Jackpot Harvesting, Inc. v. Applied Underwriters, No. H044953 (D6 Mar. 28, 2019)
Section 632 of the Code of Civil Procedure requires a court to follow a process to create a statement of decision when issuing an appealable order that decides a question of fact. More specifically, § 1291 requires the court to create a statement of decision when it enters an appealable order regarding arbitration. Plaintiff here complains that the trial court didn’t follow the process in denying its motion to compel and therefore that it erred. But the trial court didn’t find any facts―it just interpreted undisputed contractual provisions. Since that’s reviewed de novo, the Court of Appeal holds that the trial court’s somewhat sparse order denying the motion was adequate.
Affirmed.
Showing posts with label 632. Show all posts
Showing posts with label 632. Show all posts
Wednesday, July 3, 2019
Wednesday, January 24, 2018
Lazy Plaintiff Gets the Blues
Noel v. Thrifty Payless, Inc., No. A143026 (D1d4 Dec. 4, 2017)
Plaintiff brought a consumer class action because the picture on the box of an inflatable pool he bought at Rite Aid showed a pool that was bigger than the actual pool in the box, even though the dimensions were correctly listed. Having taken almost no discovery, plaintiff nonetheless moved to certify a class.
To do that, Code of Civil Procedure § 632 specifically requires that the class members must be ascertainable. But in a consumer case, it can be difficult to figure out who purchased a particular retail good. Rite Aid doesn’t take the names and addresses of its customers and keep a list of what they buy. Although with some legwork there’s often ways to figure that kind of thing out. But a plaintiff needs to do that work so it can present the court with a plan with how the class members are going to be identified and notified when he moves to certify a class. Plaintiff didn’t do that here—he barely took any discovery at all—so the court denied his motion. Correctly.
Plaintiff also says the court should have given him a continuance to let him beef up his evidence on ascertainability. But nothing forced Plaintiff to file his certification motion when he did. And he was also free to withdraw and fix his motion at any time prior to the hearing—even after the opposition pointed out the ascertainability issues. So when Plaintiff decided to proceed to the merits of the motion, he took the risk that it would be denied, which it correctly was.
Reversed.
Plaintiff brought a consumer class action because the picture on the box of an inflatable pool he bought at Rite Aid showed a pool that was bigger than the actual pool in the box, even though the dimensions were correctly listed. Having taken almost no discovery, plaintiff nonetheless moved to certify a class.
To do that, Code of Civil Procedure § 632 specifically requires that the class members must be ascertainable. But in a consumer case, it can be difficult to figure out who purchased a particular retail good. Rite Aid doesn’t take the names and addresses of its customers and keep a list of what they buy. Although with some legwork there’s often ways to figure that kind of thing out. But a plaintiff needs to do that work so it can present the court with a plan with how the class members are going to be identified and notified when he moves to certify a class. Plaintiff didn’t do that here—he barely took any discovery at all—so the court denied his motion. Correctly.
Plaintiff also says the court should have given him a continuance to let him beef up his evidence on ascertainability. But nothing forced Plaintiff to file his certification motion when he did. And he was also free to withdraw and fix his motion at any time prior to the hearing—even after the opposition pointed out the ascertainability issues. So when Plaintiff decided to proceed to the merits of the motion, he took the risk that it would be denied, which it correctly was.
Reversed.
Thursday, January 11, 2018
Failure to Issue a Statement of Decision Is Not Structural Error
F.P. v. Monier, No. S216566 (Cal. Nov. 27, 2017)
After a bench trial, and despite a proper request, the court in this case failed to issue a statement of decision under Code of Civil Procedure § 632. Everyone agrees that’s error. The question presented to the Supreme Court in this case, however, is whether it’s a structural error requiring per se reversal, or whether it’s a procedural error that merits reversal only upon proof of prejudice to the appellant. See Code Civ. Proc. § 475; Cal. Const. Art. IV, § 13. The Court of Appeal said prejudice is required. And the Supreme Court agrees.
After reviewing the lengthy history of the amendments to the statute currently codified in § 632, the Court admits its jurisprudence on the topic has been somewhat inconsistent. But particularly given the removal of a mandatory retrial requirement from earlier versions of § 632, the Court holds that proof of prejudice is, in fact, required to merit a reversal for failure to follow § 632. And since the trial record contained evidence sufficient to sustain a ruling in plaintiff’s favor and the trial court did, in fact, rule in favor of the plaintiff, there’s no prejudice her that would permit a reversal for the trail court’s procedural error in failing to follow § 632.
