Weinstein v. Blumberg, No. B282267 (D2d1 Jul. 17, 2018)
Unlike in federal court and many other jurisdictions, the Civil Discovery Act sets strict time limits for parties to move to compel further discovery responses, although they can be extended by stipulation. For depos, it’s 60 days from the completion of the record. Code Civ. Proc. § 2025.480(b). When there’s an actual deposition, that starts on the day the depo is taken.
The parties here—the defendant and a third party it subpoenaed—agreed to extend the due date to a date certain. On the stipulated date, Defendant filed a notice of motion and motion to compel along with a declaration that it had met and conferred. But it didn’t file a brief or supporting papers. It said the remaining papers would be “filed and served as provided in” Code of Civil Procedure § 1005(b), i.e. 16 court days before the hearing. Defendant proceeded to serve all the other docs a day late. So third party, now appellant, argues that: (1) the movant blew the 60-day limit because it failed to serve all the papers on time; and (2) it also blew the 16-court day limit in § 1005(b).
Section 2025.480 says a motion needs to be “made” by the 60-day deadline. Cases have read that deadline to be quasi-jurisdictional, in the sense that the Court doesn’t have the authority to grant a motion filed afterwards. And while § 1005.5 says a motion is “made” when the notice of motion is filed and served, § 1010 says that the notice must be accompanied by the supporting papers.
So reading it all together, without service of all the ancillary docs required under § 1010, the motion wasn’t “made” on time and therefore was untimely under § 2025.480.
Reversed.
Showing posts with label 1005. Show all posts
Showing posts with label 1005. Show all posts
Thursday, September 20, 2018
Tuesday, May 24, 2016
Doctor, this One Was Clearly You
Espejo v. S. Cal. Permanente Med. Grp., No. B262717 (D2d4 Apr. 22, 2016)
In an employment dispute between a doctor and a hospital group, Hospital petitioned to compel arbitration based on an arb clause in Doctor’s employment contract. The arbitration question comes down to whether Doctor actually executed the agreement.
A declaration in support of Hospital’s original petition to compel attached the agreements containing the arb clause. The declaration said that Doctor had been sent hyperlinks to the agreements and required to sign them electronically. It was, however, rather vague about they way this process worked. But then—in response to the recently issued decision in Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal. App. 4th 869 (2014), which addressed how to authenticate electronic signatures under Civil Code § 1633.7—the Hospital submitted a supplemental declaration providing additional detail on the mechanics of the e-signature process. The supplemental declaration was filed several days before Doctor’s opposition was filed.
Doctor challenged the petition with his own declaration that somewhat disputed the merits. He also moved to strike the supplemental declaration as untimely under Code of Civil Procedure § 1005(b), which requires motion papers to be filed sixteen court days before the hearing. The court agreed and struck the declaration. Then, relying on Ruiz, it found that the Hospital failed to sufficiently authenticate the e-signed arb contract, and denied the petition for lack of a binding agreement. Hospital appealed.
Hospital more or less concedes that its initial declaration doesn’t satisfy the Ruiz standard. So the whole appeal basically comes down to whether it was proper to strike of the supplemental declaration. There are two potential arguments for why it was error for the trial court to do so.
The easy one is that the declaration was a response to the post-motion-filing decision in Ruiz. Particularly since the trial court relied on Ruiz to deny the motion, it was only fair to permit Hospital to respond to new authority on a relatively first impression issue. Perhaps the trial court should have kicked the hearing and given everyone a little more time to address Ruiz. For some inexplicable reason, however, the Hospital never made the argument in its AOB. So it was forfeited on appeal.
The other argument deals with who bears the burden on authentication. If Hospital didn’t bear the burden to authenticate the e-signed docs in the first instance, doing so as an offer of proof on reply in response to an objection from Doctor would have been sufficient. And if it would have been fine to do it on reply, it follows that a supplemental filing provided before the opp even came in might have been early, but it clearly wasn’t too late.
