A stay of some, but not all, of the proceedings in an action will not toll the 5-year statute for bringing a civil action to trial unless the stay made it impossible, impracticable or futile to bring the case to trial, said the Supreme Court in Bruns v. E-Commerce Exchange, Inc. (Feb. 28, 2011, S172684), __ Cal.4th __ [2011 DJDAR 3134].
Six and one-half years after the plaintiff filed her lawsuit a motion was filed to dismiss the action for failure to bring the case to trial within five years. Plaintiff argued that certain periods of time needed to be excluded from the calculation, but the trial court granted the motion. On appeal the dismissal was reversed, the court holding that periods of time during which there were partial stays of proceedings had to be excluded under C.C.P. §583.340(b), reducing the time to less than five years.
The Supreme Court disagreed. The court concluded that the exclusion for periods when "[p]rosecution or trial of the action was stayed or enjoined" is a bright-line rule that excludes only the time when all of the proceedings in the action are stayed. The court remanded the matter to the Court of Appeal, however, to determine whether the partial stays made the bringing of the action to trial impossible, impracticable or futile, and excludable under §583.340(c).
If subsection (b) creates a bright-line rule, subsection (c) does not. Whether or not it was impossible to bring the case to trial is left to the discretion of the trial judge, taking into consideration "all of the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves." The critical factor, said the court, is whether the plaintiff exercised reasonable diligence in prosecuting the case, although diligence alone does not guarantee that the case will not be dismissed. Diligence "is simply one factor for assessing the existing exceptions of impossibility, impracticability, or futility."
In discussing the standard the trial court should employ, the court noted that delay attributable to ordinary incidents necessary to bringing a case to trial are not within the exception. A plaintiff who is unable to bring his or her case to trial within five years will bear the burden of showing that extraordinary obstacles were faced and that diligence was exercised in an effort to overcome these obstacles. "The other side made me jump through hoops," probably won't be enough.
Thursday, March 31, 2011
Monday, March 28, 2011
Please Complete All Required Fields
Failing to check the box for "Attorney fees" on the form judgment submitted to the court with a request to enter default precludes the awarding of attorney's fees on noticed motion, said the Second District Court of Appeal in Garcia v. Politis (Feb. 25, 2011, B224453), __ Cal.App.4th __ [2011 DJDAR 3048].
Plaintiff sued for damages and injunctive relief, alleging that defendant failed to provide a designated handicap parking spot. When no response was filed, plaintiff requested the entry of default and a court judgment. A judgment was entered awarding damages and ordering that defendant provide a handicap parking spot. Plaintiff then moved for attorney's fees, but the trial court denied the motion on the ground that the plaintiff failed to ask for attorney's fees when he filed his request for default, as required by Rule 3.1800, California Rules of Court.
On appeal plaintiff argued that C.C.P. §1033.5(c)(5) provides that attorney's fees may be fixed upon a noticed motion, Rule 3.1702 (b) allows the motion to be brought after entry of judgment and before the time an appeal must be filed, and this procedure is one of the approved ways of obtaining attorney's fees. But this argument, said the court, ignores C.C.P. §585 and Rule 3.1800, which require a party seeking entry of a default judgment to apply for all of the relief sought at the time application is made for entry of default. The legislature's use of the term "may" in §1033.5 was not intended to imply that the four options listed were available, at the prevailing party's election, regardless of the circumstances of the case. Reading the statute to allow the filing of a noticed motion after default judgment, added the court, would be "absurd," since there is no adversarial quality to the proceeding and the defaulted defendant would have no right to participate in the motion.
Plaintiff sued for damages and injunctive relief, alleging that defendant failed to provide a designated handicap parking spot. When no response was filed, plaintiff requested the entry of default and a court judgment. A judgment was entered awarding damages and ordering that defendant provide a handicap parking spot. Plaintiff then moved for attorney's fees, but the trial court denied the motion on the ground that the plaintiff failed to ask for attorney's fees when he filed his request for default, as required by Rule 3.1800, California Rules of Court.
On appeal plaintiff argued that C.C.P. §1033.5(c)(5) provides that attorney's fees may be fixed upon a noticed motion, Rule 3.1702 (b) allows the motion to be brought after entry of judgment and before the time an appeal must be filed, and this procedure is one of the approved ways of obtaining attorney's fees. But this argument, said the court, ignores C.C.P. §585 and Rule 3.1800, which require a party seeking entry of a default judgment to apply for all of the relief sought at the time application is made for entry of default. The legislature's use of the term "may" in §1033.5 was not intended to imply that the four options listed were available, at the prevailing party's election, regardless of the circumstances of the case. Reading the statute to allow the filing of a noticed motion after default judgment, added the court, would be "absurd," since there is no adversarial quality to the proceeding and the defaulted defendant would have no right to participate in the motion.
Friday, March 25, 2011
Nishihama: "I'm Not Dead Yet"
[Note: Subsequent to this post the Supreme Court granted review. See, "Collateral Source Rule Cases Depublished," posted June 16, 2011.]
Bucking the trend, the Second District Court of Appeal felt obliged to find that it is still the law that an injured plaintiff cannot recover more than the amount of medical expenses actually paid, even if the reasonable value of the services is greater. Cabrera v. E. Rojas Properties, Inc. (Feb. 24, 2011, B216445), __ Cal.App.4th __ [2011 DJDAR 2961].
Cabrera doesn't plow any new ground, and apparently the court thought so too, as it originally decided not to publish the opinion. But with three cases going the other way under review by the Supreme Court, perhaps it was convinced that publication was appropriate to address the apparent conflict in the law.
