Mootness, Remedies, and Class Cert

Shaw v. LAUSD, No. B315814 (D2d4 Sept. 9, 2023)

This is a super important education case brought by some of my partners that alleges that a series of LAUSD-UTLA collective bargaining side deals to deal with remote learning during the pandemic violated LAUSD students’ rights to equal educational opportunities under the State Constitution and the Education Code. Congrats to my partners Ned and Mark and Sierra.

But in this venue, I’m gonna leave the substance to the ed reform lawyers. There are, however, a bunch of interesting procedural issues that are worth noting. 

They mostly arise from the procedural posture of the case. Plaintiffs got their complaint on file early in the 2020-21 school year. They tried to file a preliminary injunction as a noticed motion. But because their case was brought as a class action, the (completely non-statutory or rule based) automatic stay that issues in LA Civil Complex departments prevented them from getting that on file for a long long time. There was some also discovery fighting and later, an amended complaint. While that was all pending, the Legislation governing distance learning expired, as did the the final LAUSD-UTLA side letter, which ran to the end of the 2021 school year.

The District moved to strike the operative complaint’s prayer for retrospective injunctive relief, arguing that it was not a proper form or relief and that is could not be obtained on a class wide basis. The Union moved to strike the class allegations for failure to establish a well-defined community of interests. Both defendants demurred to the operative complaint on mootness grounds. The trial court essentially granted all the motions. Plaintiffs appealed.

After some confusing discussion about forfeiture and waiver, the Court of Appeal offers up an interesting discussion of the relationship between mootness and remedies. People who live in federal court world probably know this intuitively. Under the classic formulation of Article III standing, to have standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–560 (1992). As Justice Powell explained almost 50 years ago, the “standing question . . . bears close affinity to questions of ripeness—whether the harm asserted has matured sufficiently to warrant judicial intervention—and of mootness—whether the occasion for judicial intervention persists.” Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975). That is, a case is moot when, due to events after filing, the court can no longer provide any meaningful remedy.

California state court does not have article III standing, so the relationship between mootness and the viability or remedies is less clear-cut doctrinally, but the court does a good job of explaining the relationship here. The upshot of that is if the trial court erred in striking the class allegations and the claim for retrospective injunctive relief, the mootness issue essentially falls with those rulings.

That brings up two related questions: 1. When can you strike class allegations at the pleadings stage; 2. Is there even such a thing as retrospective injunctive relief.

On the first question, striking class allegations on the pleadings, without taking any evidence, is pretty disfavored. Generally, a challenge to the viability of a class action needs to wait until class certification, so long as the complaint alleges facts that (1) there is an ascertainable class of plaintiffs; and (2) there are common questions of law and fact among them. Generally questions of predominance, and manageability, and typicality must await the more detailed analysis undertaken at class certification.

The Court of Appeal says that the trial court erred in striking the class allegations based on its assessment that to the extent retrospective injunctive relief is even a thing, it can’t be managed on a class-wide basis. Since the complaint showed that a class was clearly ascertainable (LAUSD students during the pandemic) and the were obvious common questions (the legality of LAUSD policy and the UTLA-LAUSD deals) that should have been the end of the inquiry at the pleadings stage. As the Court notes, there is no authority supporting the striking of class allegations on the pleadings due to the purported lack of a class-wide remedy.

So far as retrospective injunctive relief, of course that is a real thing. If a defendant’s violations of the law hurt the plaintiff in a way that can’t be fixed with money, the court clearly has the power to order the defendant to do things prospectively that remediate that harm. No doubt, those kinds of remedies re less common and harder to judicially administer than a typical prohibitory injunction that just says “stop doing x.” But, in the right circumstances, an equitable remedy to fix past harms is available. The Court cites cases providing the classic remedy of the reinstatement of a wrongfully terminated employee or the award of credit wrongfully withheld.

