Ironridge Global IV, Ltd. v. Scripsamerica, Inc., No B256198 (D2d8 Jun. 30, 2015)
Under the terms of a settlement, entered on the record as a judgment under Code of Civil Procedure § 664.6, Defendant had to pay Plaintiff by issuing stock and delivering it to Plaintiff. If the price went down, Defendant was required to pony up more stock. The price did, in fact, go down. When Defendant refused to turn over the stock, Plaintiff successfully sought to enforce the judgment in court. The court ordered Defendant (1) not to give away any of its stock to any other party; and (2) to give Plaintiff the stock it was entitled to.
Defendant appealed. Under established appellate procedure, that stayed order (2), because the turnover obligation is mandatory, but not order (1) which is just a prohibitory injunction. See Kettenhofen v. Superior Court, 55 Cal. 2d 189, 191 (1961) (“An appeal stays a mandatory but not a prohibitory injunction.”). But while the appeal was pending, Defendant violated order (1) by issuing 8.7 million shares of its stock to third parties. Bad idea. Under the disentitlement doctrine, when there’s no stay, an appellate court has the discretion to dismiss an appeal when the appellant violates the underlying trial court order being appealed. The court does so here.
Appeal dismissed.
Monday, July 27, 2015
Friday, July 24, 2015
Court Can Reconsider Arbitration Order
Pinela v. Nieman Marcus Grp., Inc., No A137520 (D1d4 Jun. 29, 2015).
This is a long and complicated decision addressing the enforceability of Nieman Marcus employee’s arbitration agreement. A bunch of overlapping choice of law and enforceability issues are at issue. But it basically all boils down to the fact that the agreement’s election of Texas law to govern the merits of any dispute arising from the employment relationship (not just contract disputes) made it unconscionable. The election would deprive plaintiff of her unwaivable statutory wage and hour claims under California law. You can’t do that in California.
In getting there, the court makes an interesting point: the line of cases addressing the limited “vestigial” jurisdiction that trial courts retain after compelling arbitration does not apply to the court’s sua sponte power to reconsider the arbitration ruling itself. Here, the court initially compelled most of the case to arbitration, but following developments in the case law—including a published court of appeal case interpreting the exact same agreement—changed its mind. There’s nothing wrong with that.
Affirmed.
This is a long and complicated decision addressing the enforceability of Nieman Marcus employee’s arbitration agreement. A bunch of overlapping choice of law and enforceability issues are at issue. But it basically all boils down to the fact that the agreement’s election of Texas law to govern the merits of any dispute arising from the employment relationship (not just contract disputes) made it unconscionable. The election would deprive plaintiff of her unwaivable statutory wage and hour claims under California law. You can’t do that in California.
In getting there, the court makes an interesting point: the line of cases addressing the limited “vestigial” jurisdiction that trial courts retain after compelling arbitration does not apply to the court’s sua sponte power to reconsider the arbitration ruling itself. Here, the court initially compelled most of the case to arbitration, but following developments in the case law—including a published court of appeal case interpreting the exact same agreement—changed its mind. There’s nothing wrong with that.
Affirmed.
Jerk Plaintiffs Make Bad SLAPP Law
Finton Constr., Inc. v. Bidna & Keys, APLC, No. G050093 (Jun. 29, 2015)
This case is an offshoot of a very ugly-looking partnership litigation pending in LA Superior Court. The gist of this matter is that a departing partner allegedly copied a bunch of files onto a hard drive, which he later turned over to his lawyers. The lawyers disclosed this fact to their opponents and the court in the LA case. Discovery issues regarding the handling and production of the files on the hard drive are being actively litigated in the LA case. The trial court appears to be making rulings to the effect that the drives don’t need to be unilaterally returned, and that that the documents on it are relevant and discoverable in the litigation. It has entered some orders attempting to work out a protocol to preserve and produce the documents, while ensuring that they aren’t misused. Seems reasonable.
