Specifying the wrong ground for a motion for new trial turned out not to be fatal for the plaintiff in Collins v. Sutter Memorial Hospital (June 2, 2011, C063783), __ Cal.App.4th __ [2011 DJDAR 8031]. The motion argued the right ground and the defendant had the opportunity to respond to it.
The trial court granted defendant's motion for summary judgment, finding that the documents relied upon by the plaintiff's expert had not been properly authenticated. Before the judgment was entered, plaintiff filed a notice of intention to move for a new trial on the ground that the decision was "against the law." In his memorandum in support of the motion plaintiff argued that the documents had been properly authenticated and that the decision was "against the law and the product of legal error." Plaintiff's motion was granted.
On appeal the court noted that a new trial order may be granted only on the ground specified in the motion and that a claim that the decision is "against the law," as set forth in Code Civ. Proc. §657, subd. 6, applies only when there is an improper verdict or a defective statement of decision. The "confusingly similar" ground that the ruling was an "error in law," as set forth in C.C.P. §657, subd. 7, applies when the decision was erroneous as a matter of law. That's what the plaintiff was arguing here.
Since the plaintiff argued in his memorandum that there was an error in law, and the defendant was on notice of the correct ground and addressed the issues in its opposition, the trial court could properly grant the motion.
The appellate court also found that the motion was not premature, because the order granting the motion was a dispositive ruling that constituted the rendition of judgment. But the order was not a judgment, and the time for ruling on the motion for new trial did not start running pursuant to C.C.P. §660 until the notice of intention to move for a new trial was filed. The order granting a new trial was timely.
Wednesday, June 29, 2011
Sunday, June 26, 2011
Recovering for Cat Repair
After the trial judge ruled in limine that the plaintiff could not recover for expenses incurred in treating his cat for a serious gunshot wound, because the plaintiff could not prove that the value of the cat exceeded the cost of repair, plaintiff declined to proceed and the court dismissed the suit. In Kimes v. Grosser (May 31, 2011, A128296) __ Cal.App.4th __ [2011 DJDAR 7866] the First District Court of Appeal reversed.
Plaintiff's cat, Pumkin, was shot with a pellet gun while perched on a fence between plaintiff's and defendants' property. Emergency surgery cost $6,000, but although Pumkin's life was saved he was left partially paralyzed. ("He" is used for convenience, since the opinion is silent as to whether Pumkin was male or female, or if he/she had been spayed or neutered.) Plaintiff sued for an additional $30,000 for the expenses incurred in caring for his disabled cat.
Describing Pumkin as "an adopted stray of very low economic value," defendants moved to exclude evidence of plaintiff's expenses, contending that liability was limited to the amount by which the shooting reduced Pumkin's fair market value. The appellate court recognized that pets are considered property of their owners and that the general rule is that when personal property is damaged the owner may recover no more than the property was worth before the injury occurred. But this rule does not apply to a pet cat.
When damaged property has no relevant, comparable market value, a plaintiff may recover damages that are "rationally determined," said the court. Although a pet owner may not recover for sentimental or emotional value, the cost of care and treatment is a rational basis for measuring damages, and plaintiff was entitled to have a jury determine whether the amounts expended were reasonable. The court also noted that the jury could award punitive damages for animal cruelty under Civil Code §3340 if it determined that the shooting was willful.
Plaintiff's cat, Pumkin, was shot with a pellet gun while perched on a fence between plaintiff's and defendants' property. Emergency surgery cost $6,000, but although Pumkin's life was saved he was left partially paralyzed. ("He" is used for convenience, since the opinion is silent as to whether Pumkin was male or female, or if he/she had been spayed or neutered.) Plaintiff sued for an additional $30,000 for the expenses incurred in caring for his disabled cat.
Describing Pumkin as "an adopted stray of very low economic value," defendants moved to exclude evidence of plaintiff's expenses, contending that liability was limited to the amount by which the shooting reduced Pumkin's fair market value. The appellate court recognized that pets are considered property of their owners and that the general rule is that when personal property is damaged the owner may recover no more than the property was worth before the injury occurred. But this rule does not apply to a pet cat.
When damaged property has no relevant, comparable market value, a plaintiff may recover damages that are "rationally determined," said the court. Although a pet owner may not recover for sentimental or emotional value, the cost of care and treatment is a rational basis for measuring damages, and plaintiff was entitled to have a jury determine whether the amounts expended were reasonable. The court also noted that the jury could award punitive damages for animal cruelty under Civil Code §3340 if it determined that the shooting was willful.