The Court then addresses the Union’s claim that, given the expiration of the side letters, it should be let out of the case. The only reason the Union got sued here was as a “relief defendant”—a defendant who is not in the case for committing its acts that harmed the plaintiff (the Union owes the plaintiffs no duty), but which needs to be present to afford effective relief. Ironically, the reason the Union got sued here was to avoid the result of another case involving UTLA—Reed v. United Teachers Los Angeles, 208 Cal.App.4th 322 (2012)*—an education reform case where UTLA successfully blew up a settlement agreement between LAUSD and student plaintiffs because, although UTLA wasn’t a party, the terms of the settlement affected the rights of its members. The Court points out Reed requires keeping the Union in the case as a necessary party. 

Finally, the Court holds that Plaintiffs’ challenge to the legality of automatic stay in L.A. Superior complex is non-justiciable. The theory was that the stay—which is not grounded in any statutory or rule-based authority—deprived Plaintiffs’ of their statutory right to move for a preliminary injunction. But the stuff Plaintiffs wanted to restrain—LAUSD’s distance learning polices and the LAUSD-UTLA side letters—have all since lapsed. So that question actually is moot. As the Court notes in explaining that the question is not one that evades review, a writ of mandate was available to challenge the stay, and some future plaintiff will be able to do so.

 Reversed.

*Full disclosure: I worked, briefly, on appellate issues in Reed a long time ago.

Can't Skip the Lodestar

Frym v. 601 Main Street LLC, No. A163086 (D1d5 Aug. 24, 2022)

Tenant brings similar claims against each of Landlord Entity, Landlord Entity’s Owner, and Landlord Entity’s Attorney. Each is separately represented. All three defendants file anti-SLAPP motions. Court grants Owner’s motion, and awards her fees. While briefing is pending, however, Tenant dismisses LE and Attorney. Court correctly recognizes that the dismissals don’t moot LE and Attorney’s motions—indeed it effectively concedes their merits. But it declines to award them fees, finding that the three motions had so much overlap that they could have been brought as one joint motion, so there’s no marginal value-add to the two extra motions.

That was error. A prevailing anti-SLAPP movant is statutorily entitled to fees, determined by the lodestar (reasonable rate times reasonable time) method. The court could have done that and—to the extent time was wasted or duplicated—declined to include it in the lodestar. But it could not just make a gestalt judgment that the whole shebang was duplicative. Moreover, because they had separate counsel, it could not all have been duplicative. For instance, Attorney’s lawyer prepped for and showed up at the hearing. And it just wasn’t fair to give fees only to Owner’s lawyer, just because her motion was heard first. So the case gets remanded to the trial court to do a legit lodestar. And moreover, Owner and LE get fees on appeal.

Reversed.

Dismissed Jones Act Claim Is Still a SLAPP

Curtin Maritime Corp. v. Pacific Dredge & Construction, LLC, No. D078217 (D4d1 Mar. 22, 2022)

This is an anti-SLAPP appeal based on a theory that a competitor’s false certification to the Coast Guard to obtain a certification under the Jones Act* that its vessel was U.S. made violated the UCL. Defendant took an appeal after it lost the motion in the trial court. But the Plaintiff tried to dismiss the complaint while the appeal was pending, claiming the dismissal rendered the appeal moot. 

Not so. An appeal automatically stays trial court proceedings for any matter embraced or affected by the appeal. Code Civ. Proc. § 916. Since the validity of a complaint is embraced by an anti-SLAPP appeal, the automatic stay precluded the dismissal. And in any event, the appeal isn’t moot because a reversal will permit the defendant to claim fees on remand under § 425.16(c).

On the merits, on prong 1, the crux of Plaintiff’s claim entailed an allegation that Defendant submitted a false application for certification to the Coast Guard. That’s protected activity. On prong 2, the claim was preempted by the Jones Act, which the court finds gives the federal government the exclusive authority to determine what vessels satisfy the Jones Act.

Reversed.