Until Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, it was generally accepted that a plaintiff could not recover medical expenses beyond what was actually paid to the provider. In Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, the court found that the collateral source rule allowed a plaintiff to recover amounts paid for medical services by Medi-Cal, but that the recognized right to recover the reasonable value of required medical care must be interpreted to mean that a plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred, as long as the amount is reasonable. In Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th298, the court relied on Hanif to deny the plaintiff recovery of more than what was paid by her private medical insurance company.
In the wake of these cases, trial courts struggled to harmonize the plaintiff's right to recover an amount limited to that paid by his or her insurer, and the defendant's right to avoid any mention of insurance. In Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, the court noted that a plaintiff should be able to introduce the amounts billed as evidence of the extent of plaintiff's injuries and sanctioned a post-trial procedure where the court would entertain a motion to reduce the amount of any damages to the amount actually paid.
Over the years the cries from the plaintiff's bar became louder that Nishihama was wrongly decided, arguing that the collateral source rule calls for the plaintiff to receive the benefit of his or her thrift and foresight in procuring insurance, not the defendant. The Fourth District came to that conclusion in Howell and reversed a judgment that had reduced plaintiff's damages, with directions to reinstate the jury's verdict. After the Supreme Court granted review, the First and Third Districts adopted the rationale of Howell in Yanez v. SOMA Engineering, Inc. (2010) 185 Cal.App.4th 1313, and King v. Willmett (2010) 187 Cal.App.4th 313, both of which are now also on review and on hold pending the decision in Howell.
But Cabrera shows that Nishihama won't go down without a fight, as it approved not only the rule limiting recovery but also the post-trial reduction procedure, finding that the post-trial hearing was in effect a hearing on defendant's pre-trial motion in limine to exclude evidence of the amounts billed, which was postponed to protect the plaintiff's rights under the collateral source rule.
Howell has been fully briefed by the parties, so the battle should be resolved this year. By the way, Chief Justice Cantil-Sakauye wrote the opinion in King.
Bucking the trend, the Second District Court of Appeal felt obliged to find that it is still the law that an injured plaintiff cannot recover more than the amount of medical expenses actually paid, even if the reasonable value of the services is greater. Cabrera v. E. Rojas Properties, Inc. (Feb. 24, 2011, B216445), __ Cal.App.4th __ [2011 DJDAR 2961].
Cabrera doesn't plow any new ground, and apparently the court thought so too, as it originally decided not to publish the opinion. But with three cases going the other way under review by the Supreme Court, perhaps it was convinced that publication was appropriate to address the apparent conflict in the law.
Until Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, it was generally accepted that a plaintiff could not recover medical expenses beyond what was actually paid to the provider. In Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, the court found that the collateral source rule allowed a plaintiff to recover amounts paid for medical services by Medi-Cal, but that the recognized right to recover the reasonable value of required medical care must be interpreted to mean that a plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred, as long as the amount is reasonable. In Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th298, the court relied on Hanif to deny the plaintiff recovery of more than what was paid by her private medical insurance company.
In the wake of these cases, trial courts struggled to harmonize the plaintiff's right to recover an amount limited to that paid by his or her insurer, and the defendant's right to avoid any mention of insurance. In Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, the court noted that a plaintiff should be able to introduce the amounts billed as evidence of the extent of plaintiff's injuries and sanctioned a post-trial procedure where the court would entertain a motion to reduce the amount of any damages to the amount actually paid.
Over the years the cries from the plaintiff's bar became louder that Nishihama was wrongly decided, arguing that the collateral source rule calls for the plaintiff to receive the benefit of his or her thrift and foresight in procuring insurance, not the defendant. The Fourth District came to that conclusion in Howell and reversed a judgment that had reduced plaintiff's damages, with directions to reinstate the jury's verdict. After the Supreme Court granted review, the First and Third Districts adopted the rationale of Howell in Yanez v. SOMA Engineering, Inc. (2010) 185 Cal.App.4th 1313, and King v. Willmett (2010) 187 Cal.App.4th 313, both of which are now also on review and on hold pending the decision in Howell.
But Cabrera shows that Nishihama won't go down without a fight, as it approved not only the rule limiting recovery but also the post-trial reduction procedure, finding that the post-trial hearing was in effect a hearing on defendant's pre-trial motion in limine to exclude evidence of the amounts billed, which was postponed to protect the plaintiff's rights under the collateral source rule.
Howell has been fully briefed by the parties, so the battle should be resolved this year. By the way, Chief Justice Cantil-Sakauye wrote the opinion in King.
Thursday, March 24, 2011
No Room For Error
Blood alcohol content results determined by an instrument that is certified, maintained, calibrated and operated in compliance with Title 17, California Code of Regulations, are accurate, and don't try to prove otherwise, says the Second District Court of Appeal in Borger v. Department of Motor Vehicles (Feb. 17, 2011, B222315), __ Cal.App.4th __ [2011 DJDAR 2634].
Defendant had been arrested for driving under the influence and submitted to a breath test, which measured his blood alcohol content at 0.9 and 0.8 percent. At the license suspension hearing his expert testified that the machine used, an Intoxilyzer 5000, had a margin-of-error of plus or minus 0.2 percent, so it could not be said with reasonable scientific certainty that defendant's BAC was 0.8 percent or more at the time of the test.
The DMV hearing officer was not impressed, but the trial judge found that since there was nothing in the record to dispute the expert's conclusion that the BAC could be anywhere from 0.6 to 0.10, the DMV failed to prove that defendant's BAC was 0.8 percent or more at the time of the stop. The judge granted defendant's writ of mandate to set aside the suspension.
The Court of Appeal reversed, finding that because the Intoxilyzer 5000 was an approved instrument, the presumptive validity of its results could not be rebutted by establishing the inherent inaccuracy of the machine. To hold otherwise, it said, would change the Code of Regulations by effectively removing the device from the approved list.
