Just six weeks after the Second District Court of Appeal concluded that an attorney's opinions were privileged even if they were not written down, the California Supreme Court suggested in People v. Scott (August 11, 2011, S068863), __ Cal.4th __ [2011 DJDAR 12128] that it might be otherwise.
In Fireman's Fund Insurance Co. v. Superior Court (June 28, 2011, B229880), __ Cal.App.4th __ [2011 DJDAR 9647] the appellate court concluded that the work product privilege protects an attorney's impressions, conclusions, opinions, legal research and theories even if they aren't written down. The court concluded that Code of Civil Procedure §2018.030 did not intend to leave unwritten opinion work product unprotected, or subject to a qualified privilege, and implicitly understood that an attorney's thoughts and impressions were already protected without the need for a statute. The purpose of §2018.030, said the court, was to establish that written work product that did not reflect an attorney's impressions and opinions was only entitled to qualified protection. The court rejected the interpretation of the statute that only writings were entitled to work product protection. See, "I Keep It All Up Here," posted July 27, 2011.
But the Supreme Court seems to take a more limited view of the statute. In Scott the prosecution presented evidence that a bullet found at the crime scene was fired by the pistol found in defendant's garage. Over defendant's objection, the prosecution was permitted to establish that the bullet had been given to a defense expert. Defendant contended that this line of inquiry violated the attorney work product privilege.
Citing People v. Bennett (2009) 45 Cal.4th 577, the court stated that §2018.030 defines work product as "a 'writing' that reflects an attorney's impressions, conclusions, opinions, or legal research or theories" (emphasis in original). A question that does not elicit or attempt to elicit evidence of a writing, therefore, does not violate the work product privilege. The court added that "[t]he mere fact that a piece of evidence was given to the defense says nothing about what the defense team did or did not do with the evidence."
The discussion of the work product privilege in Scott, a death penalty case, was cursory, unlike that in Fireman's Fund, where the appellate court engaged in an extensive analysis of the statute. The Supreme Court may have felt that this was a throw-away issue, since it has long been accepted that whenever the defense challenges an expert opinion the prosecution may point out that the defense had the opportunity to examine the evidence and present its own expert testimony. When the defense does not call its own expert to testify, however, this line of questioning permits the drawing of one of two conflicting inferences: 1) that the defense did not have its own expert examine the evidence, either because counsel believed it would be futile or counsel was incompetent, or 2) that the evidence was given to a defense expert and the result was not favorable to the defense. Choosing between these two inferences would require the jury to speculate, so an objection to questions designed to raise these inferences should be sustained on this ground. Allowing the jury to consider the first inference necessarily requires evidence relating to an attorney's impressions, conclusions, opinions or theories and should be protected. The analysis of Fireman's Fund seems sound, and perhaps the Supreme Court will reconsider the necessity of a writing when the issue is more squarely presented to it.
Sunday, August 28, 2011
Wednesday, August 24, 2011
When Your Best Just Isn't Good Enough
In Mansur v. Ford Motor Co. (July 5, 2011, E049411) __ Cal.App.4th __ [2011 DJDAR 11704] the Fourth District Court of Appeal found that the trial judge did not abuse his discretion in excusing a juror who was unable to commit as to whether or not his reading an article in the newspaper during the trial might influence his decision.
After 39 days of trial in plaintiff's action for damages resulting from a car accident in which plaintiff's Ford Explorer rolled over, a juror reported to the court that he had read the caption to a photograph in the morning newspaper that depicted a roll over accident involving a Ford Explorer. After saying that it "kind of had a minor influence on me," the court asked if he was saying that he was not sure he could be fair. In a not atypical response, the juror said, "No that's not what I'm saying. What I'm saying is, you know, you have seen something, now you try to remove it from your mind. And not, you know, affect you in any kind of way. So, no, I am not saying I can't be fair and impartial."
So the court asked if he was saying that he could be fair. The juror said he would need time to think about it. After additional questions designed to get a definitive answer, the juror expressed that he was getting upset about the questioning, that he tried to "carry himself in a fair and impartial way," and that "all I can do is say that I will try my best to do what you ask me to do."
Plaintiff's counsel suggested that the court leave the juror on the panel, but ask him again later in the trial, after he had more opportunity to think about it, if he could be fair and impartial. The court decided to excuse the juror.
This decision was not an abuse of discretion given the juror's equivocal responses, said the appellate court. The juror indicated that he knew he should not read the caption, but he did so anyway, in violation of the court's admonition. Further, the juror was unable to commit to being fair and impartial. Although the court may have adopted a different procedure, excusing the juror when it did was not improper.