This case is an offshoot of a very ugly-looking partnership litigation pending in LA Superior Court. The gist of this matter is that a departing partner allegedly copied a bunch of files onto a hard drive, which he later turned over to his lawyers. The lawyers disclosed this fact to their opponents and the court in the LA case. Discovery issues regarding the handling and production of the files on the hard drive are being actively litigated in the LA case. The trial court appears to be making rulings to the effect that the drives don’t need to be unilaterally returned, and that that the documents on it are relevant and discoverable in the litigation. It has entered some orders attempting to work out a protocol to preserve and produce the documents, while ensuring that they aren’t misused. Seems reasonable.
Thursday, July 23, 2015
Some Limits in the Ethical Wall
Castaneda v. Superior Court, No. B259950 (D2d8 Jun. 24, 2015)
L.A. Superior Court runs a mediation program called CRASH, where two volunteer attorney referees, assisted by a settlement judge, try to work out settlements in employment cases. To plaintiff’s displeasure, six months after a CRASH mediation where his counsel allegedly disclosed confidential strategies to the panel, one of the attorney volunteers’ partners substituted in as counsel for the defendant. Nobody disputes that the volunteer would be DQed from the case. The issue is whether the conflict should be vicariously imputed to her partner. The trial court held that, regardless of whether confidential info had been disclosed, an ethical screen-off of the volunteer would be sufficient to impute any conflict. Plaintiff took a writ.
L.A. Superior Court runs a mediation program called CRASH, where two volunteer attorney referees, assisted by a settlement judge, try to work out settlements in employment cases. To plaintiff’s displeasure, six months after a CRASH mediation where his counsel allegedly disclosed confidential strategies to the panel, one of the attorney volunteers’ partners substituted in as counsel for the defendant. Nobody disputes that the volunteer would be DQed from the case. The issue is whether the conflict should be vicariously imputed to her partner. The trial court held that, regardless of whether confidential info had been disclosed, an ethical screen-off of the volunteer would be sufficient to impute any conflict. Plaintiff took a writ.
Wednesday, July 22, 2015
Negligence vs. Causation
Bermudez v. Ciolek, No. G049510 (D4d3, as modified July 20, 2015)
In a car accident case with two defendants, the jury found both negligent, but that only Defendant #1 one was a substantial factor in causing the plaintiff’s injury. Defendant #1 says that the verdict forms are inconsistent so she deserves a new trial. But they aren’t. The record showed that the jury could have easily found that Defendant #2 was negligent in that he was driving at slightly above the speed limit, but that his speeding wasn’t the cause of the accident.
Defendant #1 also challenges the plaintiffs’ medical damages. As we discussed last month hospital bills generally aren’t good evidence of medical expenses, because the billed amounts have so little bearing on what ultimately gets paid, which is the proper measure of damages. At least that’s the case with insured plaintiffs, because its the leverage of the insurers that gets the providers to reduce the check to the realm of the reasonable.
But plaintiff here isn’t insured. His bills have never been paid and the hospital still could technically try to collect on them in full. Nonetheless, the court finds that a plaintiff is generally entitled to the lesser of: (1) medical costs paid or incurred; or (2) their reasonable value. In an uninsured case, (2) requires a wide-ranging inquiry, in which the plaintiff must produce some evidence, independent of the bills, showing that the charges were reasonable. The bills aren’t per se inadmissible, but on their own they won’t carry the day. That ultimately wasn’t an issue here, because (other than a small conceded reduction) plaintiff did come forward with some other evidence.
Affirmed, except for amendment of judgment to make a minor reduction of damages.
In a car accident case with two defendants, the jury found both negligent, but that only Defendant #1 one was a substantial factor in causing the plaintiff’s injury. Defendant #1 says that the verdict forms are inconsistent so she deserves a new trial. But they aren’t. The record showed that the jury could have easily found that Defendant #2 was negligent in that he was driving at slightly above the speed limit, but that his speeding wasn’t the cause of the accident.