So far as the burden goes, petitions to compel are a little different than ordinary motions. Some cases, based on § 1281.2 of the Code of Civil Procedure and Rule of Court 3.1330, hold that to petition to compel, you just need to come forward with a copy of the agreement. There’s no evidentiary obligation to authenticate the agreement from the outset. Even though, if challenged, the petitioner bears the ultimate burden. Under these cases, Hospital didn’t bear the burden to authenticate the contract in its opening papers. So the court erred in striking the supplemental declaration.
The court goes on to file that the supplemental declaration would have been enough to verify the e-signed agreement. The agreement in Ruiz didn’t make the cut because the moving party failed to come forward with any evidence that the signing of the agreement could be attributed to any volitional act by Mr. Ruiz. But here, the supplemental declaration showed that Doctor needed to sign in to a password-protected site. There was thus ample evidence that the arbitration contract was, in fact, e-signed by the Doctor himself and not by some other person.
Reversed.
In an employment dispute between a doctor and a hospital group, Hospital petitioned to compel arbitration based on an arb clause in Doctor’s employment contract. The arbitration question comes down to whether Doctor actually executed the agreement.
A declaration in support of Hospital’s original petition to compel attached the agreements containing the arb clause. The declaration said that Doctor had been sent hyperlinks to the agreements and required to sign them electronically. It was, however, rather vague about they way this process worked. But then—in response to the recently issued decision in Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal. App. 4th 869 (2014), which addressed how to authenticate electronic signatures under Civil Code § 1633.7—the Hospital submitted a supplemental declaration providing additional detail on the mechanics of the e-signature process. The supplemental declaration was filed several days before Doctor’s opposition was filed.
Doctor challenged the petition with his own declaration that somewhat disputed the merits. He also moved to strike the supplemental declaration as untimely under Code of Civil Procedure § 1005(b), which requires motion papers to be filed sixteen court days before the hearing. The court agreed and struck the declaration. Then, relying on Ruiz, it found that the Hospital failed to sufficiently authenticate the e-signed arb contract, and denied the petition for lack of a binding agreement. Hospital appealed.
Hospital more or less concedes that its initial declaration doesn’t satisfy the Ruiz standard. So the whole appeal basically comes down to whether it was proper to strike of the supplemental declaration. There are two potential arguments for why it was error for the trial court to do so.
The easy one is that the declaration was a response to the post-motion-filing decision in Ruiz. Particularly since the trial court relied on Ruiz to deny the motion, it was only fair to permit Hospital to respond to new authority on a relatively first impression issue. Perhaps the trial court should have kicked the hearing and given everyone a little more time to address Ruiz. For some inexplicable reason, however, the Hospital never made the argument in its AOB. So it was forfeited on appeal.
The other argument deals with who bears the burden on authentication. If Hospital didn’t bear the burden to authenticate the e-signed docs in the first instance, doing so as an offer of proof on reply in response to an objection from Doctor would have been sufficient. And if it would have been fine to do it on reply, it follows that a supplemental filing provided before the opp even came in might have been early, but it clearly wasn’t too late.
So far as the burden goes, petitions to compel are a little different than ordinary motions. Some cases, based on § 1281.2 of the Code of Civil Procedure and Rule of Court 3.1330, hold that to petition to compel, you just need to come forward with a copy of the agreement. There’s no evidentiary obligation to authenticate the agreement from the outset. Even though, if challenged, the petitioner bears the ultimate burden. Under these cases, Hospital didn’t bear the burden to authenticate the contract in its opening papers. So the court erred in striking the supplemental declaration.
The court goes on to file that the supplemental declaration would have been enough to verify the e-signed agreement. The agreement in Ruiz didn’t make the cut because the moving party failed to come forward with any evidence that the signing of the agreement could be attributed to any volitional act by Mr. Ruiz. But here, the supplemental declaration showed that Doctor needed to sign in to a password-protected site. There was thus ample evidence that the arbitration contract was, in fact, e-signed by the Doctor himself and not by some other person.