After 39 days of trial in plaintiff's action for damages resulting from a car accident in which plaintiff's Ford Explorer rolled over, a juror reported to the court that he had read the caption to a photograph in the morning newspaper that depicted a roll over accident involving a Ford Explorer. After saying that it "kind of had a minor influence on me," the court asked if he was saying that he was not sure he could be fair. In a not atypical response, the juror said, "No that's not what I'm saying. What I'm saying is, you know, you have seen something, now you try to remove it from your mind. And not, you know, affect you in any kind of way. So, no, I am not saying I can't be fair and impartial."
So the court asked if he was saying that he could be fair. The juror said he would need time to think about it. After additional questions designed to get a definitive answer, the juror expressed that he was getting upset about the questioning, that he tried to "carry himself in a fair and impartial way," and that "all I can do is say that I will try my best to do what you ask me to do."
Plaintiff's counsel suggested that the court leave the juror on the panel, but ask him again later in the trial, after he had more opportunity to think about it, if he could be fair and impartial. The court decided to excuse the juror.
This decision was not an abuse of discretion given the juror's equivocal responses, said the appellate court. The juror indicated that he knew he should not read the caption, but he did so anyway, in violation of the court's admonition. Further, the juror was unable to commit to being fair and impartial. Although the court may have adopted a different procedure, excusing the juror when it did was not improper.
Sunday, August 21, 2011
Who Let the Blawgs Out?
The ABA Journal maintains a Blawg Directory of active legal blogs and each year asks readers to vote for their favorites. For the first time, Developments in California Trial Practice is in the running. Please take a minute to vote. The top 100 legal blogs earn the right to display the highly-desired "Blawg 100" icon on their website, a constant reminder to readers that they are not wasting their time, or at least are in good company.
This year the Journal is also asking readers to suggest practice areas for inclusion in the top 100. Might I suggest "Trial Practice?" Whether it's criminal, civil, or family, every trial offers procedural and evidentiary challenges that deserve special attention. I hope you've enjoyed keeping up on trial issues over the past months and will give me the positive feedback I need to keep slogging through those advance sheets.
In case you haven't already, click this link to vote, and copy and paste this url: www.caltrialpractice.com.
This year the Journal is also asking readers to suggest practice areas for inclusion in the top 100. Might I suggest "Trial Practice?" Whether it's criminal, civil, or family, every trial offers procedural and evidentiary challenges that deserve special attention. I hope you've enjoyed keeping up on trial issues over the past months and will give me the positive feedback I need to keep slogging through those advance sheets.
In case you haven't already, click this link to vote, and copy and paste this url: www.caltrialpractice.com.
Thursday, August 18, 2011
Nishihama Lives!
An injured plaintiff whose medical expenses are paid through private insurance may not recover more for past medical expenses than the amount actually paid to the provider, said the California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. (Aug. 18, 2011, S179115), __ Cal.4th __ [2011 DJDAR 12533].
The court concluded that the negotiated rate differential (the discount given to insurers by medical providers) was not a benefit provided to the plaintiff in compensation for his or her injuries and, therefore, does not come within the collateral source rule. When a medical care provider, by agreement with an insurer, accepts as full payment an amount less than the provider's full bill, the amount accepted may be admitted to prove damages for past medical expenses, but evidence that the payment was made by an insurer is inadmissible under the collateral source rule.
As a result, evidence of the full amount billed is irrelevant on the issue of past medical expenses, but the court expressed no opinion as to whether such evidence would be admissible on other issues, such as noneconomic damages or future medical expenses.
Should the jury award more than the amount accepted in full payment, said the court, the proper procedure to reduce the damages is for defendant to file a motion for new trial on the ground of excessive damages. If this motion is granted, the trial court may then allow the plaintiff to choose between accepting the reduced amount or the new trial.
The court concluded that the negotiated rate differential (the discount given to insurers by medical providers) was not a benefit provided to the plaintiff in compensation for his or her injuries and, therefore, does not come within the collateral source rule. When a medical care provider, by agreement with an insurer, accepts as full payment an amount less than the provider's full bill, the amount accepted may be admitted to prove damages for past medical expenses, but evidence that the payment was made by an insurer is inadmissible under the collateral source rule.
As a result, evidence of the full amount billed is irrelevant on the issue of past medical expenses, but the court expressed no opinion as to whether such evidence would be admissible on other issues, such as noneconomic damages or future medical expenses.
