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.


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.


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.


Shady, Shady Stuff

Lofton v. Wells Fargo, No. A136626 (D1d3 Oct. 22, 2014)

There are two wage-and-hour cases against Wells Fargo. One is a class action. The other is a 600 plaintiff mass joinder case with no certified class. One is in LA, the other in San Francisco. Although they are not coordinated, both cases allegedly resolve at the same mediation. The deal was that the class will settle for $19 million, the 600 plaintiffs will opt out, and then the 600 will settle for $6 million.

But when it comes time to get approval, the individuals don’t opt out. Instead, they file claims in the class settlement, apparently because that
s what their lawyers tell them to do. And nobody tells the court during the approval process that the individual case attorneys—the appropriately named “Initiative Legal Group”—now contend that the whole $6 million was to address their attorneys’ fees.

When one of the individual plaintiffs gets word of ILG
s initiative to steal the settlement fund from their clients, he sues ILG for breach of fiduciary duty. He also intervenes in the (already approved) class action case and gets a TRO from that court preventing ILG from dissipating the $6 million. 

The court here affirms that injunction, finding: (1) that issuing the TRO was within the trial court’s ongoing jurisdiction over a class action settlement under Code of Civil Procedure § 664.6, which includes the authority to act in equity; (2) that the trial court did not abuse its discretion in issuing the TRO; (3) that ILG’s constitutional and privacy objections are bogus; and (4) that ILG’s Evidence Code §1152 settlement privilege objections were harmless or unfounded.


Wednesday, November 12, 2014


Kenne v. Stennis, No. B242262 (D2d5 Oct. 21, 2014)

Unsurprisingly, a complaint based on making false police reports and filing meritless civil harassment petitions arises from protected activity, for anti-SLAPP purposes. Similarly unsurprising is that the plaintiff could not show a probability of success because her claims were barred by the litigation privilege in Civil Code § 47(b), as well as other policy-based privileges. 

Affirmed in part and reversed in part.

Tuesday, November 11, 2014

Notice Not Necessary to Defaulted Discharged Debtor when Actually Acting Against Insurer

Weakly-Hoyt v. Foster, No. F067626 (D5 Oct. 21, 2014)

When a plaintiff seeks to recover against an insurance policy held by a bankrupt defendant, in order to obtain a default judgment, the plaintiff is only required to serve the insurer, not the defendant, with a statement of damages under Code of Civil Procedure § 425.11. Because a defendant whose debts have been discharged in bankruptcy faces no potential liability, that defendant can’t object to the default on the grounds of insufficient notice. Affirmed.

There's No Implied Consent Under the Stored Communications Act, But Coerced Consent Is AOK

Negro v. Superior Court, No. H040146 (D6 as modified Nov. 18, 2014)

Generally, the Stored Communications Act, 18 U.S.C. §§ 2701–12, prohibits the provider of an electronic communications service from divulging the contents of communications stored on its service. This is why you ordinarily can’t subpoena Google for the contents of your opponent’s gmail account, which is just what the real party did in this writ case.

There is an exception, however, for when the subscriber gives its consent. But the consent cannot be implicit. It must be real consent-in-fact. Thus, to the extent the trial court here denied a motion to quash based on implicit consent by the subscriber, it erred.

That said, courts have nevertheless recognized that parties to litigation can be compelled by the court to give their consent, even though that doesn’t jibe with the concept of consent as commonly understood. Here, after the petitioner’s motion to quash was denied, he was ordered by a Florida court to consent to Google’s disclosing his gmail to the real party—his opponent in that litigation. He abided by the order, so there was effective consent to require Google to produce the documents. 

Finally, the court rejects Google's argument that the Act immunizes it from participating in third party discovery. Thus, the court here declines to issue a writ requiring the trial court to quash the subpoena.

As a side point, the subscriber’s consent was provided after he filed his writ petition in this case. In relying upon the evidence of consent as a basis to deny the writ, the court notes an exception to the general rule that the record is static on appeal. An appellate court proceeding in mandate can consider all relevant evidence, including facts not existing until after the petition was filed, particularly when the additional evidence may validate an action that would otherwise have to be set aside. Something to keep in mind when engaged in writ practice in a fast-moving and still developing case.

Writ granted, but only to require the trial court to correct its basis for denying the motion to quash.