We've Moved ....

After a two-year hiatus, 111 North Hill Street has decided to decamp for Substack. Thank you for your readership over the last twelve years. We can now be found at: https://mikeshipley1.substack.com/ Hope to see you there!

That's Not a Debate

Taylor v. Tesla, No. A168333 (D1d4 Aug. 8, 2024)

Plaintiffs in this case are also members of a class in a race discrimination class action brought against Tesla. There is a lot of discovery fighting in the class action, including over how much Tesla needs to produce regarding prior employee complaints of race discrimination. 

Outside of the litigation, Plaintiffs demanded their employment records from Tesla under some provisions of the Labor Code. Tesla stiffed them. So Plaintiffs sued Tesla under the PAGA for violating the Labor Code provisions.

Tesla responded with an anti-SLAPP motion, which was denied because the trial court found that the PAGA case—which was premised on Tesla’s failure to produce the employment records—did not arise from any protected activity.

The Court of Appeal agrees. Although there is some overlap between the class action litigation and the documents requested here, Tesla’s refusal to produce the documents is not a “written or oral statement,” so neither Code of Civil Procedure § 425.16(e)(1) or (2) apply. 

Tesla thus turns to (e)(4), which has been construed to encompass conduct. But that provision requires the conduct to be in connection with a public issue. The class action might address a significant public issue—allegations of racism at an enormous public company. But under the test in FilmOn, the conduct from which the claim arises must contribute, further, or participate in the debate on the public issue. Withholding employees’ personnel files in violation of statutory obligations to produce them does not meaningfully contribute to the public debate about racism at Tesla, so it does not satisfy that test.

Affirmed.

State Law Stare Decisis in the Ninth Circuit Court of Appeals

AGK Sierra de Montserrat, L.P. v. Comerica Bank, No. 23-15290 (9th Cir. Jul. 19, 2024)

We don’t usually do federal cases, but this one has an interesting take on state law.

Forty years ago, the 9th Circuit held that, under California state law, a prevailing party in a first-party breach of contract claim could recover its attorneys’ fees under an indemnity provision in the contract. See DeWitt v. W. Pac. R.R. Co., 719 F.2d 1448 (9th Cir. 1983). It later reaffirmed that decision, noting that there was little indication from California appellate courts that the rule was otherwise. Jones-Hamilton Co. v. Beazer Materials & Servs., 973 F.2d 688, 696 n.4 (9th Cir. 1992). 

But in the time since DeWitt, the California Court of Appeal repeatedly rejected its rule—including by expressly declining to follow DeWitt by name—finding that indemnity provisions justify an award of attorneys’ fees only for third-party claims. See Hillman v. Leland E. Burns, Inc., 209 Cal. App. 3d 860, 869 (1989); Otis Elevator Co. v. Toda, 27 Cal. App. 4th 559, 566 (1994); Jacobus v. Krambo Corp., 78 Cal. App. 4th 1096 (2000).

So the question is, how should the 9th Circuit handle that? Generally, the 9th Circuit’s rule on intra-circuit stare decisis says that the decision of a three-judge panel on a question of law binds all future panels until it is reversed or its logic has been completely undercut by the court sitting en banc or a court of last resort (typically the U.S. Supreme Court). See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). But here, the first panel opinion is rejected only by intermediate state courts—the California Supreme Court has never weighed in on the issue. That puts the Miller rule crosswise with the rule that federal courts should generally defer to state intermediate courts on issues of state law in the absence of compelling evidence that the state supreme court would rule differently. See Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 995 (9th Cir. 2007).

The Court finds that, on questions of state law, the Miller rule should yield to the rule of deference to state intermediate courts. Judge Miller (no relation to Miller) writes an interesting concurrence explaining why that is the case. In particular, he notes that persisting in an approach that intermediate state courts have rejected would undermine the purpose of the Erie doctrine, in ensuring that federal courts sitting in diversity apply state law in the same manner as state courts would. He notes that while there are other ways to correct panel error on state court issues—going en banc, referring issues to the California Supreme Court—they aren’t a good use of resources to correct a prior panel’s error in accurately predicting state law.

Reversed.

Getting All Meta

Cohen v. Superior Court, No. B330202 (D2d4 Jun. 6, 2024).

This one is pretty interesting, in a kind of meta way. 

The underlying litigation is a fight between neighbors over landscaping. Plaintiffs say Defendants’ shrubbery violates the LA Municipal Code. The purport to get their cause of action from a Government Code provision that states:

Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action. action.

 Gov’t Code § 36900(a).

That seems to me, at least, to say that a city attorney can bring either a misdemeanor case or a civil action to redress the violation of a city ordinance. But Plaintiffs say that “redressed by civil action” means that anyone can bring a civil action alleging an ordinance violation. That reading isn’t totally nuts or anything, but it’s awkward.

Plaintiffs, however, have a 20-year old Court of Appeal case that agrees with them on their side. Riley v. Hilton Hotels Corp., 100 Cal. App. 4th 599 (2002). Because, in the absence of other authority, that bound the trial court, it overruled the Defendants demurrer. Defendants took a writ.

Plaintiffs moved to dismiss the writ, claiming, among other things, that the Court of Appeal doesn’t have jurisdiction to order the superior court to ignore Riley, based on the lack of horizontal stare decisis in the Court of Appeal. 

That’s pretty obviously wrong. Nothing about Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 456 (1962) or the other cases interpreting California’s somewhat unusual stare decisis rules says that the Court of Appeal can’t grant a writ that orders the trial court to comply with a rule that is sideways with some existing Court of Appeal precedent. That’s a pretty basic upshot from not having horizontal stare decisis.

But the Court of Appeal goes on to say that because Riley was a decision of the 2/4 (albeit with a completely different panel), it doesn’t just get to disagree with Riley. It can overrule it.

I didn’t know that was a thing. I had always thought that one of the features of the whole Auto Equity setup was that the division of the Court of Appeal into geographic districts, and subdivision of some districts into divisions, had no significance from the perspective of stare decisis. See Tourgeman v. Nelson & Kennard, 222 Cal. App. 4th 1447, 1456 n.7 (2014). So, for instance, the 2/4 isn’t even technically bound by prior opinions of the 2/4, even if it’s unlikely to disagree with itself. (Although it happens, sometimes seemingly by accident.) And if you can’t bind or be bound, it’s difficult to understand how you could overrule. 

The Court here does cite a couple of cases where panels on Court of Appeal purport to overrule prior decisions out of the same division. See Est. of Sapp, 36 Cal. App. 5th 86, 109 (2019); Saucedo v. Mercury Sav. & Loan Assn., 111 Cal. App. 3d 309, 315 (1980); People v. Yeats, 66 Cal. App. 3d 874, 879 (1977). But none of them explains why a panel of the Court of Appeal actually has the power to overrule a prior decision, as opposed to merely disagree with it. It also cites some Supreme Court cases that explain when stare decisis should not preclude departing from prior precedent. See Moradi-Shalal v. Fireman's Fund Ins. Companies, 46 Cal. 3d 287, 296 (1988); Cianci v. Superior Court, 40 Cal. 3d 903, 923 (1985). But the “no horizontal stare decisis” rubric does not apply to the Supreme Court. As the cited cases show, it typically views itself bound by its prior decisions under principles of stare decisis, but also able to overrule them.