Should the jury award more than the amount accepted in full payment, said the court, the proper procedure to reduce the damages is for defendant to file a motion for new trial on the ground of excessive damages. If this motion is granted, the trial court may then allow the plaintiff to choose between accepting the reduced amount or the new trial.
Sunday, August 14, 2011
You Can Run, But You Can't Hide
A judgment creditor may move to amend a judgment to add the name of an individual who is the alter ego of a corporate judgment debtor, even if the alter ego doctrine was not alleged in the complaint and the individual was found not liable for fraud, said the Second District Court of Appeal in Misik v. D'Arco (July 27, 2011, B224203), __ Cal.App.4th __ [2011 DJDAR 11250].
Defendant Martin Ballardo asked plaintiff to loan him $150,000. Plaintiff delivered the money and received two promissory notes from defendant Sayrahan Group, LLC, signed by defendant Thomas D'Arco as CEO. When the interest payments stopped and plaintiff's demands for the return of the $150,000 were ignored, plaintiff sued Ballardo and Sayrahan for breach of contract, and Ballardo and D'Arco for fraud. After a court trial, judgment was entered against Sayrahan for breach of contract and against Ballardo for fraud. The court found that D'Arco was not liable for fraud.
During a judgment debtor examination of Sayrahan, through its principal D'Arco, plaintiff learned that D'Arco owned 100 percent of Sayrahan and made all the binding decisions for the company. Sayrahan operated out of D'Arco's residence, had no officers or employees other than D'Arco, and no one ever prepared or kept corporate meeting minutes. Shortly after receiving the plaintiff's money, Sayrahan's liabilities exceeded its assets and its monthly starting or ending account balance was never more than $3,266.66. Plaintiff moved to amend the judgment to add D'Arco as a judgment debtor. The motion was denied, apparently because the judge believed that he was barred from considering the motion.
The order was reversed with directions to conduct a hearing as to whether D'Arco should be added to the judgment pursuant to the alter ego doctrine. Under this doctrine a corporate entity may be disregarded when there is such a unity of interest and ownership between the entity and the individual that to adhere to the fiction of the separate existence of the corporation would promote injustice. Where the trial court finds that a corporation is the alter ego of an individual, it may amend the judgment to insert the correct name of the defendant.
Although the alter ego doctrine is often alleged in the complaint, there is no requirement that alter ego be pled and proved before entry of judgment, said the court. A judgment may be amended when the alter ego doctrine applies and it is shown that the individual had control of the litigation and was virtually represented in the lawsuit. Finally, because the alter ego doctrine does not require proof of fraud, it was irrelevant in this case that D'Arco was found not liable for fraud.
Defendant Martin Ballardo asked plaintiff to loan him $150,000. Plaintiff delivered the money and received two promissory notes from defendant Sayrahan Group, LLC, signed by defendant Thomas D'Arco as CEO. When the interest payments stopped and plaintiff's demands for the return of the $150,000 were ignored, plaintiff sued Ballardo and Sayrahan for breach of contract, and Ballardo and D'Arco for fraud. After a court trial, judgment was entered against Sayrahan for breach of contract and against Ballardo for fraud. The court found that D'Arco was not liable for fraud.
During a judgment debtor examination of Sayrahan, through its principal D'Arco, plaintiff learned that D'Arco owned 100 percent of Sayrahan and made all the binding decisions for the company. Sayrahan operated out of D'Arco's residence, had no officers or employees other than D'Arco, and no one ever prepared or kept corporate meeting minutes. Shortly after receiving the plaintiff's money, Sayrahan's liabilities exceeded its assets and its monthly starting or ending account balance was never more than $3,266.66. Plaintiff moved to amend the judgment to add D'Arco as a judgment debtor. The motion was denied, apparently because the judge believed that he was barred from considering the motion.
The order was reversed with directions to conduct a hearing as to whether D'Arco should be added to the judgment pursuant to the alter ego doctrine. Under this doctrine a corporate entity may be disregarded when there is such a unity of interest and ownership between the entity and the individual that to adhere to the fiction of the separate existence of the corporation would promote injustice. Where the trial court finds that a corporation is the alter ego of an individual, it may amend the judgment to insert the correct name of the defendant.
Although the alter ego doctrine is often alleged in the complaint, there is no requirement that alter ego be pled and proved before entry of judgment, said the court. A judgment may be amended when the alter ego doctrine applies and it is shown that the individual had control of the litigation and was virtually represented in the lawsuit. Finally, because the alter ego doctrine does not require proof of fraud, it was irrelevant in this case that D'Arco was found not liable for fraud.
