Baker Marquart v. Kantor, No. B280861 (D2d2 Apr. 25, 2108)
In an arbitration over attorneys’ fees, Client submitted an ex parte (real ex parte, not California ex parte*) brief to the panel, which accepted it. The Panel ruled for Client, relying in part on claims raised in the secret brief. Attorneys never saw the brief until Client submitted it in connection with his motion to confirm the award. The superior court confirmed the award and denied a motion to vacate.
That was error. Although arbitration awards are not subject to appeal on the merits, Code of Civil Procedure § 1286.2(a)(1) requires a court to vacate an award that has been “procured by corruption, fraud, or other undue means.” Among the variety of “undue means,” is improper ex parte contact with the arbitrator, which is a form of extrinsic fraud that deprives a party of an opportunity to fairly present its case. The fact that the brief contained only ex parte arguments—all of Client’s evidence had been served on attorneys—didn’t make it any less so.
Reversed.
*For reasons that have been lost to history, practice California state courts (as well as in several of the federal district courts in California) permit a filing called an “ex parte application.” It is generally the manner in which parties can request that a court address a motion outside of the ordinary statutory briefing schedule. See Cal. R. Ct. 3.1200–3.1207; C.D. Cal. L.R. 7-19. But contrary to the name, these filings require service on all opposing parties, except under extraordinary circumstances. See Cal. R. Ct. 3.1203, 3.1206; C.D. Cal. L.R. 7-19.1.
Wednesday, June 6, 2018
Tuesday, June 5, 2018
The Pick Three Rule in Practice, Again
IIG Wireless v. Yi, No. G053393 (D4d3 Apr. 23, 2018)
This is another one of those grab bag cases where everyone raises way too many issues after a trial and everything gets affirmed. It’s some kind of partnership dispute over a cell phone retail business.
Briefly:
This is another one of those grab bag cases where everyone raises way too many issues after a trial and everything gets affirmed. It’s some kind of partnership dispute over a cell phone retail business.
Briefly:
Friday, June 1, 2018
Post Mistrial Bench Submission Waives Jury Errors
Tierney v. Javaid, No. A147221 (D1d3 May 31, 2018)
A jury trial in a real estate dispute resulted in a hung jury, with the jury seemingly stuck on the question of whether Plaintiff had fully performed up to the time of Defendant’s breach. Instead of starting a new trial, Plaintiff asked the trial court to render a bench decision based on the trial record on his demand for specific performance. In doing do, he essentially submitted the factual issues that underlay his breach of contract claim to the court for decision. The court obliged, and issued a statement of decision denying specific performance because Plaintiff, had not, in fact, fully performed.
On appeal, Plaintiff raises several issues with the way the trial court handled the hung jury. But by asking the court to render a decision, Plaintiff waived those challenges. If he wanted the jury to decide the issues, he should have taken a mistrial and re-tried the case.
Also, in deciding the specific performance issues, the court wasn’t bound by partial findings the jury made in an incomplete special verdict before they hung. While a completed special verdict binds the court on later factual questions that have already been decided by the jury, an incomplete special verdict is not really a verdict at all, so it doesn’t bind anyone.
Affirmed on this issue, but reversed on issues addressed in an unpublished part of the opinion.
A jury trial in a real estate dispute resulted in a hung jury, with the jury seemingly stuck on the question of whether Plaintiff had fully performed up to the time of Defendant’s breach. Instead of starting a new trial, Plaintiff asked the trial court to render a bench decision based on the trial record on his demand for specific performance. In doing do, he essentially submitted the factual issues that underlay his breach of contract claim to the court for decision. The court obliged, and issued a statement of decision denying specific performance because Plaintiff, had not, in fact, fully performed.
On appeal, Plaintiff raises several issues with the way the trial court handled the hung jury. But by asking the court to render a decision, Plaintiff waived those challenges. If he wanted the jury to decide the issues, he should have taken a mistrial and re-tried the case.
Also, in deciding the specific performance issues, the court wasn’t bound by partial findings the jury made in an incomplete special verdict before they hung. While a completed special verdict binds the court on later factual questions that have already been decided by the jury, an incomplete special verdict is not really a verdict at all, so it doesn’t bind anyone.
Affirmed on this issue, but reversed on issues addressed in an unpublished part of the opinion.