A bald conclusion is a bad conclusion
The court also took issue with the expert's conclusion, saying that he offered no reasoning to support it. There was no evidence of any scientific tests of the machine, and the record did not show that experts in the scientific community had reached similar conclusions or that the opinion was supported by scientific literature. "To say that his conclusion is bald is an understatement," said the court. In the absence of a showing of the material on which his opinion is based and the reasoning by which he arrived at his conclusion, the expert's "bald conclusion is speculative and cannot be fairly characterized as 'substantial evidence.'"
In fairness to the expert, until now no court has asserted that an expert is required to state his or her reasoning or specify the material on which his or her opinion is based. Evidence Code §802 provides that an expert "may state on direct examination the reasons for his opinion and the matter upon which it is based," although the trial court "may require that a witness before testifying in the form of an opinion be first examined concerning the matter on which his opinion is based (emphasis added)." If the expert does not state reasons for, and bases of, an opinion, Evidence Code §721(a) affords the opposing party the full opportunity to cross-examine the witness on "the matter upon which his or her opinion is based and the reasons for his or her opinion." To say that a bald statement of opinion is speculation is an overstatement. An expert should not be criticized if the cross-examination fails to show that the opinion is based on improper assumptions or facts.
Regardless of the lack of substantiation for the expert opinion in this case, under Borger a party may not challenge the general reliability of an approved testing instrument by any expert opinion, bald or otherwise, and the presumption that the test results are valid may be rebutted only by evidence that the machine was improperly maintained, calibrated or operated.
Defendant had been arrested for driving under the influence and submitted to a breath test, which measured his blood alcohol content at 0.9 and 0.8 percent. At the license suspension hearing his expert testified that the machine used, an Intoxilyzer 5000, had a margin-of-error of plus or minus 0.2 percent, so it could not be said with reasonable scientific certainty that defendant's BAC was 0.8 percent or more at the time of the test.
The DMV hearing officer was not impressed, but the trial judge found that since there was nothing in the record to dispute the expert's conclusion that the BAC could be anywhere from 0.6 to 0.10, the DMV failed to prove that defendant's BAC was 0.8 percent or more at the time of the stop. The judge granted defendant's writ of mandate to set aside the suspension.
The Court of Appeal reversed, finding that because the Intoxilyzer 5000 was an approved instrument, the presumptive validity of its results could not be rebutted by establishing the inherent inaccuracy of the machine. To hold otherwise, it said, would change the Code of Regulations by effectively removing the device from the approved list.
A bald conclusion is a bad conclusion
The court also took issue with the expert's conclusion, saying that he offered no reasoning to support it. There was no evidence of any scientific tests of the machine, and the record did not show that experts in the scientific community had reached similar conclusions or that the opinion was supported by scientific literature. "To say that his conclusion is bald is an understatement," said the court. In the absence of a showing of the material on which his opinion is based and the reasoning by which he arrived at his conclusion, the expert's "bald conclusion is speculative and cannot be fairly characterized as 'substantial evidence.'"
In fairness to the expert, until now no court has asserted that an expert is required to state his or her reasoning or specify the material on which his or her opinion is based. Evidence Code §802 provides that an expert "may state on direct examination the reasons for his opinion and the matter upon which it is based," although the trial court "may require that a witness before testifying in the form of an opinion be first examined concerning the matter on which his opinion is based (emphasis added)." If the expert does not state reasons for, and bases of, an opinion, Evidence Code §721(a) affords the opposing party the full opportunity to cross-examine the witness on "the matter upon which his or her opinion is based and the reasons for his or her opinion." To say that a bald statement of opinion is speculation is an overstatement. An expert should not be criticized if the cross-examination fails to show that the opinion is based on improper assumptions or facts.
Regardless of the lack of substantiation for the expert opinion in this case, under Borger a party may not challenge the general reliability of an approved testing instrument by any expert opinion, bald or otherwise, and the presumption that the test results are valid may be rebutted only by evidence that the machine was improperly maintained, calibrated or operated.
Monday, March 21, 2011
With All Due Disrespect, I Dissent
The architect of Crawford v. Washington, 541 U.S. 36 (2004), Justice Antonin Scalia, was fit to be tied when he found himself in the minority in Michigan v. Bryant (Feb. 28, 2011, No. 09-150), __ U.S. __ [2011 DJDAR 3092]. Having had two prior opportunities to fully define what constitutes a "testimonial" statement, and having missed his chance, he could only rant in dissent, saying that the majority opinion in Bryant "distorts our Confrontation Clause jurisprudence and leaves it in a shambles."
In Crawford, the court held that the Confrontation Clause of the U.S. Constitution guarantees a criminal defendant the right to confront witnesses who testify against him or her, and hearsay statements that are "testimonial" are inadmissible unless the defendant had an opportunity to cross-examine the declarant. Writing for the majority, Justice Scalia set forth examples of the "core class" of testimonial statements, but did not discuss what constitutes such statements: "We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'"
That day came in Davis v. Washington, 547 U.S. 813 (2006), and Justice Scalia, again writing for the majority, said that statements to the police are nontestimonial if they are "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." What he did not say was which circumstances should be considered in determining the primary purpose of the interrogation, and what constitutes an ongoing emergency.
Rick did it
In Bryant the police located the victim in a gas station parking lot. He had been shot in the abdomen and was in great pain. When asked what happened, he said that 25 minutes earlier "Rick" had come to his house and shot him through the back door. He then drove himself to the gas station. During the next five to ten minutes, five police officers asked the victim what happened, and the victim repeated his story.