I’m not saying this is bad, really. Just under-theorized. I have been of the view for long time, including in some of the earliest posts on this blog, that California should consider some way to create greater consistency in the Court of Appeal. This could take the form of some kind of formal en banc procedure or an expansion of the workload of the Supreme Court. Both of those, however, are bureaucratically difficult. It seems like the rules could also be amended to permit the Supreme Court to grant and transfer, and provide the transferee court to act as a quasi en banc, with the authority to disapprove of inconsistent prior decisions of Court of Appeal, which would then be subject to further discretionary review by the Supreme Court. I believe, given the power afforded to the Judicial Council under Article VI, § 12(c) of the state constitution, this could be accomplished by a minor amendment to the Rules of Court.

But given the way Auto Equity works at the superior court level, permitting divisions of the Court of Appeal to “overrule” prior decisions of the same divisions, and only the same divisions, is arbitrary and likely to be ineffective. The one place it might work is when, like here, there’s an isolated outlier that is the only thing that speaks on an issue, incorrectly. The other overruling cases cited in the opinion seem to be similarly situated.

In any event, the Court, having decided it has the power to overrule Riley, overrules Riley. For all sorts of reasons, even if the statute is ambiguous, it seems clear that Government Code § 36900(a) does not create a private right of action for anyone to enforce a city ordinance in a civil suit.

Writ granted.

Pretend Master Calendar Is Even Worse than Real Master Calendar

Lorch v. Superior Court, No. D083609 (D4d1 May 16, 2024)

This writ case concerns the timeliness of a challenge to the assignment of a trial judge under Code of Civil Procedure § 170.6. 

In the event there are any non-lawyers who read this blog—which I guess is possible*—§ 170.6 lets a party file a declaration, once in a case, that says “the judge is prejudiced against me.” And that has the effect, whether the claim is true or not, of automatically reassigning the case to a new judge. It is an important procedure in California state court litigation. But since it is the kind of thing that can be abused, it has pretty strict limitations about both how often and when it can be used.

The timing of a § 170.6 depends on the way the court assigns its judges.** Some courts (mostly courts in NorCal, including SF Superior) use a master calendar system. In that system, you are never assigned a judge until trial. There are various judges who do specific pre-trial stuff—discovery, law and motion, etc. But then when you are ready for trial you go to the “master calendar” department—typically Department 1—and there’s a messy cattle call as cases are sent out to trial departments for trials, usually to begin almost immediately. In a master calendar system, you need to paper the judge as soon as you get the assignment. Like, on the spot, to the master calendar judge, live in Department 1. In the master calendar setup, a delay of a few hours will doom your challenge.

Other courts—including most civil cases in SoCal***—use an independent calendar system, where you get assigned a judge to do your case from the very beginning. In an IC system, you have 15 days to strike the judge after being informed of the assignment. In that system, if you get a late transfer to a new judge for trial, so long as the transfer is at least 10 days before trial, you need to strike at least 5 days  before the trial date. 

But in all events, and under any system, you need to take your strike before the onset of trial.

This case comes out of San Diego Superior, which is mostly an IC court. But SD Superior has a weird local rule that gives individual departments the authority to transfer cases, and it says in doing so, they are acting in a master calendar capacity. Which is an odd hybrid that makes the § 170.6 timing issues very confusing.

So here, the parties are in front of Judge #1, who doesn’t have time to try their case. (Based on the parties, it appears to be a Lemon law case, but the opinion isn’t super clear on that point.) On a Friday morning, Judge #1 tells the parties that they need to come back for a trial call on Monday at 1:30, when he would tell them where they were being transferred to for trial. But later that day, the court clerk calls Plaintiff’s attorney and tells her they are going to be transferred for trial to Judge #2. An hour later, Judge #1 entered a minute order to that effect, but it wasn’t served**** on the parties. 

Over the weekend, Plaintiff’s counsel e-files a strike, but she mistakenly checks the box that the client, instead of the attorney, is filing the required affidavit. About an hour beforehand, the parties learn they need to appear before Judge #2, not Judge #1, at 1:30 on Monday. Just before the hearing, Judge #2 issues an order rejecting Plaintiff’s challenge as untimely and “not in proper form.” 

The parties appear at 1:30 and Plaintiff raises the strike. Judge #2 informs them about the checkbox error and that the challenge was also denied as untimely under the master calendar rule. On Monday night Plaintiff’s counsel files a corrected form. The parties come back Tuesday and the judge informs them that the corrected form is nonetheless untimely under the master calendar rule. He denies a stay for plaintiff to take writ.

Trial begins later that day. The court’s action was so surprising that nobody has a court reporter. The following day—apparently during trial—Judge #2 signed an order denying the corrected challenge as untimely. The jury rendered a defense verdict the next day, and Judge #2 entered judgment for the Defendant.

Plaintiff takes a writ within the ten-day window to challenge the denial of a judicial disqualification under § 170.3(d). The Court of Appeal issues an OSC.

The only real fight Defendant puts up is to the timing of the writ. Although it was timely under § 170.3(d), Defendant says waiting till after trial gives rise to laches. But the Court of Appeal doesn’t buy it. There’s no unreasonable delay. The idea that Plaintiff’s counsel was going to draft and file a writ petition in a day, on a completely unexpected issue, while trying a case to a jury, is not something to fairly expect of a litigant. So even if laches could apply to a filing within the ten-day window, it wouldn’t apply here. 

As to timing issue, the Court notes that, subject to the specific day-based limits in the code, the only time limit in § 170.6 requires the challenge to be filed before a trial or contested hearing begins. The only exception relevant here is the master calendar rule. But the master calendar rule is premised on the parties being live in court, in front of the master calendar judge, when the assignment is made. Under established precedent, see Stevens v. Superior Court, 52 Cal.App.4th 55, 57 (1997), an assignment delivered on a call from court staff is inadequate to give rise to the very time delimited rule applicable to master calendar assignments.

The Court also notes in a footnote that a party should be permitted to correct a technical error in a § 170.6 affidavit, such as the checkbox error made by counsel here.

So far as the local rule that effectively deems every reassignment in San Diego as a master calendar assignment, that runs headlong into Supreme Court precedent that says a “court may not subject every case assignment to the master calendar rule of section 170.6 simply by labeling the assigning court a ‘master calendar department.’” See People v. Superior Court, 4 Cal.4th 1164, 1171 (1993). If you are going to do master calendar, do master calendar. But a “local court rule may not alter the true meaning of the statute by effectively deputizing every judge of the court to act as a master calendar judge.” So the rule is invalid.

 And because the strike should have been permitted, everything Judge #2 did afterwards was null and void. So Plaintiff gets a new trial, in front of a new judge. 

Writ granted.

 *Google has basically bailed on blogging support. So I have no idea who reads this. At this point, I might be writing a public diary about civil procedure. Which, I must admit, is a pretty weird thing to do. Are you there Bernie Witkin? It's me, Mike!

