Sunday, November 23, 2014

Be Careful what You Wish for

Kight v. Cashcall, Inc., No. D063363 (D4d1 Nov. 4, 2014)

This case is a class action alleging violations of California’s dual-consent telephone eavesdropping statute, Penal Code § 632. Three years ago, plaintiffs were successful in an appeal wherein the court adopted many if not all of their liability theories. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011). As pertinent here, the prior appeal determined that § 632 applies whenever a caller has a reasonable expectation that a phone call will not be secretly monitored. The test is objective, but it accounts for the totality of the plaintiff’s circumstances.


On remand, Cashcall moved to decertify the class. It argued that the experiences of the plaintiffs in their calls with Cashcall were so varied in the extent of their expectations of monitoring that individual issues would necessarily predominate such that class treatment would be inappropriate.  The trial court agreed and decertified the class.


The court of appeal first notes that a decertification shouldn’t just be a redo of the original certification. Some circumstances relevant to management of the class must change before the court can consider decertifying. But the intervening appeal’s clarification of the relevant legal standard provided those circumstances here. And when that standard is considered, the trial court did not abuse its discretion in decertifying the class because individual issues did, in fact, predominate. The illustrative experiences of the individual plaintiffs showed such a wide variety of experiences and expectations that there would be no manageable way to afford class treatment.


Affirmed.

Saturday, November 22, 2014

Cops Took My Car. Unconstitutional!

Thompson v. Petaluma Police Dept., No. A137981 (Nov. 4, 2014)

Plaintiff contends that a provision in the Vehicle Code addressing vehicle impoundments is unconstitutional and that the City of Petaluma is acting unconstitutionally by expending funds to enforce it. The City demurred, both on the merits of the claim and on standing. The court here holds that plaintiff has standing to sue as a taxpayer under Code of Civil Procedure § 526a, which permits a taxpayer to sue for illegal expenditures of government money or waste. Although plaintiff is not a resident of Petaluma, he owns a business and pays taxes there. That’s enough under established law. And although plaintiff’s unconstitutionality theory is a dead-ender, he appears to be able to claim that the way the city is enforcing the impoundment statute does not jibe with the statutory text and any pertinent judicial gloss. He thus should be permitted to amend on remand. 


Reversed and remanded.

When it Comes to the Record, Designate or Forfeit

Aspen Grove Condo. Ass’n v. CNL Income Northstar LLC, No. C073530 (D3 Nov. 3, 2014)

This is a lawsuit involving damage to neighboring land due to the failure of a retention basin.  Most of the opinion deals with substantive issues involving injunctive relief, but there is one interesting point of procedure. The appellant was found to have forfeited its appeal on evidentiary issues. It designated only a partial reporters transcript and then failed to include the evidentiary issue in its identification of issues to be raised on appeal in its notice of designation of record, as is required under Rule of Court 8.130(a)(2) when the whole reporters’ transcript isn’t designated. Particularly because parts of the transcript that weren’t prepared involved some of the evidentiary issues, the court finds that the appellant failed to preserve the evidentiary issues.


Affirmed.

We Don't Need Private Attorneys General to Combat Unlicensed Dentistry

Bui v. Nguyen, No. H039310 (D6 Oct. 28, 2014)

Plaintiff won a $200k verdict against a dental assistant who was masquerading as a dentist for negligently performed dental work. He also obtained a permanent injunction requiring the defendant to identify herself as a dental assistant in her advertising and to refrain from wearing a white dental lab coat. Casting the injunction as a public service, plaintiff sought attorneys’ fees under the private attorney general provision, Code of Civil Procedure § 1021.5. The trial court awarded the fees, but at a significantly reduced rate. 


The court of appeal reverses. An award of fees under § 1021.5 is appropriate when (1) plaintiff enforced an important public right; (2) the litigation conveyed an important benefit on the public; (3) private enforcement is necessary; and (4) private enforcement is burdensome, such that it warrants subsidizing successful plaintiffs
attorneys. 

Here, the court finds that the third element is not satisfied. Generally private enforcement is necessary when public enforcement is unavailable or inadequate. The paradigmatic cases tend to involve government defendants because the government is unlikely to enforce the laws it is breaking against itself. When a defendant is a private party, however, the plaintiff’s efforts to get the pertinent regulators involved is relevant to the adequacy of public enforcement. Here, plaintiff did not submit any evidence that there had been efforts to get public regulators like the California Dental Board or the state AG to bring enforcement actions regarding the practice of unlicensed dentistry or false advertising about dental businesses. Nor did he provide any evidence that these regulators routinely ignore citizens’ complaints over these issue. In the absence of evidence of insufficient public enforcement, the trial court abused its discretion in awarding fees under § 1021.5.