*The Jones Act requires commercial vessels that sail in wholly domestic commerce—between two U.S. ports—to be manufactured domestically.

Still Aggrieved After All These Years

Kim v. Reins Int’l. Cal., Inc., No. S246911 (Cal. Mar. 12, 2020)

I never thought this 2017 decision made much sense. The California Supreme Court apparently agrees. It holds that a plaintiff’s settlement of his individual Labor Code claims does not moot out his ability to continue to litigate representative claims under the Labor Code Private Attorney General Act.

Court of Appeal reversed.

A Hard Road to Ditch a Bum Felon Jacket

Roger v. Cnty of Riverside, No E070776 (D4d2 Jan. 22, 2020)

Plaintiff in this case is a surgeon who got thrown in jail for civil contempt when he refused to produce some patient records. The county running the jail created a record that he had been jailed for a felony conviction. Which isn’t true. Civil contempt is civil—notwithstanding the custody, it’s not even a misdemeanor. The felony rap lead plaintiff to losing work and other difficulties. Plaintiff sued the County for § 1983, defamation, and other claims relate to the false recording of him as a felon.

A bunch of the appeal deals with code claim processing issues that are beyond my coverage. Suffice it to say that an SJ on them gets reversed. But there are three procedural points of note.

First, during the litigation, the County ultimately fixed the plaintiff’s record by manually recording it as a civil confinement in its system. It argued that make the plaintiff’s claims for declaratory relief and writ of mandate moot. But there was no admissible evidence (see #2) that the County had implemented a procedure to ensure it correctly documented civil confinements in the future. Given the immense consequences of a felony rap, that failure was of sufficient public importance to merit an exception from the mootness doctrine on these claims.

Second, it arguing mootness, the County put in a declaration stating that based upon the declarant’s understanding, the court system had fixed the way it documented civil contempts. But a declarant’s “understanding” is not personal knowledge. It is instead a form of information and belief. It thus is not competent summary judgment evidence under Code of Civil Procedure § 437c(d), which requires declarations on personal knowledge. 

Third, the Court reverses a demurrer on a § 1983 Monell claim, where plaintiff had alleged that the County knew it didn’t have any procedure to accurately book inmates for civil contempt and thus that the way it trained its employees was deliberately indifferent to inmates civil rights. The Court of Appeal finds that, notwithstanding the relatively high level of generality, that allegation was an adequate statement of “ultimate facts” to satisfy the fact pleading standard. As the court explains, the standard is contextual—plaintiffs are under a lesser obligation of specificity when the facts address issues within the knowledge of the defendant.

Reversed.

Pick-Off Move Does Not Work

Timlick v. Nat’l Enter. Sys., Inc., No. A15423 (D1d3 Jun. 21 2019)

This is a class action over debt collection practices. The relevant statue provides for an opportunity to cure. Which defendant did as to the lead plaintiff. The principal question is whether once that happened, the trial court could appropriately dismiss the whole class action. 

The Court of Appeal holds it could not, under what is known as the “pick off” exception. The whole point of a class action—giving a large number of people relatively small amounts of relief—would be frustrated if a defendant could unilaterally resolve claims by a class rep by tendering the available relief while withholding the same relief from the rest of the class. At minimum, the class must be afforded an opportunity to amend and find a new rep. And even if that can’t happen, the named plaintiff can continue on as the rep if he or she can “continue to fairly represent the class in light of the individual relief offered by defendant.” And in any event, that’s an issue that needs to be decided in the class cert context. A defendant can’t just tender relief to the rep and then move to dismiss the whole case.

Reversed.

Not a Pickoff Move.

Schoshinski v. City of L.A., No. B269431 (D2d8 Mar. 14, 2017)

There are two class actions against a City for utility overcharging. Case #1 settles, with City agreeing to pay full refunds of the contested fees and other injunctive relief. The class rep in Case #2 didn’t opt out of Case #1 and received the refunds. The city successfully got him out on summary judgment on mootness grounds, but the court permitted amendment to add new reps. The new reps, however, had also received refunds under the Case #1 settlement. The trial court again granted SJ, and the new reps appeal.