**In typical California fashion, there’s no statutory scheme that actually lays out these options. They just appear to have developed over time in different courts locally, and then § 170.6 was amended to conform to the various options.

***Some courts have master calendar for certain kinds of cases only. For instance, for the past several years, non-complex personal injury cases have used a master calendar system in LA Superior. 

****The fact that there isn’t any uniform system where superior courts serve the parties with orders electronically, is, in all candor, a f*cking disgrace. I don’t think there is anywhere else in the world where courts don’t serve orders by some electronic means. But in California, while some departments manage to do it sort of ad hoc, others stick to the slowest mail in the universe. (I get birthday cards from my mom in Pennsylvania in two days, so I am completely baffled how an order sent by first class mail takes two weeks to travel the five blocks from Stanley Mosk to my office. But that happens all the time.) And some courts—looking at you Alameda!—don’t bother to serve orders at all.

Trashing your Neighbors Is Not Speech in the Public Interest

Dubac v. Itkoff, No. B317061 (D2d8 Apr. 19, 2024)

This is an ugly beef between neighbors who dislike each other. A lot. Over a several month period in 2020, two of the neighbors (a husband and wife couple) sent a number of emails impugning the character of the other neighbor. They called him racist, accused him of accosting various women, called him a liar, and accused him of various and sundry misconduct connected to his role as a member of the board of the HOA of a six-unit condo building they all live in. 

Neighbor B sued Neighbors A for defamation and other torts along that line. Neighbors A respond with an anti-SLAPP motion, which the trial court mostly denied. Neighbors A appeal. The rub of the appeal is that, for the statements at issue to be “protected activity” under the anti-SLAPP statute, Code of Civil Procedure § 425.16, they need to have been made in connection with a “public issue” or an “issue of public interest.”

Here, they weren’t. They were made on small fora, where the general audience was the other homeowners in the condo. Even the statements that weren’t just personal attacks—like the claims about mismanaging the condo board—were not matters of public interest such that large numbers of people would care about them. 

The Court does a useful canvass of “name-calling” cases in the anti-SLAPP contexts, confirming that essentially private disputes are not the stuff of anti-SLAPP protection. As the court puts it:

The general public did not and could not know about this intra-building tiff. The audience was always tiny. It was never the ‘public.’

Affirmed.

The Jurisprudence of Signification

Wood v. Superior Court, No. A168463 (D1d2 Mar. 14, 2024).

Yes. You can change your legal name to Candi Bimbo Doll if you want to. See Code Civ. Proc. § 1275 et seq.

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 for deceptive marketing practices. By the Court’s description, it was a high pressure boiler-room type operation where the University’s marketing employees were encouraged to make a hard sell to perspective students. As part of that, the school’s admissions people made a bunch of false statements on telephone solicitations regarding myriad aspects of the costs and benefits of enrollment and the credential to be obtained. The trial court found that the University made nine different kinds of misrepresentations. Based on a statistical sample taken by the AG’s expert, it determined that that there were 1,243,099 violations of the UCL and FAL and assessed civil penalties of about $22.4 million.

University doesn’t appeal liability, but it challenges the penalty calculation in a bunch of ways. It succeeds in an argument that some of the calls were outside of the UCL or FAL statutes of limitations (4 and 3 years, respectively) and manages to get about $900k of the fine tossed. But it fails on several other challenges to the penalty. Chief among them is the fact that what counts as the unit of a UCL or FAL “violation”—each of which is subject to a $2,500 penalty—is essentially governed by a rudderless gestalt rule of “whatever the trial court thinks it is.” Defendants never win on that (although sooner or later there has to be a 14th amendment issue) and the University doesn’t improve the defense bar’s batting average here.

But the noteworthy procedural point in this case is the six pages the Court spends detailing “Defendants’ Briefing Violations.” In particular, the Court says that the Defendants’ statement of facts in the AOB presented a slanted and unduly argumentative version of the facts, particularly in context of a standard of review that does not view the facts in a light most favorably to an appellant. Rule of Court 8.204(a)(2)(C) requires an AOB to contain summary of significant facts. That has been interpreted to require the appellant to be accurate and fair in dealing with the record. California courts take the requirement seriously.

The Court further dings the University for making factual statements with no support in the record, for citing materials that were not appropriately part of the appellate record, and for seeking judicial notice in a procedurally improper manner.

Reversed in part.

Arguably Unauthorized Settlement Is Voidable, Not Void, under Code of Civil Procedure § 437(d).

W. Bradley Electric, Inc. v. Mitchell Engineering, No. A167137 (D1d5 Feb. 28, 2024)

Fatal traffic accident case where the Decedent’s family sued three Defendants—driver, the rideshare company she was working for, and a Contractor who had done some work on the sidewalk where she was walking. Contractor proceeded to cross-claim against two other companies (who appear to be other contractors) for equitable indemnification. As is the usual course in these kinds of things. everybody eventually sued everyone. Plaintiffs eventually settled with the new contractors for $10k a pop.

Contractor’s lawyers propose to their client that they make a similar $10k offer, and then that the settle the remaining contractor cross-claims for and agreement that the settlements are reasonable under Code of Civil Procedure § 877.6, and dismissals and fee waivers. That gets papered and the dismissals filed. Then the rest of the case settles.

Six months later, Contractor moves to vacate the dismissals of the other contractors as, among other reasons*, void under § 473(d), based on an assertion that the client never consented to its attorneys’ agreement to dismiss. The evidence of permission (Contractor appears to have waived privilege) was not entirely clear. But the trial court denied the motion. Contractor appeals.

The Court of Appeal finds that Contractor probably forfeited the § 473(d) by failing to squarely raise it in the trial court. But nonetheless, it reaches the merits. 

Canvassing the authority, the Court finds that a settlement entered without clear permission from a client is probably voidable but not void and thus not subject to vacation under § 473(d). The latter mostly deals with situations where the court never had jurisdiction to act. There’s an outlier case where the Court found that an attorney’s dismissal with prejudice, when the client only authorized a without prejudice dismissal was void under § 473(d). Romadka v. Hoge, 232 Cal. App. 3d 1231 (1991). But subsequent cases have recognized that Romadka really was faced with a case of attorney mistake that could be remedied under § 473(b), and not with an actually void judgment that could be vacated under § 473(d).

And in any event, the Court of Appeal finds that there was adequate evidence that Contractor had actually ratified the dismissal, and also that denying relief under § 473(d) was not an abuse of discretion.

Affirmed.

*Contractor also moved to vacate the dismissal as a result of attorney mistake, surprise, neglect, etc., under § 473(b). The court deals with that in an unpublished part of the opinion, so I’m not going to get into it.

Is Code of Civil Procedure § 1281.98 Prempted by the FAA?

Hohenshelt v. Superior Court, No. B327524 (D2d8 Feb. 27, 2024)

This is another case where an employer in an arbitration was late in paying the arbitrator’s fee so the employee moved to go back to litigating her case in court under Code of Civil Procedure § 1281.98. The employer here was clearly late under the relevant standard, and a bunch of recent cases are good authority that the upshot of that is that the employee does not need to arbitrate any more.