Reversed.

Thursday, November 13, 2014

Sanctions Stick for Failure to Withdraw Moot Motion to Quash

Evilsizor v. Sweeney, No. A140059 (D1d1 Oct. 28, 2014)

Interesting discovery issue that comes up a lot. In a divorce case, husband subpoenaed some bank docs from wife. The docs, however, also contained private information about wife’s dad, who filed a motion to quash, without bothering to meet and confer. As soon as he found out, husband amended the subpoena to exclude dad’s info, and made various efforts to resolve any dispute.


But dad did not withdraw the motion to quash, and the husband was required to file an opposition, which sought sanctions under Code of Civil Procedure § 1987.2 for pursuing a substantially unjustified discovery motion. Dad then withdrew the motion before the hearing, which the trial court nonetheless held to address potential sanctions. The trial court ruled that, although the initial motion was not unjustified, husband went to lengths to address dad’s concerns and to avoid litigating the issue, but dad declined to resolve the issue after the subpoena was amended. It awarded a sanction of $2,225 against the father.


The court first addresses an issue of appealability.  Generally, under Code of Civil Procedure § 904.1, orders imposing sanctions of less than $5,000 are appealable under only upon final judgment.  The statute is ambiguous in that it addresses “parties,” but it isn’t clear whether it is directed to the parties to the action or the parties to the discovery motion. The court declines to resolve the issue and exercises its discretion—expressly afforded by § 904.1(b)—to take up the matter on a writ.


On the merits, § 1987.2, the quashal statute, permits the imposition of sanctions when a “motion was made” without substantial justification.  The court decides that “made” means not only when the motion was filed, but includes the time during which it was pursued. So by failing to withdraw the motion after it was no longer substantially justified, dad came within in the ambit of the court’s power to issue sanctions. Further, the trial court was within its rights to order attorneys’ fees, even though husband’s counsel was pretty quick to threaten sanctions and could have avoided the hearing and opposition just by informing the court that he had amended the subpoena to address the objections. Judging that was all within the sound discretion of the trial court and would not be second guessed on appeal.


Affirmed.

Building Permit Does Not Include a Dose of Collateral Estoppel

Bowman v. Cal. Coastal Commission, No. B243015 (D2d6 Oct, 23, 2014)

A county imposed a beach access condition on granting a building permit, which the property owner did not challenge through administrative mandamus.  The owner never actually performed the permitted construction. The property owner later applied for a second permit to replace a structure on the property. The application also requested removal of the access condition. The county approved the request.


But the Sierra Club and the Surfrider Foundation appealed the removal of the condition to the Coastal Commission, which decided that the issue had been settled by the non-appeal of the first permit’s imposition of the condition. The court here holds that although collateral estoppel can arise from a quasi-judicial administrative decision, it would be inequitable to apply the doctrine here. The access easement would not stand up to the Nolan/Dolan takings test. And particularly given that the owner didn’t actually do the work under the first permit, it would be unfair to apply collateral estoppel to the present circumstances.


Reversed.

The "Wrongness" Exception to Collateral Estoppel

Gottschall v. Crane Co., A136516 (D1d2 Oct. 22, 2014)

Asbestos plaintiffs often sue numerous defendants who might have been the supplier of the asbestos that caused their disease.  Here, plaintiff sued a bunch of defendants in San Francisco Superior Court and a few more in the Northern District of California.  The federal case got transferred to the big federal asbestos MDL in Philadelphia, and the MDL panel ultimately dismissed the case based on the sophisticated user defense.  One of the defendants in the state court case then moved for summary judgment on the grounds that the plaintiff was collaterally estopped by the federal decision to deny the defense. The trial court granted the motion.


The court here declines to apply collateral estoppel. The federal court made an incorrect decision on a pure question of California law. Prior court of appeal cases have held that collateral estoppel will not bind California courts to erroneous interpretations of California law by non-California courts. Further, applying collateral estoppel to bind the plaintiff to an erroneous application of California law by a foreign court would work an injustice.


Reversed.