Friday, October 17, 2014

A Pleasant Disposition

Ducoing Mortgage v. Superior Court, No. G050457 (D4d3 Sept. 19, 2014)

Two related company plaintiffs and sued their insurance broker for failing to procure the right policy but got nonsuited at trial. The court awarded defendant about $50k in costs. In a prior appeal, the court affirmed dismissal as to one plaintiff for a somewhat technical reason, but “in all other respects” reversed and remanded for further proceedings.


After remand, the defendant began efforts to collect on the cost judgment against the affirmed plaintiff. In judgment debtor proceedings related to the collection, the trial court held that the costs judgment remained enforceable versus the losing plaintiff, who took a writ.


In reaching the merits, the court makes a number of comments about the nature of an appellate court’s disposition in California. Under Code of Civil Procedure § 43, an appellate court can “affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.” This usually occurs in a short paragraph at the end of an opinion. Although it need not be exceedingly detailed, a “disposition is not intended to be a riddle, and the directions in the dispositional language, as conveyed by the remittitur, are to be followed by the trial court on remand.” If a party is confused by the disposition, its proper recourse is a petition for rehearing.


Looking to the prior disposition, the court here holds that its disposition reversing the trial court’s ruling “in all other respects” save the technical reason for bouncing the one plaintiff, in effect, vacated of the costs award too. The court further agrees with the petitioner that it would be “patently unfair” to stick it with a full costs award, given that the defendant still faced full liability on remand from the other plaintiff. Finally, the court notes that § 1032 affords a trial court the discretion to apportion costs. When, like here, two closely affiliated plaintiffs are jointly represented, if one loses but the other potentially prevails, a defendant should only be permitted to recover the marginal costs associated with the joinder of the non-prevailing plaintiff.


Writ granted.

Thursday, October 16, 2014

Outrageous Misconduct

Pope v. Babick, No. G049629 (D4d3 Sept. 18, 2014)

The trial court in this car accident case granted a motion in limine. It ordered that unless defendants could establish foundation outside the jury’s presence, defendants could not elicit opinion testimony on causation issues from the CHP officers who responded to the scene of the accident. But defense counsel asked anyway. Before plaintiff could get an objection out, the officer ascribed fault to a party who had previously settled, not the current defendant. Plaintiff’s objected and the court struck the testimony. The cat, however, was out of the bag; the bell rung; Pandora’s box opened; the genie out of the bottle. Elvis had left building. But, said the trial judge, not enough to get a mistrial. A $500 sanction and a reasonably harsh curative instruction avoided any prejudice to the plaintiff. Plaintiff lost the trial and reiterated the misconduct issue in a new trial motion. Plaintiff appealed.


After disposing of the plaintiff’s appeal on lack of substantial evidence by predictably affirming based on the standard of review, the court of appeal addressed the misconduct claim. It admonishes defendant’s attorney (by name) for “outrageous misconduct.” But it too declines to upset the verdict based on the deferential standard of review that applies to denied mistrials. The trial court here provided a thorough explanation of its reasons to limit its sanctions to a monetary penalty and jury instruction—which were quite helpful, although not required. The court was convinced that the trial court’s actions were within the valid scope of its discretion. Similarly so on the new trial motion, which is also subject to deferential review.


Thus, after reiterating that it “strongly disapprove[s] of [the attorney’s] behavior” and that “[i]f it were up to us, he would have been sanctioned far more than $500” the court nonetheless finds that the trial court did not abuse its discretion. The court further notes that “[b]y stating our position in a published opinion, we believe we have satisfied our obligation to take appropriate corrective action as required by Canon 3D(2) of the California Code of Judicial Ethics.” And for good measure, it holds that “[i]n the interests of justice, each party is to bear its own costs on appeal.”


Affirmed.

Tuesday, September 23, 2014

Debtor Fails to Buy More Time

Jade Fashion & Co. v. Harkham Indus., Inc., No. B248432 (D2d7 Sept. 8, 2014)

The trial court in this debt-collection case granted a plaintiff’s summary judgment motion. The defendant opposed both on the merits and under Code of Civil Procedure § 437c(h), which permits a denial or delay of a summary judgment motion when the non-moving party establishes that it needs more discovery. Defendant claimed that it needed to depose plaintiff’s transactional counsel on the underlying debt
to properly oppose the motion. The trial court disagreed and the court of appeal affirms.

There’s a threshold issue regarding the preparation of appellant’s appendix. It apparently “included all of the papers that it filed in opposition to the summary judgment motion, and excluded almost all of the papers filed by” the plaintiff. Obviously, that’s not the proper way to prepare an appendix. But, since the appellant loses anyway, the court decides to reach the merits.