Employer argues, after a prompting for supplemental briefing, that the FAA preempts § 1281.98. The Court rejects that argument, based on the idea that § 1281.98 is an arbitration procedure statute that furthers, not dissuades against, arbitration by incentivizing parties to pay up and participate in full. So the Court of Appeal grants a writ ordering the litigation to proceed.

Justice Wiley dissents. He notes that California state courts don’t have the greatest record predicting how the US Supreme Court will rule on the preemption of anti-arbitration state laws under the FAA. Following a federal case district court case, Belyea v. GreenSky, Inc., 637 F. Supp. 3d 745, 759 (N. D. Cal. 2022), he notes that § 1281.98 can’t really encourage arbitration when its chosen enforcement method is to effectively invalidate an agreement to arbitrate. 

Setting aside whether SCOTUS’s manic desire to force arbitration on every employee and consumer is the right take on the law, Justice Wiley is clearly onto the the trend. Would not be surprised to see a cert grant on this in the next year or two.

Writ granted.

CCP § 998 Shifts Fees for Worse-Off Settlements

Ayers v. FCA US, LLC, No. B315884 (D2d8 Feb. 27, 2024).

This is a Lemon Law case involving dueling offers under Code of Civil Procedure § 998. Manufacturer made one offer. Then it made a second higher offer. And then a third that was even higher. Years go by. Then the Court of Appeal decided a case that said that if the Consumer subsequently trades the car in, the trade in value gets deducted from the cost basis that (trebled) sets the maximum damages amount. If good law,* that would lower Plaintiff’s damages by about $40k. Plaintiff then made an offer of his own, which was higher than Manufacturer’s second offer but lower than its third. Manufacturer took the deal.

Plaintiff subsequently moved for attorneys fees, which in Lemon Law cases can significantly exceed the Consumer’s recovery. Manufacturer argued, however, that the fees should be cut of at the point of its third § 998 offer, because that offer was for more money than the Consumer actually got when his own offer was accepted. The trial court ruled that § 998’s cost-shifting rule does not apply to a case that is concluded by a settlement, as opposed to a trial, and declined to tax the fees. Manufacturer appealed.

There’s a case on this point from last year. See Madrigal v. Hyundai Motor America, 90 Cal. App. 5th 385 (2023). Over a dissent, it held that § 998(c)(1)’s imposition of fee shifting if the plaintiff “fails to obtain a more favorable judgment or award” applies when the “award” is obtained by plaintiff under a settlement, instead of a judgment. A concurring and dissenting opinion disagreed, reasoning that when parties resolve a case pursuant to a settlement nobody succeeds or fails at anything. A deal is just struck. The Supreme Court granted review of Madrigal last August.** The Court, as it now often does, ruled that pending review, Madrigal could be cited for both its persuasive value and for the existence of a conflict in the Court of Appeal under the Auto Equity Sales rule.

The Court here agrees with the Madrigal majority, finding that “a plain reading of section 998, subdivision (c)(1) compels the conclusion that it applies to any litigation that terminates with the plaintiff getting less than he would have if he had accepted the defendant’s earlier section 998 offer.” The Court goes through a number of policy rationales and rejects the Consumer’s assertion that applying § 998 to a case that ends in a settlement itself discourages settlement. Perhaps the most convincing point the court makes is that a settling party that doesn’t want to be subject to fee shifting based on a prior § 998 offer is always free to demand that fee shifting be excluded from the terms of any settlement.

Justice Viramontes concurs and dissents.

He largely agrees with the concurrence and dissent in Madrigal. He thinks, at minimum, that the majority’s “plain reading” of § 998(c)(1) is not dispositive because it is susceptible to a construction based on the idea that a settlement can’t be a failure. “[A]t the very least, the statute’s use of those words calls into question whether a settlement for less than the unaccepted offer equates to a failure to obtain a more favorable judgment under section 998(c)(1).” Looking into the purpose and legislative history animating § 998, he finds that the available evidence, albeit slim, suggests that the statute is intended to apply only when a settlement offer isn’t bested by a subsequent adjudication, not just a later settlement.

Affirmed.

*, ** A week after this case was decided, the Supreme Court issued an opinion in Niedermeier v. FCA, holding that trade in value does not merit a deduction from Lemon Law damages. Entering a settlement based on assumptions about the law that subsequently change, however, does not generally invalidate the settlement. Of course, review has also been granted in Madrigal. Plaintiff here can likely get a grant-and-hold based on that and if Madrigal is reversed, Plaintiff can likely get a reversal of the ruling on § 998 fee shifting. But it is still really doubtful that he could blow up the whole settlement based on incorrect assumptions of pre-Niedermeier law. 

Paper Record Still Merits Deference on Appeal of Factual Findings

Jones v. Solgen Construction, LLC, No. F085918 (D5 Feb. 26, 2024).

A shady Solar Seller claims to have sold a rooftop solar setup to an 81-year-old Lady in Fresno. Lady lives on $1,000 per month in social security, but apparently agreed to take out a $52k, 25-year loan from Lender, Solar Seller’s financing partner. Lady sued, claiming fraud and other related stuff. The loan documents included an arbitration clause. Lender and Solar Seller moved to compel arbitration.

The parties’ versions of the relevant events are, to say the least, hotly in dispute. Lady says she thought she was entering a government program that was supposed to cap her electric bills in exchange for putting some solar panels on her roof. She never would have agreed to a long term loan that would not be paid off till she was 106. Lady didn’t recall signing a contract, and certainly not a contract containing those terms. Solar Seller and Lender say that Lady DocuSigned a loan agreement and have a video where she (somewhat hesitantly and with a confused affect) acknowledges that. The details of that aren’t really super important, but it should suffice to say that there was evidence upon which the court could probably have gone either way.

One piece of that evidence is the DocuSigned contract. Solar Seller made a somewhat inscrutable hearsay objection to it. Not for the contract itself. After all, if not admitted, the lack of a contract pretty much precludes an arbitration argument. But for a stamp on the DocuSign certificate that showed Lady reviewed the 21-page contract for a whopping 38 seconds before she allegedly e-signed it. 

But Lender had put in a declaration establishing business records foundation under Evidence Code § 1271. The declaration did a good job of establishing why the DocuSign process was a reliable and trustworthy way to generate business records. That being the case, there was no error in considering the time stamps.

Solar Seller also says that the trial court erroneously refused to consider a customer service recording between Lady and a customer service rep, which it submitted in connection with its reply brief. But the record doesn’t actually substantiate that is what happened. The trial judge asked why the recording was submitted on reply. Solar Seller gave an answer. Then the discussion moved on. Nowhere does the record reflect that the court refused to consider the recording. And the fact that the court didn’t expressly refer to it in its written ruling doesn’t change that fact. The appellant bears the burden of coming forward with a record of error. Silence merits a presumption that the trial court was correct.

Finally, the big issue is whether the court correctly found by a preponderance of the evidence that there was no binding agreement to arbitrate. Again, the substance of this debate is too fact-specific to be interesting. But there is an interesting debate about the standard of review. 