Affirmed.
After a bench trial, and despite a proper request, the court in this case failed to issue a statement of decision under Code of Civil Procedure § 632. Everyone agrees that’s error. The question presented to the Supreme Court in this case, however, is whether it’s a structural error requiring per se reversal, or whether it’s a procedural error that merits reversal only upon proof of prejudice to the appellant. See Code Civ. Proc. § 475; Cal. Const. Art. IV, § 13. The Court of Appeal said prejudice is required. And the Supreme Court agrees.
After reviewing the lengthy history of the amendments to the statute currently codified in § 632, the Court admits its jurisprudence on the topic has been somewhat inconsistent. But particularly given the removal of a mandatory retrial requirement from earlier versions of § 632, the Court holds that proof of prejudice is, in fact, required to merit a reversal for failure to follow § 632. And since the trial record contained evidence sufficient to sustain a ruling in plaintiff’s favor and the trial court did, in fact, rule in favor of the plaintiff, there’s no prejudice her that would permit a reversal for the trail court’s procedural error in failing to follow § 632.
Affirmed.
Friday, May 20, 2016
Just Specific Enough...
Almanor Lakeside Villas Owners Assoc. v. Carson, No. H041030 (D6 Apr. 19, 2016).
This is a dispute between some property owners and their HOA. Which, true to form, means the case looks pretty ugly. The substance is specific to HOA cases, but there is an interesting issue regarding the role of a trial court’s statement of decision in deciding a bench trial.
This is a dispute between some property owners and their HOA. Which, true to form, means the case looks pretty ugly. The substance is specific to HOA cases, but there is an interesting issue regarding the role of a trial court’s statement of decision in deciding a bench trial.
Sunday, November 23, 2014
Be Careful what You Wish for
Kight v. Cashcall, Inc., No. D063363 (D4d1 Nov. 4, 2014)
This case is a class action alleging violations of California’s dual-consent telephone eavesdropping statute, Penal Code § 632. Three years ago, plaintiffs were successful in an appeal wherein the court adopted many if not all of their liability theories. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011). As pertinent here, the prior appeal determined that § 632 applies whenever a caller has a reasonable expectation that a phone call will not be secretly monitored. The test is objective, but it accounts for the totality of the plaintiff’s circumstances.
On remand, Cashcall moved to decertify the class. It argued that the experiences of the plaintiffs in their calls with Cashcall were so varied in the extent of their expectations of monitoring that individual issues would necessarily predominate such that class treatment would be inappropriate. The trial court agreed and decertified the class.
The court of appeal first notes that a decertification shouldn’t just be a redo of the original certification. Some circumstances relevant to management of the class must change before the court can consider decertifying. But the intervening appeal’s clarification of the relevant legal standard provided those circumstances here. And when that standard is considered, the trial court did not abuse its discretion in decertifying the class because individual issues did, in fact, predominate. The illustrative experiences of the individual plaintiffs showed such a wide variety of experiences and expectations that there would be no manageable way to afford class treatment.
Affirmed.
This case is a class action alleging violations of California’s dual-consent telephone eavesdropping statute, Penal Code § 632. Three years ago, plaintiffs were successful in an appeal wherein the court adopted many if not all of their liability theories. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011). As pertinent here, the prior appeal determined that § 632 applies whenever a caller has a reasonable expectation that a phone call will not be secretly monitored. The test is objective, but it accounts for the totality of the plaintiff’s circumstances.
On remand, Cashcall moved to decertify the class. It argued that the experiences of the plaintiffs in their calls with Cashcall were so varied in the extent of their expectations of monitoring that individual issues would necessarily predominate such that class treatment would be inappropriate. The trial court agreed and decertified the class.
The court of appeal first notes that a decertification shouldn’t just be a redo of the original certification. Some circumstances relevant to management of the class must change before the court can consider decertifying. But the intervening appeal’s clarification of the relevant legal standard provided those circumstances here. And when that standard is considered, the trial court did not abuse its discretion in decertifying the class because individual issues did, in fact, predominate. The illustrative experiences of the individual plaintiffs showed such a wide variety of experiences and expectations that there would be no manageable way to afford class treatment.
Affirmed.
Wednesday, February 26, 2014
Thus Ends a Cottage Industry...