The statements were nontestimonial, said the court, because the "primary purpose" of the interrogation was to meet an "ongoing emergency," which extended beyond the initial victim and posed a threat to the responding police and the public. Whether an emergency exists and is ongoing, and whether the primary purpose of the questioning is to meet the emergency, must be judged objectively from the circumstances and from the statements and actions of all of the parties.
The court concluded that given the informality of the situation, the fact that the police needed to determine the threat to the safety of the victim, themselves and the public, and the nature of the questions asked and the answers given, the victim's identification and description of the shooter and the shooting were not testimonial evidence.
Justice Scalia disagreed, saying that the "tale" of police examining the victim to protect him, them and others from a murderer on the loose, "is so transparently false that professing to believe it demeans this institution." Belatedly he argues that the primary purpose of an interrogation must be judged from the declarant's point of view, and looking at his purpose here, "this is an absurdly easy case." From the victim's perspective his statements were necessary only to ensure the arrest and prosecution of the shooter, and were testimonial.
In response to Justice Scalia's criticism that an evaluation of all of the circumstances is too complex, the court had a simple answer: "we, at least, are unwilling to sacrifice accuracy for simplicity. Simpler is not always better...."
In Crawford, the court held that the Confrontation Clause of the U.S. Constitution guarantees a criminal defendant the right to confront witnesses who testify against him or her, and hearsay statements that are "testimonial" are inadmissible unless the defendant had an opportunity to cross-examine the declarant. Writing for the majority, Justice Scalia set forth examples of the "core class" of testimonial statements, but did not discuss what constitutes such statements: "We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'"
That day came in Davis v. Washington, 547 U.S. 813 (2006), and Justice Scalia, again writing for the majority, said that statements to the police are nontestimonial if they are "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." What he did not say was which circumstances should be considered in determining the primary purpose of the interrogation, and what constitutes an ongoing emergency.
Rick did it
In Bryant the police located the victim in a gas station parking lot. He had been shot in the abdomen and was in great pain. When asked what happened, he said that 25 minutes earlier "Rick" had come to his house and shot him through the back door. He then drove himself to the gas station. During the next five to ten minutes, five police officers asked the victim what happened, and the victim repeated his story.
The statements were nontestimonial, said the court, because the "primary purpose" of the interrogation was to meet an "ongoing emergency," which extended beyond the initial victim and posed a threat to the responding police and the public. Whether an emergency exists and is ongoing, and whether the primary purpose of the questioning is to meet the emergency, must be judged objectively from the circumstances and from the statements and actions of all of the parties.
The court concluded that given the informality of the situation, the fact that the police needed to determine the threat to the safety of the victim, themselves and the public, and the nature of the questions asked and the answers given, the victim's identification and description of the shooter and the shooting were not testimonial evidence.
Justice Scalia disagreed, saying that the "tale" of police examining the victim to protect him, them and others from a murderer on the loose, "is so transparently false that professing to believe it demeans this institution." Belatedly he argues that the primary purpose of an interrogation must be judged from the declarant's point of view, and looking at his purpose here, "this is an absurdly easy case." From the victim's perspective his statements were necessary only to ensure the arrest and prosecution of the shooter, and were testimonial.
In response to Justice Scalia's criticism that an evaluation of all of the circumstances is too complex, the court had a simple answer: "we, at least, are unwilling to sacrifice accuracy for simplicity. Simpler is not always better...."
Friday, March 18, 2011
McQueen Rehearing Generates New Opinion, Same Result
On rehearing, the First District Court of Appeal reiterated its earlier ruling that payments from a government agency may not be deducted from a plaintiff's recovery. See, "Victim Entitled to Recover Entire Amount Stolen," posted Feb. 7, 2011. In In re Conservatorship of Estate of McQueen (Mar. 14, 2011, A126825), __ Cal.App.4th __ [2011 DJDAR 3785] the court considered additional authorities and again found that the collateral source rule prohibits a defendant from benefiting from the receipt of public funds by the plaintiff, even when those payments were already being made before the injury occurred. The rule, said the court, "bends to the needs of equity and fairness," and that "as between [defendants] who tortuously inflicted injury on McQueen and taxpayers who fund public programs for indigents such as McQueen, the loss should fall on the tortfeasors."
Thursday, March 17, 2011
Now You See It, Now You Don't
[Note: Subsequent to this post, the Supreme Court granted review. See, "Review Granted in Tien," posted May 27, 2011]
A court need not reconsider a ruling that relied on a case that was subsequently depublished, said the Second District Court of Appeal in Tien v. Tenet Healthcare Corp. (Feb. 16, 2011, B214333), __ Cal.App.4th __ [2011 DJDAR 2608]. Once a case is published it may be cited and relied upon, and its depublication does not operate retroactively.
Plaintiffs sought class certification for employees who allegedly were not paid for missed meal periods and rest breaks. The court conditionally granted class certification of the question of the accuracy of Tenet's electronic time-keeping system in determining whether employees took meal periods and denied certification of the missed rest break class. Tenet moved for clarification or reconsideration and the court took the motion under consideration.
Six days later the Fourth District decided Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, and held that an employer satisfies its obligation to provide a meal period if it makes meal periods available, and does not need to ensure that the meal periods are taken. Tenet filed a memorandum with the court, arguing that under Brinker the accuracy of the time-keeping system was not a material issue, since there was no dispute that Tenet's employees had been offered the opportunity to take meal periods.
Plaintiffs urged the court to defer its ruling on the reconsideration motion to give the Supreme Court time to grant review of Brinker. The court agreed, and on October 22, 2008, review was granted and Brinker was depublished.