Wednesday, August 10, 2011
A Little More Effort, Please
A post-trial motion that is not accompanied by a memorandum that satisfies the requirements of Rule 3.1113, California Rules of Court, may be denied without considering the merits, said the Second District Court of Appeal in Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (July 21, 2011, B228606), __ Cal.App.4th __ [2011 DJDAR 11036].
After the jury awarded plaintiff $1,000,000 on its claims, defendant moved for a new trial and for judgment notwithstanding the verdict on the ground that the evidence was insufficient to support the verdict as to both liability and damages. Each motion was supported by a memorandum of points and authorities containing about one-half page of text quoting the statutory provisions that require a JNOV when a directed verdict would have been justified and a new trial when there is insufficient evidence or the damages are excessive. The trial court denied the motions, finding that they failed to comply with Rule 3.1113.
The rule requires that a motion be supported by a memorandum that contains "a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced." The absence of such a memorandum may be construed as "an admission that the motion ... is not meritorious." The court of appeal said that this rule frees the trial court from any obligation to "comb the record and the law for factual and legal support that a party failed to identify or provide," and ensures that the court does not become a tacit advocate for the moving party.
The appellate court concluded that post-trial motions come within the plain meaning of the rule's reference to "motions." Although the rule does not expressly identify post-trial motions as motions coming within its meaning, the court found "strong indications" that they do: 1) Rule 3.1114 does not exclude post-trial motions, 2) the predecessor to Rule 3.1113 had expressly excluded motions for new trial, but this exclusion was eliminated when the rules were restructured, and 3) Rule 3.1600 provides that a motion for new trial may be denied if a memorandum is not filed.
It must be noted as to the third point that the court of appeal erroneously stated that Rule 3.1600 and Rule 3.1113 "both appear in Division 11 of the Rules of Court ... thereby indicating an intention that both new trial motions and other motions come within the same category." In fact, Rule 3.1600 appears in Division 16. The court also failed to consider that Rule 3.1100 provides that the rules in Division 11 "apply to proceedings in civil law and motion, as defined in Rule 3.1103," and that the latter rule defines "law and motion" as including proceedings on "applications before trial for an order" and certain specified post-trial proceedings. Motions for new trial or for JNOV are not among the specified proceedings.
After the jury awarded plaintiff $1,000,000 on its claims, defendant moved for a new trial and for judgment notwithstanding the verdict on the ground that the evidence was insufficient to support the verdict as to both liability and damages. Each motion was supported by a memorandum of points and authorities containing about one-half page of text quoting the statutory provisions that require a JNOV when a directed verdict would have been justified and a new trial when there is insufficient evidence or the damages are excessive. The trial court denied the motions, finding that they failed to comply with Rule 3.1113.
The rule requires that a motion be supported by a memorandum that contains "a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced." The absence of such a memorandum may be construed as "an admission that the motion ... is not meritorious." The court of appeal said that this rule frees the trial court from any obligation to "comb the record and the law for factual and legal support that a party failed to identify or provide," and ensures that the court does not become a tacit advocate for the moving party.
The appellate court concluded that post-trial motions come within the plain meaning of the rule's reference to "motions." Although the rule does not expressly identify post-trial motions as motions coming within its meaning, the court found "strong indications" that they do: 1) Rule 3.1114 does not exclude post-trial motions, 2) the predecessor to Rule 3.1113 had expressly excluded motions for new trial, but this exclusion was eliminated when the rules were restructured, and 3) Rule 3.1600 provides that a motion for new trial may be denied if a memorandum is not filed.
It must be noted as to the third point that the court of appeal erroneously stated that Rule 3.1600 and Rule 3.1113 "both appear in Division 11 of the Rules of Court ... thereby indicating an intention that both new trial motions and other motions come within the same category." In fact, Rule 3.1600 appears in Division 16. The court also failed to consider that Rule 3.1100 provides that the rules in Division 11 "apply to proceedings in civil law and motion, as defined in Rule 3.1103," and that the latter rule defines "law and motion" as including proceedings on "applications before trial for an order" and certain specified post-trial proceedings. Motions for new trial or for JNOV are not among the specified proceedings.
Sunday, August 7, 2011
Your Husband Might Go Postal
Being married to a postal worker and having strong religious views were regarded by the Second District Court of Appeal as sufficient race-neutral reasons for challenging a prospective juror in People v. Rushing (July 20, 2011, B216299), __ Cal.App.4th __ [2011 DJDAR 10919].