Tuesday, May 29, 2018
Unilateral SACC Gets the Sack
Golfer is in a dispute with his Country Club over dues. Golfer
cross-claimed against the Club and its Current and Former Owners. While Former
Owners’ demurrer to Golfer’s first amended cross-claim was pending, Golfer filed
a second amended cross-claim, without seeking leave to do so. The trial court struck the SACC. It
then granted the demurrer to the FACC, without leave, except as to a claim for
declaratory relief. The trial court later granted Former Owners judgment on
the pleadings on the dec. relief claim, finding that it was moot. Golfer
appealed. The trial court then denied Golfer’s request to stay the case as to
the claims as to the Club and the Current Owners pending appeal.
Wednesday, May 23, 2018
To the Intervenors Go the Spoils
People v. Investco Mgm’t & Dev. LLC, No. A143307 (D1d4 Apr. 18, 2018)
The Department of Business Oversight settled a blue sky case against a real estate Scheme and its Promoters. The injunction that was entered entailed the appointment of a special master to sell some assets in order to generate cash to pay off the investors in the Scheme. But it left the Promoters in place to otherwise manage the Scheme.
The Department of Business Oversight settled a blue sky case against a real estate Scheme and its Promoters. The injunction that was entered entailed the appointment of a special master to sell some assets in order to generate cash to pay off the investors in the Scheme. But it left the Promoters in place to otherwise manage the Scheme.
Tuesday, May 22, 2018
The Epistemology of Admitted Evidence
Doe v. Good Samaritan Hosp., No. F073934 (D5 May 21, 2018)
An appeal of a defense judgment in a med-mal case. Defendant put in a very conclusory expert declaration that the hospital met the standard of care. Plaintiff didn’t submit anything in contradiction. But he did argue, in the trial court and now on appeal, that the declaration wasn’t sufficient to meet the Hospital’s affirmative burden on summary judgment. The trial court disagreed. But the Court of Appeal reverses, holding that a bare-bones conclusory expert declaration on the standard of care, that doesn’t explain its reasoning, even if admitted into evidence, isn’t sufficient to meet a moving party’s SJ burden.
Reversed.
I’m not sure this is the right approach conceptually. It seems like this should be more of question of evidence than of summary judgment procedure.
Experts state opinions. In doing so, they are supposed to substantiate them, both as a matter of credibility, and perhaps more importantly, as a threshold requirement to having them admitted into evidence. They need to show their work.
But that stuff is basically a foundational predicate to admissibility. Evidence Code § 801 sets out some preliminary facts that must be established under Evidence Code §§ 403 and 405 before an expert opinion is admissible in evidence. See generally People v. Cottone, 57 Cal.4th 269, 284 (2013). The absence of that foundation is a waiveable objection. Web Serv. Co. v. L.A. Cty., 242 Cal.App.2d 1, 8 (1966). So it seems like, if nobody objects, “it is my opinion that x satisfies the standard of care,” is prima facie evidence that X does indeed the standard of care. Because if that statement isn’t actually probative of what it says, it shouldn’t be in evidence in the first place. Evid. Code §§ 210 (relevant evidence has “a tendency in reason to prove or disprove any disputed fact . . . of consequence . . . . ”); 350 (“No evidence is admissible except relevant evidence.”).
Plaintiff here apparently made an evidentiary objection, but the court never ruled on it. On appeal, he chose to raise the burdens issue and abandon the evidence question. (Perhaps that is because the burden issue is subject to more appellant friendly standard of review.) It was apparently a correct call tactically. Because even if I don’t think it really makes conceptual sense, there’s precedent that supports the “conculsory expert declaration doesn’t move the needle on summary judgment” approach taken by Plaintiff and the court here.
An appeal of a defense judgment in a med-mal case. Defendant put in a very conclusory expert declaration that the hospital met the standard of care. Plaintiff didn’t submit anything in contradiction. But he did argue, in the trial court and now on appeal, that the declaration wasn’t sufficient to meet the Hospital’s affirmative burden on summary judgment. The trial court disagreed. But the Court of Appeal reverses, holding that a bare-bones conclusory expert declaration on the standard of care, that doesn’t explain its reasoning, even if admitted into evidence, isn’t sufficient to meet a moving party’s SJ burden.
Reversed.
I’m not sure this is the right approach conceptually. It seems like this should be more of question of evidence than of summary judgment procedure.
Experts state opinions. In doing so, they are supposed to substantiate them, both as a matter of credibility, and perhaps more importantly, as a threshold requirement to having them admitted into evidence. They need to show their work.
