada entity, governed by Nevada law and they were executed by Developers in Nevada. They specifically state that Investors’ addresses were on file with Lender (at its Nevada address.) Absent any evidence that Developers knew they were dealing with Californians, that’s not enough.
Finally, the fact that Developers retained some California-based architects and consultants to work on the developments did not create jurisdiction. For specific jurisdiction, the claims need to arise from or relate to the in-state contacts. But Plaintiff’s fraud claims had nothing to do with who Developers hired to work on their project. Indeed, there was not even any evidence that Investors even knew who Developers hired.
Affirmed.
*In what has to be the funniest parenthetical naming reference in a recent Court of Appeal decision, the Court explains, “[t]he joint venture’s name is SAVWCL III, LLC. We are unsure how to pronounce that, so we call it Joint Venture.”
Thursday, June 11, 2020
Intervenors Get Fees
Carlsbad Police Officers Assoc. v. City of Carlsbad, No. D075723 *D4d1 (May 18, 2020)
This is a “reverse public records act” lawsuit brought by some cop unions to prevent the disclosure of excessive force complaints, which are now subject to disclosure under a law passed in 2018. The ACLU and several media outlets sought to intervene. The trial court granted intervention, but conditioned it on the intervenors disclaiming any right to obtain fees under Code of Civil Procedure § 1021.5, which codifies the private attorney general doctrine. Ultimately the court agreed with intervenors’ position that the law required disclosure of the records. Intervenors then appealed the condition.
Under § 387(d)(1)(B), the intervenors were entitled to intervene as a matter of right. They had previously filed PRA requests to obtain the disputed documents, had the cops prevailed, intervenors’ ability to obtain the documents would have been impaired, and the real defendants in the case—various police departments—were essentially agnostic to the merits of the cops’ case. As the Court of Appeal explains, that didn’t necessarily preclude the court from subjecting the intervenors to appropriate conditions to ensure the efficiency of the litigation. But because intervenors of right have an interest in the controversy equivalent to that of a party, courts have less leeway to impose conditions than they do for permissive intervenors. Generally conditions on as of right intervenors are limited to “housekeeping” conditions aimed to prevent duplicative litigation.
The Court of Appeal holds that the trial court abused its discretion in imposing the condition. Indeed, “the analysis here is not close.” It is settled law that a successful intervenor in a reverse PRA case is entitled to a fee award under § 1021.5. Forcing the intervenors here to give that up impaired their substantive rights and ran contrary to the public policy justification for § 1021.5. The trial court went too far.
Reversed.
This is a “reverse public records act” lawsuit brought by some cop unions to prevent the disclosure of excessive force complaints, which are now subject to disclosure under a law passed in 2018. The ACLU and several media outlets sought to intervene. The trial court granted intervention, but conditioned it on the intervenors disclaiming any right to obtain fees under Code of Civil Procedure § 1021.5, which codifies the private attorney general doctrine. Ultimately the court agreed with intervenors’ position that the law required disclosure of the records. Intervenors then appealed the condition.
Under § 387(d)(1)(B), the intervenors were entitled to intervene as a matter of right. They had previously filed PRA requests to obtain the disputed documents, had the cops prevailed, intervenors’ ability to obtain the documents would have been impaired, and the real defendants in the case—various police departments—were essentially agnostic to the merits of the cops’ case. As the Court of Appeal explains, that didn’t necessarily preclude the court from subjecting the intervenors to appropriate conditions to ensure the efficiency of the litigation. But because intervenors of right have an interest in the controversy equivalent to that of a party, courts have less leeway to impose conditions than they do for permissive intervenors. Generally conditions on as of right intervenors are limited to “housekeeping” conditions aimed to prevent duplicative litigation.
The Court of Appeal holds that the trial court abused its discretion in imposing the condition. Indeed, “the analysis here is not close.” It is settled law that a successful intervenor in a reverse PRA case is entitled to a fee award under § 1021.5. Forcing the intervenors here to give that up impaired their substantive rights and ran contrary to the public policy justification for § 1021.5. The trial court went too far.
Reversed.
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