Friday, February 12, 2016

Lis This!

Rey Sanchez Investments v. Superior Court, No. E063757 (D4d2 Jan. 26, 2016).

If you are going to put a lis pendens on somebody’s property, you had better comply with the statutory service requirements under Code of Civil Procedure § 405.22, including service on everyone with an interest in the property and everyone in the action. And then you need to provide a proof of service. Under § 405.23, a lis pendens is “void and invalid” and subject to expungement if the service rules are not followed. Plaintiff didn’t follow the service rules in this case
—no proof of service—which merits a peremptory writ requiring the trial court to expunge the lis pendens.

Writ granted.

Nothing Retroactive Here

USS Posco Indus. v. Case, No. A140457 (D1d1 Jan. 26, 2016)

Labor Code § 218.5 permits a prevailing party to recover its fees in certain wage cases. While the case was pending, the Legislature amended § 218.5. Prior to the amendment, it was a pure loser-pays statute—the prevailing party, whether plaintiff or defendant, was simply entitled to a fee award. But under the amendment, the defendant can now recover fees only if the court finds the action was brought in bad faith. Citing retroactivity concerns, the trial court applied the old rule and gave defendant its fees. 


But according to the court here, that was error. While there was no evidence that the Legislature intended the amendment to work retroactively, California courts treat cost- and fee-shifting statutes as procedural, not substantive. Procedural changes are essentially prospectivethey apply only to procedural events as they occur, even if the facts of the case pre-date the change. Since, as the cases reason, the new rules apply only to litigation events occurring after the change, there are no perceived retroactivity concerns. Thus, the court here should have applied the new version of § 218.5, and in the absence of a bad faith finding, it should not have awarded fees to Defendant.

Reversed.

Thursday, February 11, 2016

Know when to Fold 'Em.

Bucur v. Ahmad, No. D068689 (D3d1 Jan. 26, 2016)

Plaintiffs in this case are on their fifth lawsuit over more or less the same operative facts. The court of appeal upholds dismissal on several theories, and also permits an award of sanctions under Code of Civil Procedure § 128.7.

 

Tuesday, February 9, 2016

Fake Decks up in the Files?

Kim v. Toyota Motor Corp., No. B247672 (D2d7, as modified Feb. 8, 2016)

This is an automotive products liability case mostly about when plaintiffs can admit evidence of industry custom to show a defect under the risk-benefit test. (The answer,
according to the court, is sometimes,  parting ways with other courts that have said always and never.) The court also, however, briefly tackles two points of procedural interest.
 

Monday, February 8, 2016

(Re) Clearing the Decks

So I just moved, we are expecting a second daughter in May, and I have spent the last month pulling all-nighters in expedited preliminary injunction proceedings. Which is all a way to say that I’ve fallen really behind on posts here. 

Saturday, January 23, 2016

You Need Not Intervene Till You Expect You Were Sold Out

Ziani Homeowners Assoc. v. Brookfield Ziani LLC, No. G050284 (D4d3 Dec. 22, 2015)
 

Some condo owners sought to intervene in a construction defect litigation between their HOA and the condo developer. The trial court denied their motion as untimely because two years had passed since the complaint was filed. But even if its not clearly spelled out in the California case law (till now) that’s not the standard. California’s intervention statute, Code of Civil Procedure § 387 was somewhat modeled on Federal Rule of Civil Procedure 24. So the court relies on a body of analogous—and more of less uniform—federal authority to say that the intervention clock shouldn’t start running until interveners know or at least should have known that their interests weren’t being adequately represented by the current parties. Because the trial court incorrectly decided that the clock started ticking on the date of filing, the court reversed and remanded for timeliness findings based on the correct standard.

Reversed and remanded.

Wednesday, January 20, 2016

Turtles All the Way Down

Unifund v. Dear, No. APP1400181 (Riverside App. Div. Dec. 21, 2015)

So this is one of those collections cases like they talked about on a pretty interesting This American Life where a debt collector buys a debt to enforce it needs to prove that it is a rightful assignee and that the debt records are real. As Ira and crew explained, the collectors in these cases are often unprepared to come up with the goods when the evidence is put to the test. But not in this case, or so says the court. But this one seems to whiff of a hearsay issue.