A finding of fact is typically reviewed for substantial evidence. But specific to this context, the weight of the authority treats an appeal of a finding that a party failed to meet its burden of proof like an appeal of a denial of a plaintiff’s JNOV. That is, was the plaintiff’s evidence so overwhelming that any reasonable trier of fact would find in its favor, and thus that the court was required to find that it met its burden as a matter of law? If that’s the standard, the question here isn’t too hard, because the Solar Seller and Lender’s evidence isn’t that good.

But there are some cases that suggest that when the record before the trial court was entirely written—as it was here—an appellate court can re-weigh the evidence de novo. See Patterson v. ITT Consumer Financial Corp., 14 Cal. App. 4th 1659, 1663 (1993); Milazo v. Gulf Ins. Co., 224 Cal. App. 3d 1528, 1534 (1990). The theory is that, on a paper record, an appellate court is equally well situated to find the facts. 

But the Court here does a good job of unspooling that those cases are not reasoned and authority they rely upon does not actually support the stated proposition. They instead stand for the much less sweeping point that an appellate court is equally well situated to interpret the language of a contract when no parol evidence is at play. That is the kind of mistake that appellate courts sometimes make, and I have complained about it previously. So kudos to the Court here for digging in. And in any event, the Supreme Court has repeatedly held that a deferential standard of review applies to a trial court’s fact-finding, regardless of whether it is based on oral testimony or a written record.

That being the case, the evidence was no so overpowering that the existence of an agreement was established as a matter of law.

Affirmed.

Pay Those Jury Fees!

Tricoast Builders v. Fonnegra, No. S273368 (Cal. Feb. 26, 2024)

The State Constitution says that a jury trial can be waived only by means proscribed by a statute. In most instances, that statue is Code of Civil Procedure § 631. It lists various ways to waive, including a failure to timely demand a jury and failure to timely post jury fees. It also affords a trial court the discretion to nonetheless permit a jury trial, even if waived, “upon just terms.” § 631(g).

Here, Plaintiff clearly waived. It never demanded a jury or posted fees. But Defendant did, only to expressly waive jury on the day of trial. Plaintiff argues, however, that absent harm to the Plaintiff, it was entitled to have its waiver excused under § 631(g). But—canvassing the authority—the Court finds that prejudice to the opposing party isn’t the only grounds to deny relief from a waiver. In particular, most of the cases that grant relief based on lack of prejudice do so to excuse technical failures that lead to waiver, like posting an incorrect amount of fees. In those cases, the discretion to excuse a waiver is generally broadly exercised. But in other cases—where excuse is sought tardily or for tactical advantage, where the prior waiver was express, and where the party lacked good reason to seek relief—denial of relief has been affirmed.

The facts here aren’t so clear. Plaintiff clearly prepared for a jury trial, because Defendant had heretofore demanded one, and up to the trial date, that was everyone expectation. So the timing of its belated request for an excuse wasn’t the kind of gamesmanship that usually merits denial of relief. The Supreme Court finds the record unclear, and, as we shall see, finds other grounds to affirm anyway. But it offers some dicta for the benefit of litigants in similar situations.

1. Each side is required to make its own jury demand and to timely post fees. Nothing stops a party that complied with that requirement, when the other side didn’t, from dropping its demand in the eve of trial.

2. But when that happens, the other side can seek excuse under § 631(g).

3. In considering that request, the court can consider the circumstances of the belated waiver by the demanding party, such as whether it was tactical, potential unfairness to the non-demanding party, who went to the trouble of preparing for a jury trial, and whether the non-demanding party could have protected its options by posting its own fees.

Regardless, an erroneous denial of § 631(g) isn’t structural error, like the wrongful denial of a jury, properly demanded. There is a difference between the erroneous denial of a jury and the erroneous denial of a relief from waiver. The State Constitution, after all, does recognize that a jury trial can be waived. And given that a denial of relief from waiver is not structural error, under article VI, section 13 of the Constitution, an appellant must show prejudice resulting from the error to obtain a reversal. Which Plaintiff here can’t do. The court notes that a party wrongfully denied a jury (including a wrongfully denied request for relief under § 631(g)) has recourse to a writ. Indeed, state courts have been historically willing to take up writs on that ground, even though writ review is discretionary. 

Court of Appeal affirmed. 

This all makes basic sense. But there is a clear, unspoken upshot of the prejudice requirement. 

If relief from waiver § 631(g) is denied, and it matters to you, you must take a writ. Post-judgment proof of prejudice in these circumstances is essentially impossible, as it requires an attack on one of the most basic collective assumptions that our judicial system relies on to maintain its legitimacy—that juries can’t be hoodwinked. Given that assumptions, you can basically never establish, ex post, that a case would have had a different result but for it had been tried to a jury instead of a judge. The system fundamentally cannot accept the argument that “if only I got a chance to bamboozle 9 out of 12 ordinary citizens, instead of that cynical trial judge, I would have won.” And in any event, the counterfactual is basically unprovable. What are you going to do, interview a bunch of imaginary jurors who were never actually called an put in their affidavits under Evidence Code § 1150?

You can, of course, say in an appeal that a trial judge who denied relief under § 631(g) also screwed up the facts or the law, or was unfairly biased, or raise any other error under the applicable standard of review. But if that’s what happened that is the grounds for appeal, not denial of the relief from waiver of a jury trial. 

Justice Kruger is certainly smart enough to know this. Which means the issue is likely to never reach the Court again for lack of provable prejudice. Hence the dicta.

In Search of Administrative Finality

Jackson v. Board of Civil Service Comm’rs of the City of L.A., No. B328414 (D2d7 Feb. 8, 2024)

This one is pretty deep into the weeds in the intersection of administrative law and appellate jurisdiction. But since I have a case before the Supreme Court in that same neighborhood, it’s interesting to me, at least.

Petitioner is an LAPD Officer who got disciplined for being late to a shift under what sound like some not so great circumstances. He was suspended from duty for 10 days. He challenged the suspension administratively, and when he lost, filed an administrative appeal, which he also lost. 

Officer filed a petition for writ of administrative mandate in LA Superior, raising sufficiency of the evidence and due process issues regarding the administrative process because LAPD’s justification for the discipline apparently evolved over the course of the administrative hearings. The superior court found that the evidence supported three of the four charges but that the administrative process had failed in some respects to appropriately account for Petitioner’s due process rights as a public employee. It remanded to the administrative system to address that issue. Petitioner appealed.

A threshold question on appeal is whether the trial court’s remand to the administrative process counts as a “final judgment” that can be appealed under Code of Civil Procedure § 904.1(a). That would seem to be an easy question because there’s a 2017 Supreme Court decision that held that a judgment that remands to the agency is sufficiently final to be appealable. Dhillon v. John Muir Health, 2 Cal. 5th 1109 (2017). But the Court here finds Dhillon to be distinguishable. 

As the Court sees it, Dhillon found finality for two reasons. First, in Dhillon, the superior court’s remand decided everything before it. It didn’t reserve any issues for itself during the remand. That’s true here as well.

But Dhillon’s second basis for finding finality had to do with the particular procedural posture of that case. There, a hospital’s administrative review board was reviewing the discipline of a physician. The review board determined that the physician was not entitled to receive a hearing. On a writ of administrative mandate, the superior court disagreed and remanded for the hearing to be held. In that case, the Supreme Court explained, if the remand order weren’t appealable, the hospital would have no avenue to review the superior court’s order that a hearing was required. 