Defendant #1 also challenges the plaintiffs’ medical damages. As we discussed last month hospital bills generally aren’t good evidence of medical expenses, because the billed amounts have so little bearing on what ultimately gets paid, which is the proper measure of damages. At least that’s the case with insured plaintiffs, because its the leverage of the insurers that gets the providers to reduce the check to the realm of the reasonable.
But plaintiff here isn’t insured. His bills have never been paid and the hospital still could technically try to collect on them in full. Nonetheless, the court finds that a plaintiff is generally entitled to the lesser of: (1) medical costs paid or incurred; or (2) their reasonable value. In an uninsured case, (2) requires a wide-ranging inquiry, in which the plaintiff must produce some evidence, independent of the bills, showing that the charges were reasonable. The bills aren’t per se inadmissible, but on their own they won’t carry the day. That ultimately wasn’t an issue here, because (other than a small conceded reduction) plaintiff did come forward with some other evidence.
Affirmed, except for amendment of judgment to make a minor reduction of damages.
Tuesday, July 21, 2015
The Theory of Trial Principle
Navarrete v. Meyer, No. D067454 (D4d1, as modified Jul. 22, 2015)
When you try and lose a case based on a core theory that applies the facts to the law, an appellate court generally won’t let you change that theory in seeking reversal. This is known as the “theory of trial principle.” But the principle isn’t super-rigid. So if your appeal is generally consistent with your trial theory but invokes more detailed, while consistent, legal analysis, the theory doesn’t preclude a reversal. After all, sometimes things are just a little more thoughtful given the pace and focus of an appeal. The appellate lawyers in this case invoked a statute that hadn’t been addressed in the trial court briefing. But their theory was more or less consistent, so the theory of trial principle wasn’t offended, and they could make their argument on appeal.
That being the case, and the argument being permitted, the trial court erred in granting summary judgment.
Reversed.
When you try and lose a case based on a core theory that applies the facts to the law, an appellate court generally won’t let you change that theory in seeking reversal. This is known as the “theory of trial principle.” But the principle isn’t super-rigid. So if your appeal is generally consistent with your trial theory but invokes more detailed, while consistent, legal analysis, the theory doesn’t preclude a reversal. After all, sometimes things are just a little more thoughtful given the pace and focus of an appeal. The appellate lawyers in this case invoked a statute that hadn’t been addressed in the trial court briefing. But their theory was more or less consistent, so the theory of trial principle wasn’t offended, and they could make their argument on appeal.
That being the case, and the argument being permitted, the trial court erred in granting summary judgment.
Reversed.
Monday, July 20, 2015
A Good Reason to Address Class Cert Early
Falk v. Children’s Hospital L.A., No. B251182 (D2d3 Jun 24, 2015)
This case is about so-called American Pipe tolling. See Am. Pipe & Const. Co., v. v. Utah, 414 U.S. 538 (1974). It was developed under federal law, but generally applies in California as well. The gist of the doctrine is that a plaintiff who is within the class definition in a pending class action can rely on that action in deferring to bring her own suit. The statute of limitations on her claims gets tolled during that period. The whole point is to deter every potential class member from feeling like they need to jump in to preserve their rights, which would defeat the whole point of the class action procedure.
This case is about so-called American Pipe tolling. See Am. Pipe & Const. Co., v. v. Utah, 414 U.S. 538 (1974). It was developed under federal law, but generally applies in California as well. The gist of the doctrine is that a plaintiff who is within the class definition in a pending class action can rely on that action in deferring to bring her own suit. The statute of limitations on her claims gets tolled during that period. The whole point is to deter every potential class member from feeling like they need to jump in to preserve their rights, which would defeat the whole point of the class action procedure.
No Piggybacking on a Co-Defendant's 998
Litt v. Eisenhower Med. Ctr., No. D067455 (D4d1 Jun. 19, 2015)
Plaintiff got hurt in a hospital cafeteria. Defendant 1, the hospital, served a Code of Civil Procedure § 998 offer of judgment on Plaintiff for $15,000, which plaintiff rejected. Plaintiff subsequently amended his complaint to add Defendant 2, the cafeteria operator. Under the cafeteria contract, Defendants 2 agreed to indemnify Defendant 1 in cases like this one. At trial, plaintiff won a $3,000 verdict, joint and several against both defendants.
