Witkin All the Way Down

Barriga v. 99 Cents Only Stores LLC, No. E069288 (D4d3 Jun. 26, 2020)

Wage and hour class action brought on behalf of Dollar Store Employees. In opposition to class cert, Store puts in 52 declarations from putative class members. Employees deposed some of the declarants. Some of them described signing the declarations under various coercive circumstances, which included being taken by HR to a room during work hours, presented with a fully drafted declaration, instructed to sign it, not being provided with an adequate Spanish translation, being enforced to sign without reading, etc. Others described signing under more mundane circumstances.

Employees moved to strike the declarations. The trial court declined. Relying, in part, on the declarations, it declined to certify a class. Employees appealed.

There’s a threshold issue on appealability. Employees’ notice of appeal didn’t identify the denied motion to strike. But it did flag the denied class cert motion. The Court decides that, given that the appeal of the class cert denial is appropriate under the death knell doctrine, it is fair to consider the motion to strike denial as subsumed into that appeal. After all, Rule of Court 8.100(a)(2) requires liberal construction of notices of appeal.

On the merits, under Gulf Oil Co.v. Bernard, 452 U.S. 89 (1981), and state decisions interpreting it, courts have a duty to police precertification communications between the parties and the class members. Generally, orders limiting communication need to be based on a specific record of particular abuses. One significant risk is the risk of coercive communications between a defendant and its current employees who are class members. Courts can view such communications with caution, and if declarations were given under coercive circumstances, courts have the authority to strike them or severely discount their weight.

The Court of Appeal holds that the trial court failed to appreciate and properly exercise its discretion in evaluating the motion to strike. Both the trial court’s tentative and final ruling indicated its belief that it lacked the statutory authority to strike the declarations. Nor did the record reflect that the trial court appreciated the potential coerciveness when a defendant collects declarations from its own class member employees. As such, the manner in which the trial court addressed the declaration was an abuse of discretion.

The Court goes on to explain that class cert orders are subject to a special standard of review. Unlike most appellate matters, the court will not affirm if the trial court’s reasoning was erroneous, but the record nonetheless contains a basis to affirm. A class cert ruling is reviewed entirely on its own basis. Which means that if the trial court applies an erroneous legal standard, a reversal would follow, even if, the trial court’s result could be justified were the the correct standard applied. The upshot of which is that the error in the manner in which the declarations were treated requires reversal, without an analysis of whether the declarations made any difference to the ultimate class cert decision. 

Justice Slough dissents, pretty stridently for state court, where dissents are uncommon. See Slip Op. at 4 (“I cannot overstate how deeply I disagree with their treatment of this case.”) Her principal point is on the prejudice issue. As she sees it, the Court isn’t actually reviewing a class cert order, it’s reviewing an evidentiary ruling. And like any evidentiary ruling, a reversal isn’t merited unless the error was prejudicial. See Cal. Cost. Art. VI, § 13, Code Civ. Proc. § 475. That analysis would require looking to the merits of the class cert ruling, which the majority didn’t reach. (And which Justice Slough believes was correct.) And since Justice Slough would find that the declarations didn’t have a meaningful effect on the ultimate result, an affirmance was merited, even if the trial court could have done a better job of scrutinizing the declarations. 

Reversed and remanded.

I must say, I’ve always found the California standard of review for class cert—which scrutinizes the logic of the trial court and refuses to consider alternative bases to affirm—to be kind of weird. What if, for instance, the trial court denied cert based on a slightly erroneous view of some complicated issue of superiority when (in the record but unmentioned in the trial court decision) the putative class contained three people? Why does that require a remand? 

I traced the rule back to its origins. It doesn’t seem to have a particularly thoughtful genesis. Back in 1981, the Supreme Court said:
“in the absence of other error, this court will not disturb a trial court ruling on class certification which is supported by substantial evidence unless (1) improper criteria were used; or (2) erroneous legal assumptions were made.” Richmond v. Dart Indus., Inc., 29 Cal. 3d 462, 470 (1981) (cites and quotes omitted). That itself seems reasonable and would not necessarily preclude an affirmance for some other ground supported by the record.

But by 2000, the Supreme Court was adding an additional sentence to the standard of review, explaining, that “[u]nder this standard, an order based upon improper criteria or incorrect assumptions calls for reversal even though there may be substantial evidence to support the court’s order.” Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 436 (2000) (quotes omitted). For that point, the Court cited a Court of Appeal case that says “we must determine whether the trial court engaged in correct legal analysis.” See Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644, 655 (1993). And Caro cites Nat'l Solar Equip. Owners' Assn. v. Grumman Corp., 235 Cal. App. 3d 1273, 1281 (1991) which in turn cites Clothesrigger, Inc. v. GTE Corp., 191 Cal. App. 3d 605, 612 (1987), which appears to be the first iteration of the rule, explaining that “[o]ur focus on correct process requires us to reverse even though there may be substantial evidence to support the court’s order.”