On the
§ 437c(h) issue, a party seeking a continuance is required to provide a declaration setting forth a basis for the trial court to find that facts essential to the opposition may exist. The declaration must demonstrate that the facts to be obtained are essential to the opposition and explain why there is reason to believe they exist and will be obtained in additional discovery. Here, the defendant provided the declaration, but it was insufficient. It did not explain what evidence was to be obtained from the attorney’s deposition. Further, the factual issues raised in the declaration would not have provided a basis to deny the motion. 

Affirmed.

Friday, September 19, 2014

Let's Stop Rewarding Demurrer Sandbagging

Connerly v. California, No. C073753 (D3 Sept. 3, 2014)

So Ward Connerly and his crew at the Pacific Legal Foundation are peeved about some vague pro-diversity language in the statutory procedures governing the selection of the California Citizens Redistricting Commission. The relevant statute—Government Code § 8252—provides that six of the commissioners should be “chosen to ensure the commission reflect this state’s diversity, including, but not limited to, racial, ethnic, geographic, and gender diversity.” Connerly sued, claiming that the statute violates Prop. 209.


Monday, September 15, 2014

Chin-ups on the Heck Bar

Brown v. County of L.A., No. B249825 (Aug. 29, 2014)

Chalk this one up as one of the more creative prisoner arguments I’ve seen in a while. Plaintiff is doing seventeen years to life for a murder he committed as a teenager. He claims that, because he was underage when he plead guilty, his plea agreement is voidable under Civil Code § 35, which allows minors to disaffirm contracts. Unfortunately for the plaintiff, you can’t use a civil suit to collaterally attack a criminal judgment. That’s what habeas is for. Further, although the plea bargain/contract analogy is oft drawn, criminal law does not wholesale import every aspect of civil contract law. While age is a recognized factor in measuring the voluntariness of a plea, there’s no bright line rule about minors like the one that applies to civil contracts.


Affirmed.

Thursday, September 11, 2014

Aaaaaaaaaaaggggghhhhh Pizza Man!

Patterson v. Domino’s Pizza, No. S204543 (Cal. Aug. 28, 2103)

This 4-3 Cal. Supreme Court case ostensibly isn’t about procedure. It’s about whether an employee of a Domino’s Pizza franchise can be considered an employee of Domino’s itself for the purposes of FEHA. The majority (Justice Baxter) and dissent (Justice Werdegar) don’t much disagree about the law: a franchisor is an employer when it exercises control over “hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee‘s employees.” 


What they disagree about, however, is whether the evidence of control was sufficient that Domino’s was entitled to summary judgment. Effectively, the real debate is over the strength of the inferences that can be drawn in deciding whether there are disputes of material fact. That’s a very significant procedural question, and one on which we could benefit from more guidance. But the discussion in the opinion is not framed that way, so I expect that it will have minimal procedural significance outside of the employment/agency realm.

To be honest, mostly I only wrote this post because the case reminded me fondly of Old Skull, an early ‘90s gutter punk band made up of ten-year-olds, whose second most memorable lyric was a trenchant comment on quality of the defendant’s product. (For those who didn’t spend much of 1989 up late to watch 120 Minutes and PostModern MTV, “I hate you Ronald Reagan” comes first.)

Another Court Weighs in on the Lawyer Statute of Limitations

Parish v. Latham & Watkins, B244841 (D2d3 Aug. 27, 2014)

Prevailing defendants in a trade secrets case sued the plaintiff’s law firm for malicious prosecution. As one would expect, the firm responded by filing an anti-SLAPP motion. There’s no dispute that the mal-pros case arises from petitioning activity, since the gist of the complaint attacks the filing of the trade secrets suit. So the motion turns on the probability of prevailing, which in this case depends on which is the applicable statute of limitations: The one-year period in Code of Civil Procedure § 340.6 or the two-year period in § 335.1.


Section 340.6 provides a one-year limitations period for “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services . . .” As we have discussed several times over the past few months, there is an ongoing debate about how broadly to read this language. One camp reads it literally to apply to garden variety torts so long as they are committed by attorneys while providing professional services. The other reads it more narrowly, limiting its application to malpractice actions. 


Unfortunately for the law firm, while this appeal was pending, two of the judges on this panel joined an opinion that took the narrow path in holding that § 340.6 does not apply to malicious prosecution claims against lawyers, which essentially forecloses the issue. The court goes on to find that the plaintiff came forward with sufficient evidence that the trade secrets case lacked probable cause, and thus that it had established a sufficient likelihood of success to avoid dismissal as a SLAPP.


Reversed.