The Court here finds that to be a distinguishing factor. Here, following the remand, the Officer will be able to file a new or renewed writ petition, and, should that be decided against him, appeal any adverse ruling subsumed into a post-remand judgment. See generally Code of Civ. Proc. § 906 (appeal of final judgment permits review of any intermediate ruling, provided that ruling substantially affected the appellant’s rights). That includes issues affirmed by the superior court on this petition. The Court relies on a pre-Dhillon Court of Appeal opinion—Kumar v. National Medical Enterprises, Inc. (1990) 218 Cal. App. 3d 1050—that makes that very point. As the Court notes, although there is some superficial tension, the Supreme Court distinguished Kumar on the same ground the Court here is distinguishing Dhillon. In this case and in Kumar, the petitioner whose case is administratively remanded will ultimately have an opportunity to appeal anything adversely decided.

The Court finds all this to be consistent with federal practice, which, although not identical to California’s, nonetheless applies analogous principles in assessing the finality of administrative action for appeal. In doing so, the Court notes that in this context, the agency sometimes has the right to appeal a remand order, but the affected individual, almost never does.

Finally, although the Court has the discretion to treat a premature appeal as a writ petition, it declines to do so here. This is not a case of great public interest. It is, instead, a largely fact-bound question regarding the manner in which the Officer was disciplined. So the Officer needs to wait for a ripe appeal.

Appeal dismissed.

A Claim Is a Claim Is a Claim

Miszkewycz v. County of Placer, No. C095426 (D3 Jan. 25, 2024)

As we discussed last summer, there’s a developing split of authority over what a defendant bringing an anti-SLAPP motion needs to do to raise an argument (perhaps in the alternative) that a “claim”—a distinct theory of liability— arises from protected liability, even if the whole case doesn’t. Some call that a Bonni argument, based on the Supreme Court case that laid out how it works, procedurally. Park v. Nazari said to make a Bonni argument, the moving party needs to identify “in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim.” My take was that Park essentially required the moving party to follow Rule of Court 3.1322, which demands that the notice of motion for a traditional motion to strike needs to identify, line by line and word by word, the precise material the movant wants stricken.

But now the Court of Appeal says it’s not necessary to follow Rule 3.1322. The Court notes that, although Bonni analogized an anti-SLAPP to a traditional motion to strike, nowhere did the Supreme Court suggest that the similarity required compliance with Rule 3.1322. Moreover, some of the the text of 3.1322, including references to the timing in which a motion to strike must be brought, clearly apply to a traditional motion to strike, not an anti-SLAPP. So Rule 3.1322 does not apply to anti-SLAPP motions. 

Here, the moving defendant’s brief explained that the complaint at issue presented two theories of liability and argued that one of them arose from protected activity. That’s all that defendant needed to do to make a Bonni argument. So the trial court erred.

The Court goes on, in an unpublished part of opinion to nonetheless affirm the denial of the motion on the merits.

Affirmed.

I think the court gets it right here. The antecedent of Rule 3.1322—old Rule 329—was enacted in 1984. It pre-dates the anti-SLAPP statute by a decade and a half. If the Legislature or the Judicial Council wanted Rule 3.1322 to apply to anti-SLAPP motions, they have had twenty years to say so.

That said, cases like this one say you can satisfy Bonni with an explanation of a “claim” in your brief, while others say you need to identify specific paragraphs or sentences, even if they don’t formally demand compliance with Rule 3.1322. Until the Supreme Court weighs in on this issue, we’re in an Auto Equity situation where there is no way to predict what rule a trial court will apply. That being the case, safest bet is to do both.

Experts, Standards of Review, and Meta-Evidence

Garner v. BNSF Railway Co., No. D082229 (D4d1 Jan. 4., 2024)

This is a wrongful death case where decedent’s family claims that exposure to diesel exhaust while working as a railroadman caused the non-Hodgkin’s lymphoma that lead to his death. In the run-up to trial, the Company moved in limine to exclude Plaintiff’s general causation experts for failing to satisfy the Sargon standard.

Plaintiffs put up three experts on this point. Generalizing a bit, each testified that diesel exhaust was an established cause of cancer. They pointed to, among other things, epidemiological studies that showed that the exposure could lead to three to four thousand excess cancers per million people, which is clearly significant. But that was cancer in general. None of the experts, however, pointed to any study that linked non-Hodgkins lymphoma, in particular, to diesel exhaust, or that suggested a dosing that could merit causation. But they testified that, more generally, the mutagenic way diesel exhaust acts on human issue merits a conclusion that it can cause cancers that were no just limited to one specific organ. 

The Company pointed out these apparent gaps in the analysis. But it didn’t provide evidence of its own that experts’ reasoning or methodologies were scientifically unsound.

After tentatively accepting the opinions of Plaintiff’s experts, the trial court ultimately excluded them. It found that the gap between the underlying epidemiological evidence and the ultimate conclusions as to general causation was too broad to be bridged by the experts’ opinions. And without the experts, there was no evidence of causation, and thus the case could not go to trial. Plaintiff appealed.

Before getting to the evidentiary issue, the Court of Appeal discusses the standard of review. It recognizes that rulings on evidence, and the admissibility of expert testimony in particular, are generally subject to an abuse of discretion. But, relying on a number of cases, the court says that when an in limine ruling precludes a whole cause of action, it is treated as a nonsuit and reviewed de novo.

But that’s not entirely right. No doubt, the court pulls in language from cases that say, literally, that a motion in limine ruling that excludes all evidence and therefore resolves a whole cause of action is essentially a nonsuit that gets reviewed de novo. But all the cases the court cites deal with circumstances where a trial court decides a legal issue, which then makes all evidence irrelevant and thereby dooms a cause of action. 

The legal issue could be the interpretation of a statute, a contract or case law. It could also be a determination that there’s just not enough evidence to make it to a jury—itself a legal decision that basically a nonsuit. The cases cited all have these kinds of fact patterns. See Kinda v. Carpenter, 247 Cal. App. 4th 1268, 1285 (2016) (on in limine motion, trial court held that evidence was insufficient to get to the jury); McMillin Companies, LLC v. Am. Safety Indem. Co., 233 Cal. App. 4th 518, 529 (2015) (trial court excluded all contrary evidence on a duty issue based on a legal ruling that rendered the evidence irrelevant); Legendary Inv. Grp. No. 1, LLC v. Niemann, 224 Cal. App. 4th 1407, 1411 (2014) (similar); City of Livermore v. Baca, 205 Cal. App. 4th 1460, 1465 (2012) (exclusion of all evidence on the ground that the plaintiff's theory of liability was fatally defective); Dillingham-Ray Wilson v. City of L.A., 182 Cal. App. 4th 1396, 1401 (2010) (trial court interpreted contract as a matter of law and found that interpretation made evidence irrelevant and thus inadmissible); Fergus v. Songer, 150 Cal. App. 4th 552, 570 (2007) (trial court determined that, as a matter of law, attorney fee agreement was voidable and thus that evidence of damages based on it could not go to the jury). But the standard of review in these cases is de novo because the trial courts are fundamentally deciding questions of law, which always get reviewed de novo.