Trial court holds that, for the purposes fee shifting under § 998, Defendant 1—which served the offer—is a prevailing party. But Defendant 2—which didn’t serve an offer—is not. So only Defendant 1 gets to recover its post-offer costs. But it taxeed Defendant 1’s expert witness fees because under the cafeteria contract, those fees were indemnified by Defendant 2.
On appeal, the first point is easy. A defendant that doesn’t serve a § 998 offer and loses a net recovery at trial is not a prevailing party, in any sense of that term. But the trial court erred in taxing Defendant 1’s expert witness fees. The costs statute permits the award of costs incurred, even if not paid, and § 998 shifts incurred costs. A bunch of cases in the insurance context bear out that a plaintiff can recover expert witness fees, even if the bill was paid by someone else. So Defendant 1 should have recovered its expert witness fees, even if, at the end of the day, it wasn’t on the hook to pay them. The fact that the obliged indemnitor was also a defendant in the case and not, ultimately, a prevailing party on its own, didn’t make a difference.
Reversed in part.
Plaintiff got hurt in a hospital cafeteria. Defendant 1, the hospital, served a Code of Civil Procedure § 998 offer of judgment on Plaintiff for $15,000, which plaintiff rejected. Plaintiff subsequently amended his complaint to add Defendant 2, the cafeteria operator. Under the cafeteria contract, Defendants 2 agreed to indemnify Defendant 1 in cases like this one. At trial, plaintiff won a $3,000 verdict, joint and several against both defendants.
Trial court holds that, for the purposes fee shifting under § 998, Defendant 1—which served the offer—is a prevailing party. But Defendant 2—which didn’t serve an offer—is not. So only Defendant 1 gets to recover its post-offer costs. But it taxeed Defendant 1’s expert witness fees because under the cafeteria contract, those fees were indemnified by Defendant 2.
On appeal, the first point is easy. A defendant that doesn’t serve a § 998 offer and loses a net recovery at trial is not a prevailing party, in any sense of that term. But the trial court erred in taxing Defendant 1’s expert witness fees. The costs statute permits the award of costs incurred, even if not paid, and § 998 shifts incurred costs. A bunch of cases in the insurance context bear out that a plaintiff can recover expert witness fees, even if the bill was paid by someone else. So Defendant 1 should have recovered its expert witness fees, even if, at the end of the day, it wasn’t on the hook to pay them. The fact that the obliged indemnitor was also a defendant in the case and not, ultimately, a prevailing party on its own, didn’t make a difference.
Reversed in part.
Thursday, July 2, 2015
It's Like There Was a Contest to Pick the Most Awkward Neologism
West v. Arent Fox LLP, No. B255973 (D2d5, as modified Jun. 26, 2015)
A SLAPPback—yes, this ugly-looking half-capped term actually shows up in a statute—is an action for malicious prosecution brought against someone who previously prosecuted an action that was dismissed as a SLAPP under Code of Civil Procedure § 425.16. Because the Legislature decided it furthered the purpose of the anti-SLAPP protections to permit these kinds of suits, even though they themselves would invariably draw an anti-SLAPP motion, it passed § 425.18 to make it harder, but not impossible, to attack a SLAPPback with an anti-SLAPP motion.
So § 425.18(c) exempts a SLAPPback from some of the more procedurally onerous parts of § 425.16, such as the discovery stay, the timing provisions, and the shifting of attorney fees. In instances where the motion is denied or only partially granted, § 425.18(g) also replaces the immediate right to appeal under §§ 425.16(i) and 904.1(a)(13) with a more limited writ review that must be sought within twenty days. That rule applied here, because the trial the court granted an anti-SLAPP motion and struck claims that everyone agreed were SLAPPbacks, but did not dispose of the whole case. Since plaintiff did not timely seek a writ, but instead filed a notice of appeal after the twenty days had run purporting to claim appellate jurisdiction under §§ 425.16(i) and 904.1(a)(13), there’s no jurisdiction to hear this case.