Not so fast
There was barely enough time for plaintiffs' counsel to finish patting themselves on the back before the Second District decided Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278, which also held that an employer need only offer a meal period. On November 17, 2008, the trial court declared that Brinkley had changed the law and denied certification of the missing meal period class. Plaintiffs prevailed upon the court to stay any further proceedings pending the anticipated grant of review of Brinkley by the Supreme Court.
When review of Brinkley was granted, plaintiffs asked the court to vacate its November order, arguing that since Brinkley was no longer good law, the court should follow the only published authority on the subject, Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, and reinstate its initial ruling. But by this time the court was convinced that the rationale of Brinker and Brinkley was sound, and declined to change its November decision.
The Court of Appeal saw no problem with the fact that the trial court relied on Brinkley, since it was good law at the time of the November ruling. It also found that the court was correct in adopting the analysis of Brinker and Brinkley, stating that an employer has to provide meal periods but does not have to ensure that they are taken, and that Cicairos did not establish a rule to the contrary.
So Tien can be cited for the proposition that employers need not ensure that employees take their meal breaks. At least until the Supreme Court grants review.
A court need not reconsider a ruling that relied on a case that was subsequently depublished, said the Second District Court of Appeal in Tien v. Tenet Healthcare Corp. (Feb. 16, 2011, B214333), __ Cal.App.4th __ [2011 DJDAR 2608]. Once a case is published it may be cited and relied upon, and its depublication does not operate retroactively.
Plaintiffs sought class certification for employees who allegedly were not paid for missed meal periods and rest breaks. The court conditionally granted class certification of the question of the accuracy of Tenet's electronic time-keeping system in determining whether employees took meal periods and denied certification of the missed rest break class. Tenet moved for clarification or reconsideration and the court took the motion under consideration.
Six days later the Fourth District decided Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, and held that an employer satisfies its obligation to provide a meal period if it makes meal periods available, and does not need to ensure that the meal periods are taken. Tenet filed a memorandum with the court, arguing that under Brinker the accuracy of the time-keeping system was not a material issue, since there was no dispute that Tenet's employees had been offered the opportunity to take meal periods.
Plaintiffs urged the court to defer its ruling on the reconsideration motion to give the Supreme Court time to grant review of Brinker. The court agreed, and on October 22, 2008, review was granted and Brinker was depublished.
Not so fast
There was barely enough time for plaintiffs' counsel to finish patting themselves on the back before the Second District decided Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278, which also held that an employer need only offer a meal period. On November 17, 2008, the trial court declared that Brinkley had changed the law and denied certification of the missing meal period class. Plaintiffs prevailed upon the court to stay any further proceedings pending the anticipated grant of review of Brinkley by the Supreme Court.
When review of Brinkley was granted, plaintiffs asked the court to vacate its November order, arguing that since Brinkley was no longer good law, the court should follow the only published authority on the subject, Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, and reinstate its initial ruling. But by this time the court was convinced that the rationale of Brinker and Brinkley was sound, and declined to change its November decision.
The Court of Appeal saw no problem with the fact that the trial court relied on Brinkley, since it was good law at the time of the November ruling. It also found that the court was correct in adopting the analysis of Brinker and Brinkley, stating that an employer has to provide meal periods but does not have to ensure that they are taken, and that Cicairos did not establish a rule to the contrary.
So Tien can be cited for the proposition that employers need not ensure that employees take their meal breaks. At least until the Supreme Court grants review.
Monday, March 14, 2011
I'll See You in Court!
The trial-phobic owners of a mobile home park in Tarrant Bell Property, LLC v. Superior Court (S179378, Feb. 10, 2011) __ Cal.4th __ [2011 DJDAR 2283] backed up the arbitration provisions in most of its leases with an agreement to refer all disputes to a referee if these provisions were found to be unenforceable. Nevertheless, they will get their day in court, as the Supreme Court affirmed the right of the trial court to deny the appointment of a referee even when there is a valid predispute reference agreement.
The owners were sued by 120 current and former residents of the park for failing to maintain common areas and for providing substandard living conditions. About 100 of the residents signed leases which provided that all tenancy disputes would be submitted to arbitration, but that if the arbitration provisions were unenforceable the issues would be referred to a referee pursuant to C.C.P. §638.
As they feared, the arbitration clause was found to be unenforceable, but the court denied the motion to appoint a referee. Since not all of the plaintiffs had signed an agreement with the reference provision, the trial court found that the purposes of §638 would not be promoted by having two separate proceedings conducted in parallel. Two proceedings, said the court, would result in duplication of effort by the parties, would not reduce the burden on the court, and raised the possibility of inconsistent judgments.
The Supreme Court affirmed the court's exercise of discretion in denying the appointment. Section 638 provides that a referee "may" be appointed, and the legislative history shows an intent to give the trial court the discretion not to enforce valid reference agreements. The trial court was found to have acted "well within its discretion in basing its refusal to appoint a referee on the risk of inconsistent rulings and considerations of judicial economy."
The owners were sued by 120 current and former residents of the park for failing to maintain common areas and for providing substandard living conditions. About 100 of the residents signed leases which provided that all tenancy disputes would be submitted to arbitration, but that if the arbitration provisions were unenforceable the issues would be referred to a referee pursuant to C.C.P. §638.
As they feared, the arbitration clause was found to be unenforceable, but the court denied the motion to appoint a referee. Since not all of the plaintiffs had signed an agreement with the reference provision, the trial court found that the purposes of §638 would not be promoted by having two separate proceedings conducted in parallel. Two proceedings, said the court, would result in duplication of effort by the parties, would not reduce the burden on the court, and raised the possibility of inconsistent judgments.