That, however, not the same thing as when a trial court makes an evidentiary ruling that makes certain evidence inadmissible, which then potentially has the consequence that the plaintiff can’t get to a jury. The ultimate significance of a pretrial ruling on a question of the admissibility of evidence should not change the standard of review. Notably, the court doesn’t cite any cases applying de novo review to the exclusion of a causation expert, even when that exclusion is potentially case dispositive. (This recent one, for instance, certainly didn’t.) 

If the evidentiary question is one normally one which is reviewed for an abuse of discretion—a classic example of which is the admissibility of expert testimony, see Sargon Enterprises v. University of Southern California, 55 Cal.4th 747, 773 (2012)—it should be reviewed under that standard, consequences be damned. Then, whether whatever is left is enough to get to a jury is a legal and that question should get reviewed de novo. But reviewing discretionary decisions de novo just because a plaintiff might lose as a result puts a thumb on the scale in favor of a plaintiff because, especially in cases of causation, excluding expert testimony on causation issues is usually case dispositive, but admitting it is generally not. It is completely arbitrary and nonsensical for a standard of review to change based on whether the trial court’s decision was to admit vs. to exclude. The standard of review should turn on the nature of the decision, not its consequence.

(FWIW, I just realized I digressed at length on this point in a post nearly eight years ago. While my memory is imperfect, my point stands nonetheless.)

In any event, moving on to the evidentiary question, the Court of Appeal drills down to the issue of the kind of inference a scientific expert can permissibly draw from underlying source material. As noted, these experts, relying on evidence of increased carcinogenicity in general, concluded that diesel exhaust could cause the specific kind of cancer that killed the decedent. They supported that conclusion with some more testimony explaining why that was a permissible inference, in their fields of expertise, to draw. Like that the kind of pathology caused by exposure to diesel exhaust—mutagenic damage to cellular level DNA—made it reasonable to conclude that the exposure could cause a bunch of different types of cancer. 

So the Court of Appeal concludes that in the absence of any evidence submitted by the Company establishing that that kind of conclusion was an inappropriate one for an epidemiologist to draw from the underlying data, the trial court abused its discretion in excluding the testimony because the inferential gap was too wide.

This is, admittedly, a hard epistemic task. As David Hume explained a couple hundred years ago in An Enquiry Concerning Human Understanding, you can never definitively prove the answer to a question of causation. All you can really do is observe a set of correlations that are significantly close from which an inference of causation can be drawn. So here, the Sargon question is how close does epidemiological statistical data—itself an observation of correlation—need to be to make a methodologically sound inference that a relationship is causal. And even more specifically, what kind of evidence (or law) validates the soundness of that inference.  

Some more extreme facts can illustrate the question. On one hand, say an expert relies on a study of a large population is exposed to some agent in a specific and measurable way. All or nearly all of them develop some rare disease that is almost never seen in the pubic at large. And there’s nothing else about the exposed group that otherwise meaningfully differs from the public. In that case, provided the methods in which the data were collected were sound, the gap between that data and the inference of a causal relationship between the exposure and the plaintiff’s disease isn’t very big at all.

On the opposite end, say the study of a small population correlates exposure a number of different outcomes, which also occur almost as frequently in the unexposed population, the sample was taken from a population that is atypical in some way, and the plaintiff suffers an outcome that is not among the ones measured in the sample. There, the gap between the data and a conclusion of causation is clearly too wide to stand. The fact that a couple of lactose intolerant people get a tummy aches from eating dairy does not justify an inference that ice cream causes pancreatic cancer.

Easy cases like these at the outer limits can likely be resolved as a matter of law or undisputed fact by well-informed judicial common sense. But there is obviously a wide field of grey area in between. And there, the question of “is this a reasonable inference to draw?” seems itself to be a factual question that could itself be a potential subject of expert opinion: Do professionals in the relevant field, employing appropriate methodologies, and outside of litigation, think that, data A rationally merits the more likely than not inference of a causal relationship?

Those situations can turn on a kind of meta-evidence. That is, evidence that, while potentially irrelevant to the merits, goes to a question of whether other evidence is even admissible. Here, that was, to some degree provided by Plaintiff. Its experts testified why it was reasonable to infer causation of non-Hodgkin’s lymphoma from general cancer data concerning exposures to diesel exhaust. On the other hand, the Company didn’t put in anything to the contrary. So that resolves the appeal.

But what if the Company put in evidence that in the practices in field of epidemiology, the inference drawn by Plaintiff’s expert wasn’t a reasonable one to draw? In that case, it seems to me, under Evidence Code §§ 403 and 405(a), as a condition to admitting the testimony, the trial court would be obliged to decide whether, as a matter of fact, a preponderance of the evidence established that the inference was justifiable or the gap was to big. A trial court should not be able to engage in another round of meta-punting on the basis that that question too is a subject of debate within the field.

Reversed.

Separate Statement Smackdown

Beltran v. Hard Rock Hotel Licensing, No. G062736 (D4d3 Dec. 5, 2023)

Five years ago, my partner David Klein and I had an article in Los Angeles Lawyer called “Crafting Separate Statements in Motions for Summary Judgment.” The gist of the article was that there was a widespread misunderstanding about what facts and at what level of generality should go into the separate statement required under Rule of Court 3.1350(d). That document calls only for material facts, which basically means the facts, stated in a case-specific action, that make up the elements of the cause of action. So for any given cause of action, depending on the moving party, there could be as few as one at most a handful of facts that are truly material to an SJ motion. But in practice, that is not the way most separate statements are put together. Typically, the tend to be bloated useless documents stuffed to the gills with scores or even hundreds of purportedly “undisputed material facts.”

Other than the associates I have harangued on this point over the years, I don’t know if anyone ever read that article. (And maybe not even those associates...) I can’t link to it, although it is on Westlaw somewhere. (41-DEC L.A. Law. Rev. 14.) 

In any event, the Court in this FEHA sexual harassment case makes the same point. It identifies “the deeply problematic misuse of the separate statement of material facts by all parties and how separate statements can be brought into compliance with existing law.”

I’m not usually a block quote guy, but the court’s full analysis is worth a read:

Defendants filed three separate statements of undisputed material facts (separate statement or statements) in support of each of the three motions for summary judgment filed in this case. Each separate statement includes over 600 paragraphs of purportedly “material facts” and runs over 100 pages. After reviewing the Defendants’ separate statements and Beltran’s responses to them, as well as recent separate statements in other recent cases before us, we can only conclude that a document that was intended to be helpful to the court and provide due process to the parties (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210) is, in many cases, no longer serving either purpose. We write on this issue to remind both litigants and trial courts about the appropriate scope of the separate statement.

Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Italics added.) California Rules of Court, rule 3.1350(d)(2) states: “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” Under the Rules of Court, “‘Material facts’ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Rule 3.1350(a)(2).)

