First, I Assumed We Had a Theory...

Esparza v. Safeway, Inc., No. B287927 (D2d4 as modified June 28, 2019)

Having bobbed and weaved their way to get their class certified, Plaintiffs in this wage and hour case have a problem. Their class cert arguments were based on the idea that they did not need to show how many meal breaks were missed by each class member, since that would be subject to individual proof. Instead, they put up a theory that there was a “market value” to a job without a meal break and that that value was captured by Employer and thus a legit target for restitution under the UCL. It’s a less obvious theory than “I missed 42 meal breaks,” but it is at least theoretically more capable of classwide proof.

That is, until it comes time to prove it. 

Garbage in Garbage out.

Olive v. Gen. Nutrition Cntrs. Inc., No. B279490 (D2d4 Nov. 4, 2018)

Plaintiff is a Model, suing a Client under Civil Code § 3344 for violating his right of publicity by allegedly unauthorized use of his likeness in Client’s advertising. Section 3344(a) permits a plaintiff to recover whatever profits are attributable to an unauthorized use. Plaintiff designated three different experts to testify on that topic, but the trial court granted motions in limine to exclude two of them because they offered “nearly data free and methodologically primitive” analyses.

Costs of Proof

Orange Cnty. Water Dist. v. The Arnold Eng’g Co., No. D070763 (D4d1 Jan. 10, 2019)

This is a sixty-page opinion entirely devoted to an appeal of an award of $615,000 in costs of proof because the plaintiff—who lost at trial—denied a bunch of requests for admission. 

Doctor’s Doctor’s Doctor Doctors Doctor’s Doctor’s Doctored Doctor’s Doctor.

Padda v. Superior Court, No. E070522 (D4d2 Jul. 6, 2018)
 
This short opinion granting a writ requiring a trial continuance is a little hard to follow. Mostly because everyone’s a doctor. It’s an employment dispute between two doctors and their former practice, which was run by some other doctors. It involves the parties’ gastroenterology experts (doctors) one of whom fell ill right between trial, and whose own doctor advised that he sit it out awhile.

Two weeks before trial, and before he was deposed, Plaintiffs’ gastroenterology expert was diagnosed with a hemorrhagic cyst in his kidney. The expert’s doctors advised him to take it easy, including not testifying at trial. Plaintiffs moved for a continuance under Code of Civil Procedure § 595.4, which permits a continuance when a material witness isn’t available. The moving party needs to file a declaration summarizing the testimony, and the opposing party has a chance to stipulate to admit it, which precludes a continuance. The non-moving party here wouldn’t stipulate, so the statute was satisfied.

So the Court of Appeal holds that the trial court abused its discretion in not allowing the continuance. The court’s alternative solution—to immediately start trial but then delay it while the doctor could find a doctor whose doctor was ok with the doctor being the doctor’s doctor—didn’t make much sense. Indeed, even though the nonmoving party didn’t want the continuance, it didn’t support that plan.

Writ granted.