Hataishi v. First American Home Buyers Protection Corp., No. B244769 (D2d3 Feb 21, 2014)
The court of appeal affirms the denial of class certification in a case alleging class-wide violations of Penal Code § 632, which prohibits the intentional recording of a “confidential communication” without the consent of all parties to the communication. The ruling is significant, particularly given that Penal Code § 637.2(a)(1) permits $5,000 in statutory damages per recording, the potential class-wide exposure in these cases can be enormous.
Here, plaintiff alleged that, although inbound calls she made to defendant were preceded with the familiar “this call may be recorded” warning, outbound calls that defendant placed to her were not. Under prior case law, the relevant standard is whether the plaintiff had an objectively reasonable expectation that the call was not being recorded, a question of fact, and the defendant’s failure to include a warning is not a violation per se. Instead, prior cases address various factors that go to the reasonableness of the plaintiff’s expectation—whether the call was initiated by the consumer or whether a corporate employee telephoned a customer, the length of the customer-business relationship, the customer’s prior experiences with business communications, and the nature and timing of any recorded disclosures. These factors can potentially vary significantly on a plaintiff-by-plaintiff basis.
For instance, plaintiff in this case testified that she had a five-year relationship with the defendant, she had made at least a dozen inbound calls where she received a warning that the call might be recorded, she had never objected to any recording, and she had participated in “dozens and dozens and dozens” of telephone calls with other companies where she understood her call could be recorded or monitored. Consequently, her objectively reasonable expectations could differ significantly from those of other customers whose calls were recorded without warning. There was thus substantial evidence to support the trial court’s conclusion that a community of interest in common questions was lacking.
Affirmed.
The court of appeal affirms the denial of class certification in a case alleging class-wide violations of Penal Code § 632, which prohibits the intentional recording of a “confidential communication” without the consent of all parties to the communication. The ruling is significant, particularly given that Penal Code § 637.2(a)(1) permits $5,000 in statutory damages per recording, the potential class-wide exposure in these cases can be enormous.
Here, plaintiff alleged that, although inbound calls she made to defendant were preceded with the familiar “this call may be recorded” warning, outbound calls that defendant placed to her were not. Under prior case law, the relevant standard is whether the plaintiff had an objectively reasonable expectation that the call was not being recorded, a question of fact, and the defendant’s failure to include a warning is not a violation per se. Instead, prior cases address various factors that go to the reasonableness of the plaintiff’s expectation—whether the call was initiated by the consumer or whether a corporate employee telephoned a customer, the length of the customer-business relationship, the customer’s prior experiences with business communications, and the nature and timing of any recorded disclosures. These factors can potentially vary significantly on a plaintiff-by-plaintiff basis.
For instance, plaintiff in this case testified that she had a five-year relationship with the defendant, she had made at least a dozen inbound calls where she received a warning that the call might be recorded, she had never objected to any recording, and she had participated in “dozens and dozens and dozens” of telephone calls with other companies where she understood her call could be recorded or monitored. Consequently, her objectively reasonable expectations could differ significantly from those of other customers whose calls were recorded without warning. There was thus substantial evidence to support the trial court’s conclusion that a community of interest in common questions was lacking.
Affirmed.
Wednesday, January 22, 2014
Error Per Se? No Way!
F.B. v. Monier, No. C063239 (D3 Jan. 9, 2014)
The court of appeal—departing from a consistent line of cases going back thirty years—holds that although it is error for a trial court not to enter a statement of decision, it is not reversible error per se. Because the failure to enter a statement of decision in this case did not prejudice the defendant, no reversal was merited. The court further holds that the plaintiff was entitled to a setoff against a prior settlement with a different defendant who allegedly caused the same injury, and on that ground substantially reduces the verdict.
The court of appeal—departing from a consistent line of cases going back thirty years—holds that although it is error for a trial court not to enter a statement of decision, it is not reversible error per se. Because the failure to enter a statement of decision in this case did not prejudice the defendant, no reversal was merited. The court further holds that the plaintiff was entitled to a setoff against a prior settlement with a different defendant who allegedly caused the same injury, and on that ground substantially reduces the verdict.
Tuesday, October 22, 2013
A Bleak House Gets a Little Bleaker
Wallis v. PHL Associates, Inc., No. C066545 (D3 Oct. 17, 2013)
This is an appeal of a case that was originally filed in 1994! Most of the opinion is unpublished but the published section deals with when a statement of decision must be requested under Code of Civil Procedure § 632.
This is an appeal of a case that was originally filed in 1994! Most of the opinion is unpublished but the published section deals with when a statement of decision must be requested under Code of Civil Procedure § 632.
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