Wednesday, September 30, 2015

You Need More than a Hope to Deny an RFA

Grace v. Mansourian, No. G049590 (D4d3 Sept. 15, 2015)

This is a car accident case where defendant allegedly ran a red light. Plaintiff won a jury verdict. He then sought to recover his fees for his costs of proving liability under Code of Civil Procedure § 2033.420, because Defendant had unjustifiably denied an request that he admit the light was red. All the other witnesses said it was red. But Defendant (somewhat shakily) persisted that it was yellow at best. The trial court denied fee shifting, finding that the difference in memory was sufficient to provide a reasonable basis to deny the RFA.

The court of appeal, however, holds that Defendant’s belief wasn’t reasonable given all of the other overwhelming evidence that the light was, in fact, red. The point isn’t whether there was substantial evidence sufficient to beat summary judgment or avoid nonsuit. That was there. But avoiding SJ didn’t make it reasonable to deny the RFA. Reasonableness requires “more than a hope or a roll of the dice.” Under the circumstances, Defendant’s shifty recollection didn’t cut it.


Tuesday, September 29, 2015

An Object Lesson on the Epistemic Limits of Debt Collectors

Sierra Managed Asset Plan, LLC v. Hale, No. 06-2013-00443856-CL-CC-VTA (Venura App. Div. Aug. 20, 2015) 

In trials in limited civil cases, the parties can submit declarations in lieu of live direct testimony under Code of Civil Procedure § 98. In order to do that, the declarant has to represent that he is available for service of process at an address within 150 miles of the courthouse, so he can be subpoenaed for cross-examination if the other party is so inclined. In this case, the address given by the declarant in this case was a PO box in a store, so the declaration was false and deficient in that respect. The declarant, however, was present at trial and actually cross-examined by the defendant. So the purpose of § 98, if not its letter was met, and there was no prejudice. Under the circumstances, the trial court didn’t err in accepting the declaration.

But the declaration attached various bank documents as business records. The declarant, however, was not an employee of the bank, but of the plaintiff, a collections agent that had taken the matter under an assignment. The declarant thus was unqualified to say anything other than that he had received the documents from the bank. That isn’t enough to lay business records foundation because it doesn’t establish that “[t]he sources of information and method and time of preparation [of the records] were such as to indicate [their] trustworthiness.” See Cal. Evid. Code § 1271. So the documents and related testimony were hearsay that should have been excluded. And since they were the only evidence that the defendant actually owed the debt at issue, their admission was prejudicial.


Kinda reminds me of something I once heard on the radio.

Monday, September 28, 2015

That Defense Isn't Special. Or, for that Matter, a Defense.

Tracy v. City of Pico Rivera, No. B258563 (D2d2 Sept. 15, 2015)

A contractor can’t recover its fees in a payment dispute if it isn’t validly licensed. Defendant contested the validity of Plaintiff’s license. It convinced the court to hold a bifurcate the license issue and try it first without a jury as a special defense not going to the merits under Code of Civil Procedure
§ 597.

Problem is, in a contractor case, lack of a license isn’t a defense, special or otherwise. Being licensed is an affirmative element of Plaintiff’s claim. A claim under which Plaintiff had a jury trial right. So when the trial court relied upon § 597 to hold an advance bench trial on the licensure issue, it deprived Plaintiff of a jury finding on the issue. That was reversible error.


Friday, September 25, 2015

$140 Buys Plaintiff $100k Extra.

AP-Colton LLC v. Ohaeri, No. E059505 (D4d2 Sept. 15, 2015)

Plaintiff filed a limited civil case in a real estate dispute, seeking damages under $25k. Defendants filed a cross-claim seeking $1 million—more than enough to put the case into unlimited civil. But they never paid the $140 reclassification fee. Plaintiff then amended, seeking well over the $25k threshold. It didn’t pay the fee either, asserting that was on Defendants. Plaintiff won a $125k verdict, and Defendants appealed, arguing that the case should have remained limited civil with a $25k max, since nobody ever paid the fee to reclassify the case as unlimited.

The court of appeal says that’s right, mostly. Since nobody paid the reclassification fee, the case should have stayed in limited civil. But it was Defendants who, having purported to turn the case into an unlimited civil with their million-dollar cross-claim, never filed the fee. And indeed, when they took their appeal, Defendants took steps to make sure the case went to the court of appeal and not to the appellate division of the superior court, where limited civil appeals are supposed be heard. Under the circumstances, judicial estoppel precluded Defendants from objecting to an award exceeding $25k on appeal. They took several positions inconsistent with the case remaining limited civil. So equity should hold them to that. Subject, that is, to the Plaintiff ponying up the $140 fee to the clerk on remand.


Wednesday, September 23, 2015


How long will my appeal take from notice to resolution? What are the chances of a particular division of the court of appeal taking up my writ on the merits? How many authorized judges does Modoc County have?

All this, lots more data, plus some cool maps and charts in this year's California Courts Statistical Report from the California Judicial Council.

The Administrative Writ SOL Is Longer for Yes than for No.

Simonelli v. City of Carmel-by-the-Sea, No. H040488 (D6, as modified Sept. 28, 2015)

A homeowner filed a petition for writ of administrative mandamus against sued a city, challenging its issuance of a development permit for the lot next to hers. But she didn’t join the developer. The superior court denied the writ for failure to join an indispensable party, and then refused to permit her to amend because here petition was supposedly too late under a ninety-day statute of limitations in Code of Civil Procedure § 1094.6.

The court of appeal says the trial court was right on the first issue. Granting the writ would invariably affect the developer’s rights, which makes the developer a quintessential indispensable party § 389. But it got the statute of limitations issue wrong. Section 1094.6 applies to a writ challenging a local agency’s denial or revocation of a permit. It says nothing about a petition objecting to a granted permit application. So the homeowner should have been permitted to amend her petition to add the developer.


Friday, September 18, 2015

Cut and Dry

Barker v. Fox & Assocs., No. A142373 (D1d2 Sept. 10, 2015)

Trial court denied an anti-SLAPP motion in a defamation case. Nobody really disputes that the claims—addressing statements made in connection with conservatorship proceedings—arise from protected activity. But plaintiff failed to come forward with both evidence that established the prima facie the elements of his claim, as well as evidence of malice sufficient to overcome the qualified “common interest” privilege under Civil Code § 47(c). So the motion should have been granted.