Thursday, June 23, 2011
Where Do I Sign?
In Puerta v. Torres (May 25, 2011, G043745), __ Cal.App.4th __ [2011 DJDAR 7614] the appellate court reversed an order awarding expert witness fees to the prevailing defendant where the defendant's Code Civ. Proc. §998 offer failed to indicate how the offer could be accepted.
Plaintiff sued for damages suffered in a collision that defendant claimed never occurred. Defendant called an accident reconstruction expert to testify that from his review of photographs and a physical inspection there had been no contact between the vehicles. The court found in favor of defendant.
Defendant's cost memorandum included $5,350 for expert witness fees, and the trial court denied plaintiff's motion to tax costs and awarded the fees after the defendant produced a §998 offer that offered to dismiss in return for a waiver of costs. Although the offer had not been accepted, the denial of plaintiff's motion was error, said the court of appeal, because the offer did not include a provision that let the plaintiff know how he could accept the offer.
A valid §998 offer must contain a provision that allows the accepting party to indicate acceptance by signing a statement that the offer is accepted. The statute was amended in 2006 to require such a provision, and in its absence the offer is invalid, regardless of whether a party intends to accept it or not. Although there is room for interpretation as to how an appropriate statement might be phrased, at least some indication of how to accept is required, and in this case there was nothing.
Plaintiff sued for damages suffered in a collision that defendant claimed never occurred. Defendant called an accident reconstruction expert to testify that from his review of photographs and a physical inspection there had been no contact between the vehicles. The court found in favor of defendant.
Defendant's cost memorandum included $5,350 for expert witness fees, and the trial court denied plaintiff's motion to tax costs and awarded the fees after the defendant produced a §998 offer that offered to dismiss in return for a waiver of costs. Although the offer had not been accepted, the denial of plaintiff's motion was error, said the court of appeal, because the offer did not include a provision that let the plaintiff know how he could accept the offer.
A valid §998 offer must contain a provision that allows the accepting party to indicate acceptance by signing a statement that the offer is accepted. The statute was amended in 2006 to require such a provision, and in its absence the offer is invalid, regardless of whether a party intends to accept it or not. Although there is room for interpretation as to how an appropriate statement might be phrased, at least some indication of how to accept is required, and in this case there was nothing.
Sunday, June 19, 2011
Review Granted in Common Law Release Rule Case
As requested by the court of appeal, on June 8, 2011, the Supreme Court granted review of Leung v. Verdugo Hills Hospital, S192768, which held that the release for consideration of one joint tortfeasor releases all other joint tortfeasors from joint and several liability. In Leung the appellate court found that the release of the plaintiff's doctor resulted in the release of the hospital from all liability for economic damages, where the trial court had denied the motion to declare the settlement with the doctor to be in good faith. See, "Please Release Me," posted April 17, 2011.
Thursday, June 16, 2011
Collateral Source Rule Cases Depublished
On June 8, 2011, the Supreme Court granted review in Cabrera v. E. Rojas Properties, Inc., S191826, and deferred further action pending disposition of Howell v. Hamilton Meats & Provisions, Inc., S179115. Cabrera had affirmed the Nishihama rule limiting a plaintiff's recovery for medical expenses to amounts actually paid by private medical insurance. See, "Nishihama: 'I'm Not Dead Yet'," posted March 25, 2011. In Howell, which was argued in the Supreme Court on May 24, 2011, the court of appeal disagreed with the Nishihama rule and ordered the reinstatement of a jury verdict which awarded the full amount of reasonable medical expenses incurred by the plaintiff.
Also on June 8, the Supreme Court denied review of In re Conservatorship of Estate of McQueen, S192507, but on its own motion ordered the opinion depublished. In McQueen the court of appeal concluded that the collateral source rule prohibited a defendant from benefiting from the receipt of public funds by the plaintiff, and 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.
Also on June 8, the Supreme Court denied review of In re Conservatorship of Estate of McQueen, S192507, but on its own motion ordered the opinion depublished. In McQueen the court of appeal concluded that the collateral source rule prohibited a defendant from benefiting from the receipt of public funds by the plaintiff, and 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.
Monday, June 13, 2011
You Are Ordered ... Blah, Blah, Blah
The trial court properly sanctioned counsel for violating an order that counsel not inquire into a particular area while questioning a witness, said the Fourth District Court of Appeal in Scott C. Moody, Inc. v. Staar Surgical Co. (May 23, 2011, G043230), __ Cal.App.4th __ [2011 DJDAR 7418].