The Supreme Court affirmed the court's exercise of discretion in denying the appointment. Section 638 provides that a referee "may" be appointed, and the legislative history shows an intent to give the trial court the discretion not to enforce valid reference agreements. The trial court was found to have acted "well within its discretion in basing its refusal to appoint a referee on the risk of inconsistent rulings and considerations of judicial economy."
Thursday, March 10, 2011
The Tide Goes In, the Tide Goes Out
[Note: Subsequent to this post, the Supreme Court denied review, but ordered the opinion depublished. See, "Xinos Depublished," posted May 27, 2011]
Perhaps sensing that the U.S. Supreme Court tide may be shifting on the subject of warrantless automobile searches, the Sixth District Court of Appeal reversed a vehicular manslaughter conviction that was based in part on data seized during the warrantless search of the vehicle's sensing and diagnostic system (SDM). The court held in People v. Xinos (Feb. 8, 2011, H034305), __ Cal.App.4th __ [2011 DJDAR 2164] that the search violated the Fourth Amendment, since there was no probable cause to believe the SDM contained evidence of a crime.
At about 12:30 a.m. on May 6, 2006, a pedestrian wearing dark clothing stepped into a poorly lit intersection against a red light. The defendant's vehicle struck and killed him. Defendant fled the scene, but was soon apprehended, and at 2:35 a.m. his blood alcohol level was measured at 0.18. The investigating officer concluded that although defendant's intoxication was "an associated collision factor," the primary cause of the accident was the victim stepping out into the intersection. She determined that speed was not a factor.
Defendant's vehicle was impounded and sat untouched until one year later, when the investigating officer downloaded the data in the SDM at the request of the District Attorney's Office. The SDM data revealed that the vehicle was traveling between 69 and 76 mph immediately before the crash.
The appellate court concluded that the defendant's motion to suppress should have been granted. Although it found that the SDM was not a closed container, but rather a part of the vehicle itself, it held that a warrantless search could be conducted only if there was probable cause to believe that the SDM contained evidence of a crime. In this case, the officers conducting the search believed that speed was not a factor, did not think any relevant data would be found, and were only complying with an unexplained request of the D.A.
Can you take a hint?
The court may have taken its cue from Arizona v. Gant (2009) __ U.S. __, 129 S.Ct. 1710, where the U.S. Supreme Court restricted the scope of warrantless searches of the passenger compartment of a vehicle incident to a recent occupant's arrest to circumstances where the arrestee is unsecured and within reaching distance of the compartment at the time of the search. After recognizing that that a motorist's privacy interest in his vehicle is less substantial than in his home, the court in Gant stated that "the former interest is nevertheless important and deserving of constitutional protection," and concluded that after an arrestee has been secured a search of a vehicle is justified only when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." A rule that authorizes the police to search everything found in a vehicle, even when there is no basis to believe evidence of the offense might be found, said the court, "creates a serious and recurring threat to the privacy of countless individuals."
The concern expressed in Gant over a rule allowing police to search a person's private effects without a basis for believing that evidence of the crime might be found did not affect the California Supreme Court in People v. Diaz (Jan. 3, 2011, S166600), __ Cal.4th __ [2011 DJDAR 109]. The Diaz court concluded that it was bound by U.S. Supreme Court precedent that permitted the warrantless search of an arrestee's cell phone simply because it was on his person at the time of arrest. Although the phone had been seized and there was no longer any danger that it could be accessed by the subject, the examination of its contents was found to be authorized as a search incident to a lawful arrest. Given the privacy interest in data stored on electronic devices, should Diaz be reviewed by the U.S. Supreme Court one might expect that it may be swept up in the tide of allowing warrantless searches of property secured by the police only when there is reason to believe that evidence of the crime will be found.
Perhaps sensing that the U.S. Supreme Court tide may be shifting on the subject of warrantless automobile searches, the Sixth District Court of Appeal reversed a vehicular manslaughter conviction that was based in part on data seized during the warrantless search of the vehicle's sensing and diagnostic system (SDM). The court held in People v. Xinos (Feb. 8, 2011, H034305), __ Cal.App.4th __ [2011 DJDAR 2164] that the search violated the Fourth Amendment, since there was no probable cause to believe the SDM contained evidence of a crime.
At about 12:30 a.m. on May 6, 2006, a pedestrian wearing dark clothing stepped into a poorly lit intersection against a red light. The defendant's vehicle struck and killed him. Defendant fled the scene, but was soon apprehended, and at 2:35 a.m. his blood alcohol level was measured at 0.18. The investigating officer concluded that although defendant's intoxication was "an associated collision factor," the primary cause of the accident was the victim stepping out into the intersection. She determined that speed was not a factor.
Defendant's vehicle was impounded and sat untouched until one year later, when the investigating officer downloaded the data in the SDM at the request of the District Attorney's Office. The SDM data revealed that the vehicle was traveling between 69 and 76 mph immediately before the crash.
The appellate court concluded that the defendant's motion to suppress should have been granted. Although it found that the SDM was not a closed container, but rather a part of the vehicle itself, it held that a warrantless search could be conducted only if there was probable cause to believe that the SDM contained evidence of a crime. In this case, the officers conducting the search believed that speed was not a factor, did not think any relevant data would be found, and were only complying with an unexplained request of the D.A.
Can you take a hint?
The court may have taken its cue from Arizona v. Gant (2009) __ U.S. __, 129 S.Ct. 1710, where the U.S. Supreme Court restricted the scope of warrantless searches of the passenger compartment of a vehicle incident to a recent occupant's arrest to circumstances where the arrestee is unsecured and within reaching distance of the compartment at the time of the search. After recognizing that that a motorist's privacy interest in his vehicle is less substantial than in his home, the court in Gant stated that "the former interest is nevertheless important and deserving of constitutional protection," and concluded that after an arrestee has been secured a search of a vehicle is justified only when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." A rule that authorizes the police to search everything found in a vehicle, even when there is no basis to believe evidence of the offense might be found, said the court, "creates a serious and recurring threat to the privacy of countless individuals."