As Justice Lewis’s dissent in Clothesrigger cogently explains, however, the Clothesrigger majority just made up that standard out of whole cloth by taking out of context a snippet of text from Witkin California Procedure. There, the treatise said: “There are several situations in which the reasons for the trial court's decision are either required by statute or, though not required, may have a significant effect on the determination of the appeal.”  It then listed seven specific categories of rulings, none of which were a ruling on a class cert motion.

So there you have it.

ot

Richmond v. Dart Indus., Inc., 29 Cal. 3d 462, 470 (1981)

That’s What Writs Are For

Marez v. Lyft, Inc., No. A156761 (D1d1 Apr. 30, 2020)

Most of this opinion concerns whether Lyft can be held liable under respondeat superior when one of its driver was driving a car that he obtained in a rental facilitated by Lyft but who was driving for a personal purpose at the time of the accident. The court holds it cannot and affirms a summary judgment for Lyft on that ground. Ok.

But the plaintiff also complains that the trial court erred in limiting some of the issues he could inquire into during a PMQ depo of Lyft. The thing is, however, when you complain about a discovery ruling after a final judgment (as opposed to immediately taking a writ) you need to show that, but for the ruling, there’s a reasonable probably the case would have come out different. Here, the excluded testimony had absolutely nothing to do with the respondeat superior issue that ended plaintiff’s case. So right or wrong, the discovery ruling can’t be reversible error.

Affirmed.

Never Mind

People v. Native Wholesale Supply Co., No. C084031 (D3 Jul. 12, 2019)

UCL case brought by the AG against a Company run by an Indian tribe for selling a boatload of illegal cigarettes. Bunch of Indian commerce issues that are beyond my ken. But briefly, two procedural issues to note.

Bad, But Not Prejudicial

D.Z. v. LAUSD, No. B283799 (D2d4 May 14, 2019)

This is a pretty rare reversal of a jury verdict due to a trial court’s erroneous exclusion of evidence under Evidence Code § 352’s prejudice vs. probative value balancing test. That’s generally reviewed with a substantial amount of deference. But what the trial court did here was pretty bad. 

The case involves a teacher allegedly molesting a student. A key issue is whether the school was on notice that the teacher was a creep. The trial court, however, limited any evidence of other creepiness to the teacher’s physical acts. So the jury never heard, for instance, that the school knew about, but did not discipline, the teacher for his collection of inappropriate student photos or his lewd comments about a student’s breasts. That’s not ok.

Reversed.

The Mind of a Jury

Guernsey v. City of Salinas, No. H043283 (D6 Dec. 17, 2018)

The Court of Appeal reverses and remands a defense verdict for one defendant because some jury instructions suggested a government immunity that wasn’t really in play. 

To show prejudice, plaintiff submitted a bunch of juror affidavits, which suggested that the jury relied on the instruction in answering “no” on two liability questions and that they “agreed” the instruction precluded liability. The Court holds that those statements are inadmissible under Evidence Code § 1150, which bars evidence of jurors’ subjective mental impressions. 

In doing so, it rejects a statement in dicta in Harb v. City of Bakersfield, 233 Cal. App. 4th 606 (2015), which suggested in passing that evidence of a jury’s “verbal agreement” was objective enough to admit under § 1150. As the Court explains, the statements of jurors during deliberation are admissible under § 1150 only when the statements themselves are juror misconduct. (E.g., an admission that the juror consulted an outside attorney for advice on the law.)  

The Court finds prejudice nonetheless. It finds persuasive (and admissible) the fact that the jury had made written annotations on its copy of the incorrect instruction, as well as on the verdict form. Moreover, some of the questions asked by the jury suggested confusion, and the evidence overall suggested that, if the jury weren’t confused about the immunity, it would have found the defendant liable.

Reversed.

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.

Ancient History, Present Evidence

Phillips v. Honeywell Int’l Inc., No. F070761 (D5 Mar. 17. 2017)

A weird thing about asbestos cases is that the same general evidence about the defendant’s actions can get introduced in scores or even hundreds of separate cases. Sometimes even to the point where the practice treatises on asbestos litigation actually address strategies for dealing with specific pieces of evidence. 

Don't Need a Physiscist to Know What a Fender Bender Looks Like ...