What neither the rule nor the statute states is that the moving party must include in the separate statement every fact they intend to include in their motion, regardless of its materiality. For example, HRH’s very first “material fact” in its separate statement is: “The Hard Rock brand is known worldwide for its connection to music, fashion, and entertainment.” Under no interpretation of “material” does this qualify – it is merely background information that has no relevance to any cause of action or defense.

This is far from the only paragraph in the three separate statements that make absolutely no difference in the disposition of the motion. The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an affirmative defense. (See Code Civ. Proc., § 437c, subd. (b)(1); rule 3.1350(a)(2), (d)(2).) The statute and Rules of Court do not preclude litigants from including background, nonmaterial information in their papers as long as they include a cite to the evidence, but nonmaterial facts should not be included in the separate statement. The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) There is nothing convenient or expeditious about the separate statements submitted in this case.

The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists. For example, HRH’s separate statement included paragraph 14: “When Shepherd began working at the Hotel, Plaintiff Stephanie Beltran (“Plaintiff’) worked as a server in different parts of the Hotel, but primarily in the Hotel’s nightclub called the ‘Club.’” Beltran claimed this benign and indisputable fact was disputed: “Disputed. Although Plaintiff was already working at Hard Rock when Defendant Shepherd was hired, Plaintiff’s hire date was on or around February 10, 2017, as that’s when her Labor Code § 2810.5 Notice was filled out.” This response did not, in fact, dispute HRH’s statement, and the response should have been “undisputed.” If Beltran’s hire date was a material fact (and we do not see why it was – at best, it was background information) it should be listed under the opposing party’s additional facts with supporting evidence. The quoted paragraph is far from the only example of this problem in Beltran’s responses.

As we mentioned, one of the purposes of the Separate Statement is “to permit the trial court to focus on whether [the material] facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1210.) This can only be accomplished by both parties preparing the Separate Statement according to the statute and Rules of Court and acting in good faith. The moving party must include only material statements of fact, not incidental and background facts. The opposing party must concede facts that are truly undisputed and only add facts that are material. It is difficult to conceive of a properly drafted Separate Statement that includes over 600 paragraphs of undisputed material facts.

Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement – and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. Courts should also not hesitate to disregard attempts to game the system by the opposing party claiming facts are “disputed” when the uncontroverted evidence clearly shows otherwise.

(Emphases original, footnotes omitted).

Reversed.

To Stay or Not to Stay

Mattson Technology, Inc. v. Applied Materials, Inc., No. A165378 (D1d5, as modified Nov. 20, 2023)

Plaintiff and Defendant both make machines that are used make to semiconductor chips. Defendant hired Engineer, who has previously been employed by Plaintiff for a long time. Defendant similarly poached a bunch of other employees from Plaintiff. This is California, so there’s nothing, in itself, wrong about that.

But a bunch of the poached employees wiped their work phones shortly before their departure and lied about where they were going in their exit interviews. That’s kind of suspicious. And Engineer did them one better. Shortly before leaving, he accessed Plaintiff’s cloud-based data storage system and emailed more than a dozen emails to his personal email accounts, attaching highly sensitive Plaintiff company documents unrelated to Engineer’s work. In the world of trade secrets litigation, that’s pretty much a smoking gun.

So Plaintiff sued Defendant and Engineer in state court. It sought and obtained a preliminary injunction barring Defendant from using Plaintiff’s trade secrets. Defendant and Engineer than moved to compel arbitration based on an arbitration clause in Engineer’s employment agreement. The trial court granted as to Engineer, but denied as to defendant, on the grounds that it was a non-signatory. The court further declined to stay the litigation between Plaintiff and Defendant while the Plaintiff/Engineer arbitration was litigated. Defendant appealed.

There are three issues: (1) not compelling the claim against Defendant to arbitration; (2) the PI; and (3) the denial of the stay pending arbitration. The first two are pretty easy.

Defendant tried to hitch onto Engineer’s arbitration clause based on equitable estoppel. The basic point of equitable estoppel in the context of arbitration is that if you sue someone on claim that is inextricably bound up with a contract that includes an arbitration clause, that person gets to rely on the clause even if they aren’t a signatory to the contract. As the Court explains, “As a matter of fairness, when a party to a contract seeks to hold a non-signatory defendant liable for obligations imposed by the contract, the party cannot evade an arbitration clause in the contract simply because the defendant is a non-signatory.” 

But that’s not what is going on here. Plaintiff doesn’t assert that Defendant owed it some duty under Engineer’s employment agreement. It instead claims that Defendant misappropriated its trade secrets, which is a breach of statutory obligation that exists outside of any contract. The fact that the arbitration agreement would have included that claim, had Defendant been a signatory, is not enough to give rise to equitable estoppel. Nor is the fact that Defendant allegedly conspired with Engineer, a signatory, in carrying out the misappropriation. 

The PI is even more clear cut. There was credible evidence that Engineer sent some of the material to Defendant after he got hired. Defendant had no right to use that information. The equities are clearly on the side of Plaintiff. And the Trade Secrets Act specifically authorizes courts to enjoin “actual or threatened” misappropriation. Civil Code § 3426.2. Probably the better argument to make would have been that the injunction did not do enough to discern use of Plaintiff’s info from perfectly innocent activity that relied on Defendants own sources of knowledge. That’s almost always a difficult issue in granting an injunction in a trade secrets case. But Defendant doesn’t appear to have raised that issue in trial court, so it’s forfeited.

The third issue, however, is tricky. The Court reads Code of Civil Procedure § 1281.4 to require a stay of related litigation, even against different non-signatory parties, when an action with overlapping issues is compelled to arbitration. It does so because § 1281.4 uses the word “shall.” And the Court cites some cases that basically stand for those points. Heritage Provider Network, Inc. v. Superior Court, 158 Cal. App. 4th 1146, 1152 (2008); Cardiff Equities, Inc. v. Superior Court, 166 Cal. App. 4th 1541, 1551 (2008).

But a recent Court of Appeal case explains that the mandatory stay under § 1281.4 applies only to the “controversy”—the actual claims between the parties to the arbitration agreement that have been sent to arbitration. See Leenay v. Superior Court, 81 Cal. App. 5th 553, 564–65 (2022) (“[S]ection 1281.4 authorizes a stay only if a court has ordered arbitration of a question between the parties to an agreement, and the same question and the same parties are involved in the pending action.”). Leenay explains, quite convincingly, that the point of § 1281.4 is to stay the actual claims that are being arbitrated, not overlapping claims against different parties. A different statute, § 1281.2(c)(1), is addressed to that issue. Unlike § 1281.4, § 1281.2 affords the court wide discretion to address how to handle overlapping claims of additional parties that aren’t required to arbitrate. Options listed in the statute include: Refusing arbitration altogether, ordering full or partial intervention, ordering arbitration and staying the litigation, and staying arbitration until the litigation is done. If § 1281.4 applies to more than just the matter being arbitrated the contrary discretion afforded under § 1281.2 is surplusage. 

Notably Leenay tried to distinguish Heritage based on some procedural differences, but the logic of Leenay is not really reconcilable with the way these other cases read § 1281.4.

So there is a pretty clean split on this issue, although the parties’ apparent failure to flag it probably precludes review.

Reversed in part.