The concern expressed in Gant over a rule allowing police to search a person's private effects without a basis for believing that evidence of the crime might be found did not affect the California Supreme Court in People v. Diaz (Jan. 3, 2011, S166600), __ Cal.4th __ [2011 DJDAR 109]. The Diaz court concluded that it was bound by U.S. Supreme Court precedent that permitted the warrantless search of an arrestee's cell phone simply because it was on his person at the time of arrest. Although the phone had been seized and there was no longer any danger that it could be accessed by the subject, the examination of its contents was found to be authorized as a search incident to a lawful arrest. Given the privacy interest in data stored on electronic devices, should Diaz be reviewed by the U.S. Supreme Court one might expect that it may be swept up in the tide of allowing warrantless searches of property secured by the police only when there is reason to believe that evidence of the crime will be found.
Thursday, March 3, 2011
¡Que Buena Idea!
For reasons that eluded the court of appeal in People v. Moreno (Feb. 8, 2011, E049093), __ Cal.App.4th __ [2011 DJDAR 2190], the trial judge thought it would be a great idea to provide a juror with a Spanish language interpreter. Apparently counsel did too, as no objection was made either to providing an interpreter to assist the juror during the trial or to allowing the interpreter to be present in the jury room during deliberations.
Defendant argued on appeal that the juror did not understand English and, since C.C.P. §203 states that persons who are "not possessed of sufficient knowledge of the English language" are not qualified to be a juror, his conviction must be reversed. The appellate court noted, however, that nowhere in the record was there any indication that the juror did not have such knowledge. The juror never asked for an interpreter, the court never said why it was providing him with an interpreter, and during voir dire the juror demonstrated his ability to read, understand and respond in English. In any event, the defendant did not object at trial and failed to exercise a challenge on the ground that the juror was disqualified and thus forfeited his claim.
Although defendant complained on appeal about the juror sitting on the case, it seems he did not claim it was error to allow the juror's interpreter to sit in on deliberations. This argument might have had more legs. The presence of a nonjuror in the jury room has been deemed "an invasion of the defendant's right of trial by jury" and constitutes "an error so far destructive to the invaded right, that the error could not by mere consent be rendered harmless." People v. Bruneman (1935) 4 Cal.App.2d 75 (presence of alternate during deliberations). When the question was presented to the Supreme Court later in the same year, the Court simply adopted the opinion in Bruneman, saying that it "thoroughly presents the situation and determines the question," and that "further consideration by this court is unnecessary." People v. Britton (1935) 4 Cal.2d 622.
In a footnote, the Court of Appeal expressed its concern about providing interpreters for jurors, and said it did not endorse the practice in light of "the potential for problems." (emphasis in original). That's putting it mildly.
Defendant argued on appeal that the juror did not understand English and, since C.C.P. §203 states that persons who are "not possessed of sufficient knowledge of the English language" are not qualified to be a juror, his conviction must be reversed. The appellate court noted, however, that nowhere in the record was there any indication that the juror did not have such knowledge. The juror never asked for an interpreter, the court never said why it was providing him with an interpreter, and during voir dire the juror demonstrated his ability to read, understand and respond in English. In any event, the defendant did not object at trial and failed to exercise a challenge on the ground that the juror was disqualified and thus forfeited his claim.
Although defendant complained on appeal about the juror sitting on the case, it seems he did not claim it was error to allow the juror's interpreter to sit in on deliberations. This argument might have had more legs. The presence of a nonjuror in the jury room has been deemed "an invasion of the defendant's right of trial by jury" and constitutes "an error so far destructive to the invaded right, that the error could not by mere consent be rendered harmless." People v. Bruneman (1935) 4 Cal.App.2d 75 (presence of alternate during deliberations). When the question was presented to the Supreme Court later in the same year, the Court simply adopted the opinion in Bruneman, saying that it "thoroughly presents the situation and determines the question," and that "further consideration by this court is unnecessary." People v. Britton (1935) 4 Cal.2d 622.
In a footnote, the Court of Appeal expressed its concern about providing interpreters for jurors, and said it did not endorse the practice in light of "the potential for problems." (emphasis in original). That's putting it mildly.
Tuesday, March 1, 2011
Trust Me, I Know What I'm Doing
One would think that being sued for $45,000,000 would get someone's attention, but apparently it wasn't enough for the defendant in Dakota Payphone, LLC v. Alcaraz (Feb. 2, 2011, E047943), __ Cal.App.4th __ [2011 DJDAR 1990]. He failed to answer, allowed the 60 day period for ruling on his motion for new trial to expire, and then failed to timely appeal. Despite these blunders, the Fourth District Court of Appeal threw him a $4,000,000 bone.
Dakota sued defendant and others for breach of contract and fraud on account of 330 contracts in which Dakota agreed to buy payphones from defendants and then lease them back to be placed in public locations. Plaintiff alleged the breaches of the contracts resulted in $45M in damages. Plaintiff further alleged that it was fraudulently induced to spend $10,863,000 on payphones, and prayed for "damages in an amount not less than $45,000,000."
When defendant failed to respond to the third amended complaint, the court intrepreted the complaint as seeking a total of $45M, and on September 4, 2008, entered a default judgment in this amount, specifying that $14,968,500 of the $45M was based on the fraud claim. (The opinion does not indicate why the court specified the amount attributable to fraud. Perhaps the plaintiff requested this specification in the hope that the fraud portion would not be dischargeable in bankruptcy.)