But that stuff is basically a foundational predicate to admissibility. Evidence Code § 801 sets out some preliminary facts that must be established under Evidence Code §§ 403 and 405 before an expert opinion is admissible in evidence. See generally People v. Cottone, 57 Cal.4th 269, 284 (2013). The absence of that foundation is a waiveable objection. Web Serv. Co. v. L.A. Cty., 242 Cal.App.2d 1, 8 (1966). So it seems like, if nobody objects, “it is my opinion that x satisfies the standard of care,” is prima facie evidence that X does indeed the standard of care. Because if that statement isn’t actually probative of what it says, it shouldn’t be in evidence in the first place. Evid. Code §§ 210 (relevant evidence has “a tendency in reason to prove or disprove any disputed fact . . . of consequence . . . . ”); 350 (“No evidence is admissible except relevant evidence.”).
Plaintiff here apparently made an evidentiary objection, but the court never ruled on it. On appeal, he chose to raise the burdens issue and abandon the evidence question. (Perhaps that is because the burden issue is subject to more appellant friendly standard of review.) It was apparently a correct call tactically. Because even if I don’t think it really makes conceptual sense, there’s precedent that supports the “conculsory expert declaration doesn’t move the needle on summary judgment” approach taken by Plaintiff and the court here.
Wage-and-Hour Double Dip Rejected
Castillo v. Glenair, Inc., No. B278239 (D2d2 Apr. 16, 2018)
Plaintiffs here are temps. They brought a wage-and-hour class action against their Temp Service and got a settlement. Now, they want to bring another class action against the Company they were tempted out. They allege the same claims, for the same work done, during the same time frame, based on a theory is that the Company was a joint employer with or alter ego or agent of the Service. But the court put the kybosh on that.
Under Plaintiffs own theory, the Service and the Company were in a privy relationship. The privity means a judgment* against the Service is a judgment against the Company, which means claim preclusion bars this case. Or alternatively, Plaintiffs also claimed the Company acted as the Service’s agent. Since the release in the settlement released Service’s “agents,” it also released the claims against the Company.
Affirmed.
*Under Rule of Court 3.769(h), a class action settlement must be entered as a judgment.
Plaintiffs here are temps. They brought a wage-and-hour class action against their Temp Service and got a settlement. Now, they want to bring another class action against the Company they were tempted out. They allege the same claims, for the same work done, during the same time frame, based on a theory is that the Company was a joint employer with or alter ego or agent of the Service. But the court put the kybosh on that.
Under Plaintiffs own theory, the Service and the Company were in a privy relationship. The privity means a judgment* against the Service is a judgment against the Company, which means claim preclusion bars this case. Or alternatively, Plaintiffs also claimed the Company acted as the Service’s agent. Since the release in the settlement released Service’s “agents,” it also released the claims against the Company.
Affirmed.
*Under Rule of Court 3.769(h), a class action settlement must be entered as a judgment.
Monday, May 21, 2018
Can’t Wait for the Perfect When the 5-Year Rule Looms
Tanguilig v. Nieman Marcus Grp., No. A141383 (D1d4 Apr. 16, 2018)
Under Code of Civil Procedure § 583.310, a case must be dismissed with prejudice if it has not been brought to trial within five years of filing. The five years is subject to various kinds of tolling. Plaintiff in this case—a wage-and-hour class action combined with some PAGA claims that was filed in 2007—needs three different kinds of tolling to get within the five year window.
Her key tolling argument here comes under § 583.340(c), which stops the clock during periods where it is “impossible, impracticable, or futile” to bring the case to trial. That section permits tolling due to circumstances, beyond the plaintiff’s control, that prevent her from expeditiously bringing her case to trial.
Unlike most of Defendant’s employees, Plaintiff quit instead of signing an employment contract containing an arbitration clause with a class action waiver. That caused some typicality issues for her class action. So several years into the case, Plaintiff added an additional class rep who had signed the agreement. But that solution led to bigger problems. It resulted in the trial court compelling a significant part the new rep's case to mandatory non-class arbitration. Notably, almost a year later, the trial court reconsidered its stay and ultimately lifted it. (The reconsideration was ultimately affirmed on appeal almost three years ago.)
Now, Plaintiff seeks tolling under § 583.340(c) for the period in which the stay was in effect. But none of the stuff with the new rep prevented Plaintiff from proceeding to trial on her own (smaller) part of the class, which wasn’t stayed. The fact that Plaintiff preferred to go to trial with a bigger, better class didn’t mean that going to trial was “impossible, impracticable, or futile” under § 538.340(c).
Affirmed.