During an unreported sidebar conference, the court instructed counsel not to ask the witness why one of defendant's representatives (Greiling) did not want a restrictive covenant in the contract. Counsel then asked the witness, "Why wasn't the restrictive covenant placed into Mr. Greiling's contract?" Outside the presence of the jury the court asked counsel to acknowledge that he had been instructed not to ask the question, but counsel replied that when he left the sidebar he was not certain as to what the ruling was. The court then inquired of the other two lawyers who were there, including the questioner's co-counsel, and both affirmed that the order was just as the court stated it. After issuing an order to show cause and conducting a hearing, the court imposed the maximum $1,500 sanction under Code Civ. Proc. §177.5.
The trial court did not abuse its discretion given that three of the four persons at the sidebar understood the court's order, said the appellate court. Even if counsel did not understand the order, it was incumbent upon him to request clarification, and his decision to venture into the forbidden area and take his chances justified the imposition of sanctions.
During an unreported sidebar conference, the court instructed counsel not to ask the witness why one of defendant's representatives (Greiling) did not want a restrictive covenant in the contract. Counsel then asked the witness, "Why wasn't the restrictive covenant placed into Mr. Greiling's contract?" Outside the presence of the jury the court asked counsel to acknowledge that he had been instructed not to ask the question, but counsel replied that when he left the sidebar he was not certain as to what the ruling was. The court then inquired of the other two lawyers who were there, including the questioner's co-counsel, and both affirmed that the order was just as the court stated it. After issuing an order to show cause and conducting a hearing, the court imposed the maximum $1,500 sanction under Code Civ. Proc. §177.5.
The trial court did not abuse its discretion given that three of the four persons at the sidebar understood the court's order, said the appellate court. Even if counsel did not understand the order, it was incumbent upon him to request clarification, and his decision to venture into the forbidden area and take his chances justified the imposition of sanctions.
Wednesday, June 8, 2011
No Costs, No Attorney's Fees
A party may not recover attorney's fees if it accepts an offer to compromise pursuant to Code Civ. Proc. §998 that calls for each side to bear its own costs, said the Second District Court of Appeal in Martinez v. Los Angeles County Metropolitan Transportation Authority (May 23, 2011, B221234), __ Cal.App.4th __ [2011 DJDAR 7417].
Defendant offered to settle for "the total sum of $2,501.00, each side to bear their own costs." Plaintiff accepted the offer and later moved for attorney's fees. She contended that the offer excluded only costs, not attorney's fees. The motion was denied and the court of appeal affirmed.
The appellate court acknowledged the "bright-line rule" that a party who accepts a §998 offer is entitled to recover costs and attorney's fees unless they are excluded by the offer. But, said the court, the offer does not have to expressly exclude attorney's fees if it excludes costs. Since attorney's fees are costs under Code Civ. Proc. §1033.5, when an offer provides that each party will bear its own costs, the word "costs" encompasses attorney's fees. The court pronounced another bright-line rule: unless the §998 offer expressly states otherwise, an offer that excludes "costs" also excludes attorney's fees.
Defendant offered to settle for "the total sum of $2,501.00, each side to bear their own costs." Plaintiff accepted the offer and later moved for attorney's fees. She contended that the offer excluded only costs, not attorney's fees. The motion was denied and the court of appeal affirmed.
The appellate court acknowledged the "bright-line rule" that a party who accepts a §998 offer is entitled to recover costs and attorney's fees unless they are excluded by the offer. But, said the court, the offer does not have to expressly exclude attorney's fees if it excludes costs. Since attorney's fees are costs under Code Civ. Proc. §1033.5, when an offer provides that each party will bear its own costs, the word "costs" encompasses attorney's fees. The court pronounced another bright-line rule: unless the §998 offer expressly states otherwise, an offer that excludes "costs" also excludes attorney's fees.
Sunday, June 5, 2011
Hacker Protests Invasion of Privacy
A search warrant executed on an internet service provider for the identification of a subscriber, and the followup search warrant executed six months later at the subscriber's home, were valid, said the Second District Court of Appeal in People v. Stipo (May 16, 2011, B218512), __ Cal.App.4th __ [2011 DJDAR 7001].