Christ v. Schwartz, No. D068579 (D4d1 Aug. 12, 2016)

Appeal from a defense verdict in a low-speed car accident case. Plaintiffs are the victim and her husband, who is suing for loss of consortium. Defendant stipulated to negligence and causation of the accident, so the upshot of the defense verdict is that the jury didn’t believe that the victim’s claimed injuries were legit or that they resulted from the accident. Plaintiffs’ contend on appeal that the trial court erred in admitting photos of the damaged cars and evidence regarding victim’s husband’s extramarital affairs.

On the photos, Plaintiffs claim that, in the absence of expert evidence about the significance of the damage, it was error to admit the photographs as evidence of whether the accident was the cause of Plaintiffs’ alleged injuries. But California law does not require an expert to lay foundation for accident scene photos, so long as the judge in his or her discretion believes that the jury can use the photos to draw conclusions within their ordinary common experience. One outlier decision of another state somewhat suggested that rule, but even in that case a later decision walked it back.

Nor did the court abuse its discretion in declining the exclude the photos under Evidence Code § 352. The photos were relevant to show that the collision was a side impact, the general force of the collision, and to impeach Husband’s testimony that the car was more messed up than the photos showed it to be. Given that relevance, it was not an abuse of discretion to let them in.

So far as the affair goes, it had happened almost a decade and a half before the trial. The trial court tentatively denied a motion in limine to keep it out as minimally relevant to loss of consortium, but reserved a decision for trial. When Defendant’s counsel asked a question on the issue, Victim did not object, but she gave an unresponsive answer addressed to other issues. But then she volunteered a bunch of detail on the issue in response to general questions about the nature of her injuries and the state of her relationship with Husband. And then her lawyer addressed the affair issue in depth on redirect.

The court finds that Plaintiffs forfeited the issue by failing to timely object. A tentatively denied motion in limine that is expressly subject to revisitation does not preserve an objection in the absence of an on the record objection at trial under Evidence Code § 353. And in any event, a party seeking loss of consortium puts the state of his relationship into issue. Although the affair occurred a long time ago, Victim affirmatively brought it up during her medical treatment or her alleged injuries, which suggests that it was at least potentially relevant to her.

And regardless, the record was clear that the jury didn’t believe the victim’s testimony about the source and nature of her injuries. She was thoroughly impeached on these issues at trial, including by clandestine video showing her engaged in activities that were completely inconsistent with the the injuries she claimed to have suffered. Under the circumstances, even if it was error to admit either the photos or the testimony about the infidelity, the error was harmless and insufficiently prejudicial to merit reversal.

Affirmed.

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.

Reverend Unemployed Nazi Biker v. CALDOT, Fully Immune, but Poor

Martinez v. CALDOT, No. G048375 (D4d3 Jul. 7, 2015)

Except in the part at the beginning or end where counsel are listed, lawyers mostly don’t like to see their names in appellate opinions. Especially government lawyers. And especially in published opinions. For good reason. When it happens, somebody is usually in trouble.

No, No Puede!

Velasquez v. Centrome, No. B247080 (D2d8 Jan. 30, 2015) 

This is a toxic tort case. Plaintiff claims that workplace exposure to diacetyl—a chemical that smells like butterscotch or cheap California chardonnay—caused him severe lung injuries. The main issue in dispute is whether plaintiff is entitled to recover damages for the cost of a future lung transplant. 

Everyone Prevails. Now Go Home.

Macquiddy v. Mercedes-Benz USA, LLC, No B251752 (D2d8 Jan 29, 2015) 

This is a Song-Beverly Warranty Act case about a lemon Mercedes. Mercedes refused to replace the car after numerous failed attempts to repair it. When plaintiff brought suit, however, Mercedes admitted liability in its answer and the parties stipulated as to what the appropriate restitution would be. Mercedes then made a Code of Civil Procedure § 998 offer for the full value of the restriction, plus costs and fees, but plaintiff decided to roll the dice to try to win a statutory penalty, which is available only when the defendant’s violation is proven willful. The jury found no willfulness and thus no penalty was awarded. Based on that verdict, the trial court found that plaintiff could not recover statutory attorneys’ fees because he was not a “prevailing party,” and that costs (not including fees) were awardable to Mercedes. Plaintiff appealed the fee and cost decisions, as well as a related discovery order.

On the discovery issue, the trial court denied a motion to compel and granted a protective order over a bunch of discovery propounded by plaintiff, on the grounds that it was essentially irrelevant because liability wasn’t contested. The court here ducks the question of whether the discovery may have proven relevant to the disputed question of willfulness. Instead, it holds that when a plaintiff challenges a discovery ruling on an appeal of final judgment (as opposed to taking a writ), Art. 6 § 13 of the California Constitution and § 475 require him to substantiate that he was prejudiced by the denial of discovery. Here, plaintiff failed to establish how, had the trial court permitted the discovery, there was a reasonable chance that it would have resulted in a different outcome, so the appeal fails on this issue.