Under Code of Civil Procedure § 583.310, a case must be dismissed with prejudice if it has not been brought to trial within five years of filing. The five years is subject to various kinds of tolling. Plaintiff in this case—a wage-and-hour class action combined with some PAGA claims that was filed in 2007—needs three different kinds of tolling to get within the five year window.
Her key tolling argument here comes under § 583.340(c), which stops the clock during periods where it is “impossible, impracticable, or futile” to bring the case to trial. That section permits tolling due to circumstances, beyond the plaintiff’s control, that prevent her from expeditiously bringing her case to trial.
Unlike most of Defendant’s employees, Plaintiff quit instead of signing an employment contract containing an arbitration clause with a class action waiver. That caused some typicality issues for her class action. So several years into the case, Plaintiff added an additional class rep who had signed the agreement. But that solution led to bigger problems. It resulted in the trial court compelling a significant part the new rep's case to mandatory non-class arbitration. Notably, almost a year later, the trial court reconsidered its stay and ultimately lifted it. (The reconsideration was ultimately affirmed on appeal almost three years ago.)
Now, Plaintiff seeks tolling under § 583.340(c) for the period in which the stay was in effect. But none of the stuff with the new rep prevented Plaintiff from proceeding to trial on her own (smaller) part of the class, which wasn’t stayed. The fact that Plaintiff preferred to go to trial with a bigger, better class didn’t mean that going to trial was “impossible, impracticable, or futile” under § 538.340(c).
Affirmed.
Friday, May 18, 2018
I See Alter Egos...
Benaroya v. Willis, No. B281761 (D2d4 May 17, 2018)
Bruce Willis has some kind of deal with a production company. They get into a dispute. Like pretty much every Hollywood deal nowadays, the agreement calls for JAMS arbitration.
Willis isn’t getting paid his due. So Willis and ProdCo go to JAMS and start arbitrating. At some point, however, Willis likely figures out that even if we wins, ProdCo—a one-man operation—can’t or won’t pay up. So Willis asks the arbitrator to amend his demand to bring in ProCo’s owner/operator under an alter ego theory. The arbitrator agrees. Ultimately, the arbitrator finds ProdCo liable to Willis for 5 million bucks, and that ProdMan is, in fact, ProdCo’s alter ego. That makes ProdMan joint and several on the judgment. The trial court confirms the award.
The issue on appeal is that ProdMan isn’t a signatory to the contract. Which normally means he can’t be required to arbitrate at all. There is an exception to that rule, however, if the non-signatory is the alter ego of someone who signed the contract. But that doesn’t solve the problem here, because now the alter ego question is baked into the threshold question of whether ProdMan can even be required to arbitrate. And absent ProdMan’s consent, only a court, not an arbitrator, is allowed to make that call. Which means the arbitrator exceeded his authority and thus that the award against ProdMan needs to be vacated.
Reversed.
Bruce Willis has some kind of deal with a production company. They get into a dispute. Like pretty much every Hollywood deal nowadays, the agreement calls for JAMS arbitration.
Willis isn’t getting paid his due. So Willis and ProdCo go to JAMS and start arbitrating. At some point, however, Willis likely figures out that even if we wins, ProdCo—a one-man operation—can’t or won’t pay up. So Willis asks the arbitrator to amend his demand to bring in ProCo’s owner/operator under an alter ego theory. The arbitrator agrees. Ultimately, the arbitrator finds ProdCo liable to Willis for 5 million bucks, and that ProdMan is, in fact, ProdCo’s alter ego. That makes ProdMan joint and several on the judgment. The trial court confirms the award.
The issue on appeal is that ProdMan isn’t a signatory to the contract. Which normally means he can’t be required to arbitrate at all. There is an exception to that rule, however, if the non-signatory is the alter ego of someone who signed the contract. But that doesn’t solve the problem here, because now the alter ego question is baked into the threshold question of whether ProdMan can even be required to arbitrate. And absent ProdMan’s consent, only a court, not an arbitrator, is allowed to make that call. Which means the arbitrator exceeded his authority and thus that the award against ProdMan needs to be vacated.
Reversed.
Thursday, May 17, 2018
Palsgrafian Vistas
Novak v. Continental Tire N. Am., No. A149494 (D1d3 Apr. 12, 2018)
Not sure how procedural this is, but it’s interesting nonetheless.
Not sure how procedural this is, but it’s interesting nonetheless.
Wednesday, May 16, 2018
Games the Man Can't Play
Birts v. Superior Court, No. A152923 (D1d3 Apr. 11, 2018)
A criminal case, but involving civil procedure.
A criminal case, but involving civil procedure.
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