The computer network of a school district was unlawfully entered and the hacker gained access to payroll and employee records, birthdates, social security numbers and other confidential data. The district's computer expert determined the hacker's IP address and the police obtained a search warrant directed to the ISP. The provider supplied the name and street address of the subscriber and verified that the account was current. A search warrant for the subscriber's residence yielded digital evidence on the defendant's laptop linking him to the crime.
The trial court denied defendant's motion to suppress the results of the searches. The appellate court affirmed, finding that internet users have no expectation of privacy in the information provided to their service providers. This information is voluntarily turned over in order to direct a third party's servers, and the users should know that it is provided and used for this purpose.
The subsequent search at the residence was not based on stale information, said the court, because it was not likely that the defendant would dispose of the property the police wanted to seize. The defendant was an active, long term customer of the ISP, was unaware of the investigation and had no reason to destroy evidence. Given that traces of the network intrusion are automatically entered on a computer's hard drive and are very difficult to remove, and that the intercepted information was a continual resource for identity theft, there was sufficient probable cause to believe that relevant evidence would be present.
The computer network of a school district was unlawfully entered and the hacker gained access to payroll and employee records, birthdates, social security numbers and other confidential data. The district's computer expert determined the hacker's IP address and the police obtained a search warrant directed to the ISP. The provider supplied the name and street address of the subscriber and verified that the account was current. A search warrant for the subscriber's residence yielded digital evidence on the defendant's laptop linking him to the crime.
The trial court denied defendant's motion to suppress the results of the searches. The appellate court affirmed, finding that internet users have no expectation of privacy in the information provided to their service providers. This information is voluntarily turned over in order to direct a third party's servers, and the users should know that it is provided and used for this purpose.
The subsequent search at the residence was not based on stale information, said the court, because it was not likely that the defendant would dispose of the property the police wanted to seize. The defendant was an active, long term customer of the ISP, was unaware of the investigation and had no reason to destroy evidence. Given that traces of the network intrusion are automatically entered on a computer's hard drive and are very difficult to remove, and that the intercepted information was a continual resource for identity theft, there was sufficient probable cause to believe that relevant evidence would be present.
Thursday, June 2, 2011
Channeling Father Flanagan
After vacating a judgment that sentenced the minor defendant to life in prison without the possibility of parole, the Fourth District Court of Appeal did it again in People v. Nunez (May 10, 2011, G042873), __ Cal.App.4th __ [2011 DJDAR 6678], reversing the sentence imposed on remand. The new sentence, which made the juvenile eligible for parole only after serving 175 years, was found to violate both the United States and the California Constitutions.
Accompanied by an older associate, the 14-year-old defendant intercepted a convoy of illegal immigrants, kidnapped one of the drivers at gunpoint, and let loose a volley of gunshots at the other vehicle as it sped away. The next day, pursued by officers in several vehicles, defendant fired an AK-47 at the officers, striking the vehicles in multiple locations. Defendant was convicted of aggravated kidnapping and four counts of attempted murder, among other crimes.
While imposing five consecutive indeterminate life sentences, and consecutive 20-year enhancements on each, the trial court explained that "there is a tension between the Father Flanagans of the world and the victims of gang violence.... I don't believe in the saying that there is no such thing as a bad boy." But although the Constitution does not require that the State release a juvenile offender during his natural life, it prohibits the permanent denial of parole to a minor who has not committed homicide. Given the recognized diminished culpability of a juvenile, and the lack of any penological rationale, a determinate sentence that effectively precludes the possibility of parole during a juvenile's lifetime is unconstitutional.
Accompanied by an older associate, the 14-year-old defendant intercepted a convoy of illegal immigrants, kidnapped one of the drivers at gunpoint, and let loose a volley of gunshots at the other vehicle as it sped away. The next day, pursued by officers in several vehicles, defendant fired an AK-47 at the officers, striking the vehicles in multiple locations. Defendant was convicted of aggravated kidnapping and four counts of attempted murder, among other crimes.
While imposing five consecutive indeterminate life sentences, and consecutive 20-year enhancements on each, the trial court explained that "there is a tension between the Father Flanagans of the world and the victims of gang violence.... I don't believe in the saying that there is no such thing as a bad boy." But although the Constitution does not require that the State release a juvenile offender during his natural life, it prohibits the permanent denial of parole to a minor who has not committed homicide. Given the recognized diminished culpability of a juvenile, and the lack of any penological rationale, a determinate sentence that effectively precludes the possibility of parole during a juvenile's lifetime is unconstitutional.
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