On the attorneys’ fee issue, the Song-Beverly Act affords attorney’s fees to a prevailing plaintiff. See Civil Code § 1794(d). Prevailing party is not defined. Although § 1032, the costs statute—which permits awards of fees when awardable as costs—defines a prevailing party as someone who secures a net monetary recovery, § 1794(d) does not adopt that definition.  The court—citing authority to the effect that when prevailing party is undefined, an assessment should turn on pragmatic considerations—holds that plaintiff did not prevail in this case. Although he secured a net monetary recovery, he did so over only the part of the case that was essentially uncontested. Because the plaintiff did not obtain his main litigation objective—the penalty award—the trial court did not abuse its discretion in finding that he was not the prevailing party.

The Court holds, however, that the § 998 offer was invalid because it was too uncertain. Although the amount offered was clear, the offer was conditioned on the car being returned in an “undamaged condition, save normal wear and tear.” Because that condition was undefined and essentially subjective, the offer was insufficiently certain to be enforceable. And because the § 998 ruling is reversed, the trial court also erred in awarding Mercedes its costs under § 1032. With the § 998 offer invalid, costs are to be awarded to the prevailing party based on the normal statutory standard. As noted, that standard deems the party that receives a net monetary recovery to have prevailed. Here, that was plaintiff.

Reversed and remanded, in part.

The Difference Between New Trial and JNOV

Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics, Inc., No. H038714 (D6 Apr. 22, 2014)

This is some heavy-duty litigation over Mitsubishi’s alleged disclosure of memory chip technology in violation of an NDA with plaintiff, the technology’s inventor. A jury awarded plaintiff almost $124 million. The trial court, however, ordered a new trial on damages, ruling that the jury had used an erroneous measure that assumed plaintiff lost the entire value of the technology due to the disclosure, even though the evidence showed that plaintiff still had the ability to profit from the technology after the breach. In this appeal, Mitsubishi argues that on damages, the trial court should have granted it a JNOV—not just a new trial—and that the court should also have granted a new trial on liability due to improperly admitted evidence.

Curing the Court's Error with a Peremptory Dooms Appeal for Cause

People v. Black, No. S206928 (Cal. Mar. 27, 2014)

Ok, it’s a criminal case. But it deals with jury selection, an issue common to both civil and criminal cases, and which is governed in both by the Code of Civil Procedure. A unanimous California Supreme Court holds that an erroneous denial of a challenge to a juror for cause is not reversible error, so long as no incompetent juror was actually empaneled. That’s the case even though the court’s error was cured when the defendant used a peremptory strike that he would have preferred to save for someone else.

When up Against a Pro Se, the Record Is Your Co-Defendant

Petrosyan v. Prince Corp., No. B244274 (D2d8 Jan. 29, 2014)

This case involves a jury trial in a wage and hour case litigated by a non-English-speaking pro se through an interpreter. The case was a trial de novo after the Labor Board awarded plaintiff only $12,000 on his claim. Before the trial, defendant won a motion in limine, precluding plaintiff from mentioning other plaintiffs’ cases or settlements involving defendants in front of the jury. Plaintiff nevertheless mentioned those cases in his opening statement. The court declared a mistrial. For trial #2, defendant made the same motion, which the court again granted, telling plaintiff: Don’t do what you did last time. In the second trial, during plaintiff’s direct exam of himself, he mentioned the Labor Board award he was appealing. The defendant’s lawyer objected about the reference to the prior case, but admitted that he supposed he should have specifically put that in his motion in limine. The court ruled that it was there in spirit, granted another mistrial and dismissed the case with prejudice for plaintiff’s misconduct. Plaintiff—now represented by a partner at Steptoe & Johnson—appealed. Defendant failed to file a respondent’s brief. The court of appeal reverses, holding that the trial court needed to be clearer with the pro se plaintiff. The in limine ruling re other cases did not necessarily apply to Labor Board proceeding in the same case. Defendant tacitly admitted as much when its attorney said he should have put that in his motion. Since the order wasn’t clear, plaintiff didn’t commit misconduct meriting terminating sanctions by failing to comply with it. And in any event, plaintiff’s reference to the Labor Board case was not so prejudicial that it could not have been cured with a jury admonition. So there was no reason to order a second mistrial in the first place.

Reversed and remanded.