Defense Judgment + Contingent Side Payment ≠ Moot

Hensley v. San Diego Elec. Co., No. D070259 (D4d1 Jan. 31, 2017)

Plaintiffs in this case lost an in limine motion on whether they could recover emotional distress-related damages on their claims, which made it not worth it to try the case. The parties tried to enter some kind of a stipulated arrangement that permitted an appeal. But the first time it went up, the Court of Appeal found that the arrangement was too ambiguous to count as a final judgment so no appeal would lie.

On remand, the parties agreed privately that Defendant would pay Plaintiffs a dollar amount on their non-emotional distress claims. Defendant also agreed to make an additional liquidated payment, but only if the Court of Appeal were to reverse the in limine ruling and remand for trial. They then stipulated to enter a final judgment in favor of Defendants that Plaintiffs “take nothing” on all claims, but which specifically stated that it was without prejudice to Plaintiffs’ right to appeal the damages.

The Court of Appeal finds that this time around, the parties did enough to create an appealable final judgment.There's no doubt that, on its face, the judgment finally disposed of all of the claims in the litigation. Nothing ambiguous or contingent about it. The fact that it was taken for the purposes of facilitating an appeal didn’t change that fact.

But what about the side deal? Under the parties’ agreement, there won’t ever be a trial even after a remand, because they agreed to resolve that contingency with a payment. That creates a tricky situation. On one hand, there’s no question that the parties could have struck the same deal ten minutes after the reversal. The judgment is still a judgment and the appeal has meaningful consequences for the parties. So, according to the court, the side deal doesn’t make the case moot.

That said, the court is clearly concerned with the potential that these kind of side bets could be used to manipulate appellate jurisdiction and avoid mootness. Clever parties could use these kinds of agreements to trick courts into issuing advisory opinions. The court finds that these concerns don’t control here, however, because the amount of the side-payment “essentially represents a liquidation of [Plainiffs’] emotional distress damages for their causes of action for trespass and nuisance, and is a matter still at stake between them.” But the court makes clear that if the payment were more arbitrary or manipulative, it could well be sufficiently divorced from the true merits as to render a case moot. 

The court goes on to reverse on the damages question. So Plaintiffs get their emotional distress covered without going to trial.


Reversed.

Munsingwear ...

La Mirada Neighborhood Assoc. of Hollywood v. City of LA, No B258033 (D2d7 Aug. 16, 2016)
Generally, an action that moots a controversy while an appeal is pending results only in the dismissal of the appeal. But when legislative or regulatory changes make a matter moot, sometimes it’s warranted to order the trial court to vacate the underlying judgment, such that the dismissal of the appeal doesn’t result in an automatic affirmance of a judgment whose legal legs had been cut out from under it. But the rule doesn’t apply when, like here, the government body that takes the action to moot the case is also the appellant. In those cases, dismissal of the appeal is all that’s warranted.

Appeal dismissed.

Some Situations Are Made for Interpleader . . .

County of Santa Clara v. Escobar, No. H038121 (D6 Jan 26, 2016)

Under Government Code 23004.1, a county that incurs medical expenses treating injured person P has a direct cause of action against D, who caused the injury. It can also put a lien on any judgement P recovers against D. If P pays off the county’s debt, D is excused.
 
Here, P won a personal injury verdict against D. And then a County put a lien on the proceeds for a hefty $1.25 million in medical expenses shouldered by a public hospital. To avoid the trouble of dealing with the County, while at the same time keeping P for making collections efforts, D cut a check to the whole amount, but made it jointly payable to P and the County. When P wouldn’t pay off the County out of the award, it separately sued D in a new action. But D argued that any direct action was extinguished when it tendered its joint check to P and the County, leaving up to them to work out who got the money at the end of the day. The trial court agreed and sustained a demurrer, ruling that D’s obligation was extinguished by tendering the check, regardless of whether the County actually got paid. According to the trial court, County’s remedy was instead to enforce its lien against P.
 