Reversed.
Thursday, March 24, 2016
Lots of Waivers in Divorce Court
Obrecht v. Obrecht, No. H040827 (D6 Feb. 24, 2016)
Husband in a divorce case objects to personal jurisdiction. His problem is that the record seems to establish that during his first appearance in the case he argued (pro se) the merits of a requested support order. He didn’t move to quash for lack of personal jurisdiction until several months later. But an argument on the merits was a general appearance—sufficient to waive any personal jurisdiction objection.
Husband contests what actually happened at the hearing, but none of the hearings in the case were reported due to the court’s policy of not providing an official reporter in most family law matters. (I.e., a policy like the kind of policy under review in Jameson v. Desta. The Court here drops a footnote to express that it is “deeply troubled” by that policy, but no party raised the issue on appeal.) In the absence of a record of oral proceedings, the trial court’s minute order suggesting the merits, not personal jurisdiction, were argued, was dispositive.
Husband also argues that it is unfair to hold him subject to the orders entered prior to the hearing in which he effectively waived any challenge to personal jurisdiction due to retroactivity concerns. But the court isn’t buying it. The cases he's analogizing to deal with service of process. While it might be unfairly retroactive to hold a party to account for actions that occurred prior to being validly served, the same rationale does not apply to actions that occurred before the time in which the party could be deemed to have waived personal jurisdiction. While service has a temporal element—the case doesn't start for a defendant until he is served—PJ doesn’t work that way. Essentially, personal jurisdiction is a yes/no issue that applies throughout the whole case; either there’s jurisdiction over the defendant or there isn’t.
Husband also waived any challenge to whether he had been afforded timely notice of a hearing. The record is pretty clear that he received less than the sixteen days’ notice of a motion required under Code of Civil Procedure § 1005(b). But to challenge a lack of statutory notice, a party generally needs to raise the issue at the earliest opportunity and demonstrate some prejudice. Here, Husband didn’t challenge the short notice. Indeed, at the first hearing he attended--several months after the motion was decided--he didn’t mention it at all.
Affirmed.
Husband in a divorce case objects to personal jurisdiction. His problem is that the record seems to establish that during his first appearance in the case he argued (pro se) the merits of a requested support order. He didn’t move to quash for lack of personal jurisdiction until several months later. But an argument on the merits was a general appearance—sufficient to waive any personal jurisdiction objection.
Husband contests what actually happened at the hearing, but none of the hearings in the case were reported due to the court’s policy of not providing an official reporter in most family law matters. (I.e., a policy like the kind of policy under review in Jameson v. Desta. The Court here drops a footnote to express that it is “deeply troubled” by that policy, but no party raised the issue on appeal.) In the absence of a record of oral proceedings, the trial court’s minute order suggesting the merits, not personal jurisdiction, were argued, was dispositive.
Husband also argues that it is unfair to hold him subject to the orders entered prior to the hearing in which he effectively waived any challenge to personal jurisdiction due to retroactivity concerns. But the court isn’t buying it. The cases he's analogizing to deal with service of process. While it might be unfairly retroactive to hold a party to account for actions that occurred prior to being validly served, the same rationale does not apply to actions that occurred before the time in which the party could be deemed to have waived personal jurisdiction. While service has a temporal element—the case doesn't start for a defendant until he is served—PJ doesn’t work that way. Essentially, personal jurisdiction is a yes/no issue that applies throughout the whole case; either there’s jurisdiction over the defendant or there isn’t.
Husband also waived any challenge to whether he had been afforded timely notice of a hearing. The record is pretty clear that he received less than the sixteen days’ notice of a motion required under Code of Civil Procedure § 1005(b). But to challenge a lack of statutory notice, a party generally needs to raise the issue at the earliest opportunity and demonstrate some prejudice. Here, Husband didn’t challenge the short notice. Indeed, at the first hearing he attended--several months after the motion was decided--he didn’t mention it at all.
Affirmed.
Subscribe to:
Posts (Atom)