Appeal dismissed.
A SLAPPback—yes, this ugly-looking half-capped term actually shows up in a statute—is an action for malicious prosecution brought against someone who previously prosecuted an action that was dismissed as a SLAPP under Code of Civil Procedure § 425.16. Because the Legislature decided it furthered the purpose of the anti-SLAPP protections to permit these kinds of suits, even though they themselves would invariably draw an anti-SLAPP motion, it passed § 425.18 to make it harder, but not impossible, to attack a SLAPPback with an anti-SLAPP motion.
So § 425.18(c) exempts a SLAPPback from some of the more procedurally onerous parts of § 425.16, such as the discovery stay, the timing provisions, and the shifting of attorney fees. In instances where the motion is denied or only partially granted, § 425.18(g) also replaces the immediate right to appeal under §§ 425.16(i) and 904.1(a)(13) with a more limited writ review that must be sought within twenty days. That rule applied here, because the trial the court granted an anti-SLAPP motion and struck claims that everyone agreed were SLAPPbacks, but did not dispose of the whole case. Since plaintiff did not timely seek a writ, but instead filed a notice of appeal after the twenty days had run purporting to claim appellate jurisdiction under §§ 425.16(i) and 904.1(a)(13), there’s no jurisdiction to hear this case.
Appeal dismissed.
SJ Affirmed, but Likely No Costs
Roman v. BRE Properties, No. B246841 (D2d7 Jun. 17, 2015)
It’s probably not too surprising that in order to bring a claim for disability discrimination, Plaintiff needs to establish that he is disabled within the meaning of the statute. When, in this case, Defendant served discovery asking for evidence of Plaintiffs’ disability, Plaintiff didn’t respond. That nonresponse was sufficient to meet Defendant’s burden when moving for summary judgment. And then when Plaintiff’s opposition offered nothing but his wife’s conclusory statement that she had previously told Defendant he “was disabled,” that wasn’t enough to create a disputed fact issue. So SJ was properly granted.
But the trial court erroneously awarded costs to defendants because it didn’t apply the heightened Christiansburg standard that the Supreme Court’s recent decision in Williams held applies to cost awards in FEHA cases. So the award was reversed and remanded for the trial court to decide whether the Christiansburg standard was met, and if not, what costs could be allocated entirely to claims other than those brought under the FEHA, for which costs could be awarded under the ordinary prevailing party standard under Code of Civil Procedure § 1032.
Reversed and remanded in part.
It’s probably not too surprising that in order to bring a claim for disability discrimination, Plaintiff needs to establish that he is disabled within the meaning of the statute. When, in this case, Defendant served discovery asking for evidence of Plaintiffs’ disability, Plaintiff didn’t respond. That nonresponse was sufficient to meet Defendant’s burden when moving for summary judgment. And then when Plaintiff’s opposition offered nothing but his wife’s conclusory statement that she had previously told Defendant he “was disabled,” that wasn’t enough to create a disputed fact issue. So SJ was properly granted.
But the trial court erroneously awarded costs to defendants because it didn’t apply the heightened Christiansburg standard that the Supreme Court’s recent decision in Williams held applies to cost awards in FEHA cases. So the award was reversed and remanded for the trial court to decide whether the Christiansburg standard was met, and if not, what costs could be allocated entirely to claims other than those brought under the FEHA, for which costs could be awarded under the ordinary prevailing party standard under Code of Civil Procedure § 1032.
Reversed and remanded in part.
Wednesday, July 1, 2015
Sometimes Tricky Doesn't Pay
Womack v. Lovell, No. G049587 (D4d3 Jun. 15, 2015)
This seems substantive, but it’s really procedural.
This seems substantive, but it’s really procedural.
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