After receiving notice of entry of judgment, the defendant timely filed a motion for new trial, but apparently failed to serve it properly. The hearing on the motion was continued to allow for proper service, but was set on a date beyond the 60 day limitation of C.C.P. §660. At the further hearing on December 12, 2008, plaintiff argued that the motion was denied by operation of law. Nevertheless, the court granted the motion for new trial in part, reducing the damages for the fraud portion to the $10,863,000 stated in the complaint. On January 14, 2009, an amended judgment of default was entered, apparently still for $45M but with the portion for fraud reduced to $10,863,000.
Defendant appealed from the judgment entered on January 14. Plaintff cross-appealed from the order granting plaintiff's motion for new trial.
That's what I meant to say
The appellate court agreed with plaintiff that the trial court lost jurisdiction to rule on a motion for new trial, but disagreed that that the court had, in fact, granted a new trial. "The simple fact that the trial court stated that it was granting the motion for a new trial in part does not mean that is, in essence, what the trial court did," said the Court. What it REALLY did was grant a motion to amend a void judgment. The original judgment was void as to the part that specified the amount of fraud damages in an amount greater than that demanded in the complaint, in violation of C.C.P. §580. Since the court can amend a void judgment at any time, the order modifying the judgment was affirmed.
Defendant's appeal from the judgment was dismissed as untimely. His appeal should have been taken from the original judgment on September 4, 2008, and not the amended judgment of January 14, 2009. Although a party may appeal from an amended judgment that substantially modifies the original, in this case the amendment did not constitute a "substantial modification" of the original judgment. The reduction of the fraud portion of the judgment did not materially affect the rights of the parties, since it "merely altered [the parties'] positions in the litigation to accord with the way things are required to be by law." The Court noted that the defendant could have protected his rights by filing a notice of appeal while he was waiting for the court's ruling on his new trial motion.
The defendant may have been subject to a curse that seemed to affect every player in this case. In addition to the errors described above, the appeal noted the following miscues:
Dakota sued defendant and others for breach of contract and fraud on account of 330 contracts in which Dakota agreed to buy payphones from defendants and then lease them back to be placed in public locations. Plaintiff alleged the breaches of the contracts resulted in $45M in damages. Plaintiff further alleged that it was fraudulently induced to spend $10,863,000 on payphones, and prayed for "damages in an amount not less than $45,000,000."
When defendant failed to respond to the third amended complaint, the court intrepreted the complaint as seeking a total of $45M, and on September 4, 2008, entered a default judgment in this amount, specifying that $14,968,500 of the $45M was based on the fraud claim. (The opinion does not indicate why the court specified the amount attributable to fraud. Perhaps the plaintiff requested this specification in the hope that the fraud portion would not be dischargeable in bankruptcy.)
After receiving notice of entry of judgment, the defendant timely filed a motion for new trial, but apparently failed to serve it properly. The hearing on the motion was continued to allow for proper service, but was set on a date beyond the 60 day limitation of C.C.P. §660. At the further hearing on December 12, 2008, plaintiff argued that the motion was denied by operation of law. Nevertheless, the court granted the motion for new trial in part, reducing the damages for the fraud portion to the $10,863,000 stated in the complaint. On January 14, 2009, an amended judgment of default was entered, apparently still for $45M but with the portion for fraud reduced to $10,863,000.
Defendant appealed from the judgment entered on January 14. Plaintff cross-appealed from the order granting plaintiff's motion for new trial.
That's what I meant to say
The appellate court agreed with plaintiff that the trial court lost jurisdiction to rule on a motion for new trial, but disagreed that that the court had, in fact, granted a new trial. "The simple fact that the trial court stated that it was granting the motion for a new trial in part does not mean that is, in essence, what the trial court did," said the Court. What it REALLY did was grant a motion to amend a void judgment. The original judgment was void as to the part that specified the amount of fraud damages in an amount greater than that demanded in the complaint, in violation of C.C.P. §580. Since the court can amend a void judgment at any time, the order modifying the judgment was affirmed.
Defendant's appeal from the judgment was dismissed as untimely. His appeal should have been taken from the original judgment on September 4, 2008, and not the amended judgment of January 14, 2009. Although a party may appeal from an amended judgment that substantially modifies the original, in this case the amendment did not constitute a "substantial modification" of the original judgment. The reduction of the fraud portion of the judgment did not materially affect the rights of the parties, since it "merely altered [the parties'] positions in the litigation to accord with the way things are required to be by law." The Court noted that the defendant could have protected his rights by filing a notice of appeal while he was waiting for the court's ruling on his new trial motion.
The defendant may have been subject to a curse that seemed to affect every player in this case. In addition to the errors described above, the appeal noted the following miscues:
- The court vacated the default of the individual and the corporate defendants, but had only intended to vacate the default of the corporations.
- The clerk of court accepted the defendant's answer and cross-complaint for filing, despite the fact that the defendant's default had been entered.
- The court struck the answer, but neglected to strike the cross-complaint.
- After the court struck the cross-complaint nunc pro tunc, it issued a second order striking the cross-complaint without mentioning its retroactivity. (The Court of Appeal considered the first order to be the accurate order).
- The plaintiff filed its cross-appeal from the court's December 12, 2008, order granting a new trial when it should have appealed from the written order filed a couple of weeks later, since the court required that a written order and judgment be prepared. (The Court deemed the appeal to be taken from the subsequent order).
- The Court of Appeal denied plaintiff's motion to dismiss defendant's appeal on the ground that the appeal was untimely. In a footnote to its opinion, which dismissed defendant's appeal as untimely, it noted that it was reversing itself because after a "review of a complete record and further analysis of the law" the Court determined its ruling on the motion was wrong.
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