The Court of Appeal disagrees. After waiving off a mootness argument that doesn’t make much sense, the court, relying on subrogation and indemnification principles, as well a deep dive into the relevant provisions of the Government Code, holds that the law does not actually cut off the county’s claim until it actually gets paid. So far as D’s legitimate concerns about multiple liability, those could have been addressed tendering the funds to the court and filing an interpleader against P and the County. Which is what will likely happen on remand.

Reversed.

If There Was Never a Real Plaintiff, No Discovery to Find a New One.

CVS Pharmacy, Inc. v. Superior Court, No. C077622 (D3 Oct. 15, 2015)

This case addresses if and when it is appropriate to permit pre-certification discovery to locate absent class members in a so-called “headless” class action. That is, a case where the court has determined that the original named plaintiff lacks standing the pursue the case on her own behalf. 

Writ Petition Does Not Survive the Petitioner

Monsivaiz v. Civil Serv. Comm’n of the Cnty. of L.A., No. B254859 (D2d8, as further modified May 12, 2015)

While his petition for a writ ordering the LA Civil Service Commission to reinstate his job as an agricultural inspector was pending, petitioner died. His wife tried to sub in has his successor in interest. The trial court denied relief, finding that since its only power in mandamus was to order the commission to reinstate, it could not award the wife any relief cognizable on a writ, and thus that it lacked jurisdiction.  The court here affirms.  The wife might have a claim for back pay. But that wasn’t properly addressed on a writ to the Civil Service Commission, whose authority was limited to ordering the petitioner reinstated. Which is of course impossible, because he is dead.

Affirmed.

Angry Neighbor Can't SLAPP a Prior Version of a Complaint

JKC3H8 v. Colton, No. C071010 (D3 Nov. 13, 2013)

In an ugly dispute over the use of an unpaved road in Ripon, plaintiff’s first complaint made a bunch of allegations suggesting that its claims arose in part from the defendant having obtained a restraining order. But in an amendment, plaintiff took those allegations out. Then defendant filed a SLAPP motion, relying in part on the allegations in the original complaint to argue that the cause of action arose from protected activity. The trial court denied the motion on the merits. But the court of appeal held that the removal of the problematic allegations effectively rendered the motion moot since the complaint at issue did not arise from protected activity. The court explained that although a plaintiff can’t amend to avoid a SLAPP motion after it has been filed because it would permit a subterfuge of the purposes of the SLAPP statute, the same rationale does not apply when allegations are excised from a complaint by amendment before a SLAPP motion was even filed. So the motion was a nonstarter and the trial court should not have reached the merits.

Vacated as moot.

Victory for the First Amendment, Just a Little Too Late

Steiner v. Superior Court, No. B235347 (D2d6 as modified, Nov. 26, 2013)

The plaintiffs’ lawyer in an asbestos case has some pages on her website trumpeting her multi-million victories in automobile brake exposure cases. The jury was instructed, per CACI 100, that they should not use the Internet to find out about the case or the attorneys. But the defendant was nonetheless concerned that jurors might Google the attorney and see these pages. So it asked the trial court to order her to take the pages down. The court agreed, and the plaintiffs sought a writ. Although the trial ended while the writ was pending, the court of appeal reached the issue under the public interest exception to the mootness doctrine. The court, applying the commercial speech standard set out in the Supreme Court’s Central Hudson decision, found that the trial court violated the lawyer’s first amendment rights by ordering a prior restraint. Since there were less restrictive methods to protect the interest in a fair trial—namely, instructing the jury under CACI 100—the restraint was unconstitutional. So if the case wasn’t moot, the writ would have been granted.

Writ denied as moot.