When the prosecutor exercised a peremptory challenge to one of three African-Americans in the 20-person panel, defendant alleged that the challenge was made on the basis of group bias. The trial court found that there was no prima facie showing of discrimination and the prosecutor was not asked to explain the challenge.
The court of appeal held that there was substantial evidence in the record that suggested grounds on which the prosecutor might reasonably have challenged the juror. First, she was married to a mail carrier, and the occupation of a prospective juror, or his or her spouse, can be a permissible reason for exercising a challenge. More specifically, the court noted that other courts have viewed challenges to postal workers as legitimate and race-neutral.
Second, the juror had answered affirmatively to a question in the questionnaire asking if she might be affected if a party, witness, or attorney came from a particular national, racial or religious group different from her own. During voir dire she explained that she answered affirmatively to the religious part, saying that if a person does not believe in God it affects "their whole outlook on everything." After first saying she did not know how her views would affect her, she later told the court she did not believe her views would prevent her from being a fair juror.
Defendant argued that any religious bias on the part of the prospective juror was of no significance, since religious beliefs were not an issue in the case and the beliefs of the witnesses or defendants would not be a part of the trial. But the court concluded that her "religious prejudice against atheists" might have prevented her from being a fair juror if she discovered or assumed that any of the trial participants was a non-believer. The prosecutor was not required to accept her assurance that she would be fair, and her initial uncertainty was a legitimate reason to excuse her.
When the prosecutor exercised a peremptory challenge to one of three African-Americans in the 20-person panel, defendant alleged that the challenge was made on the basis of group bias. The trial court found that there was no prima facie showing of discrimination and the prosecutor was not asked to explain the challenge.
The court of appeal held that there was substantial evidence in the record that suggested grounds on which the prosecutor might reasonably have challenged the juror. First, she was married to a mail carrier, and the occupation of a prospective juror, or his or her spouse, can be a permissible reason for exercising a challenge. More specifically, the court noted that other courts have viewed challenges to postal workers as legitimate and race-neutral.
Second, the juror had answered affirmatively to a question in the questionnaire asking if she might be affected if a party, witness, or attorney came from a particular national, racial or religious group different from her own. During voir dire she explained that she answered affirmatively to the religious part, saying that if a person does not believe in God it affects "their whole outlook on everything." After first saying she did not know how her views would affect her, she later told the court she did not believe her views would prevent her from being a fair juror.
Defendant argued that any religious bias on the part of the prospective juror was of no significance, since religious beliefs were not an issue in the case and the beliefs of the witnesses or defendants would not be a part of the trial. But the court concluded that her "religious prejudice against atheists" might have prevented her from being a fair juror if she discovered or assumed that any of the trial participants was a non-believer. The prosecutor was not required to accept her assurance that she would be fair, and her initial uncertainty was a legitimate reason to excuse her.
Wednesday, August 3, 2011
I Know From Whence I Speak
There is no requirement that a written declaration include a statement that the declarant has personal knowledge of the facts contained therein, said the Second District Court of Appeal in Tutti Mangia Italian Grill, Inc. v. American Textile Maintenance Co. (July 18, 2011, B227191), __ Cal.App.4th __ [2011 DJDAR 10807].
Plaintiff objected to declarations filed by the defendant in support of its petition to confirm the arbitration award on the ground that they failed to state they were based on personal knowledge. The court sustained the objections, but nevertheless confirmed the award. On appeal, plaintiff contended there was insufficient evidence to sustain the petition.
In finding that the order was based on substantial evidence, the court of appeal noted that there is no authority to support the striking of a declaration that lacks a statement that it was made on the basis of personal knowledge. Although personal knowledge is required for a statement to be admissible, such knowledge may be shown by any otherwise admissible evidence, including the statements in the declaration itself. Since it was clear from the statements that the declarants had actual personal knowledge, it was error to sustain the objections.
Plaintiff objected to declarations filed by the defendant in support of its petition to confirm the arbitration award on the ground that they failed to state they were based on personal knowledge. The court sustained the objections, but nevertheless confirmed the award. On appeal, plaintiff contended there was insufficient evidence to sustain the petition.
In finding that the order was based on substantial evidence, the court of appeal noted that there is no authority to support the striking of a declaration that lacks a statement that it was made on the basis of personal knowledge. Although personal knowledge is required for a statement to be admissible, such knowledge may be shown by any otherwise admissible evidence, including the statements in the declaration itself. Since it was clear from the statements that the declarants had actual personal knowledge, it was error to sustain the objections.
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