California Civil Litigation Quote of the Week

Week of May 11, 2009

2009-06-08T16:28:00.000-07:00

"After a review of these authorities, we conclude that National did not subject itself to specific jurisdiction in California merely by accepting premium payments from California and by processing and paying claims submitted by its insureds for services rendered in this state. National did not 'come here' voluntarily, no matter how many insureds did. It was the unilateral decision of Elkman and other insureds to relocate to California which caused National to accept payments from this state and to process and pay claims for services rendered in this state. These circumstances do not support a findin National purposefully availed itself of forum benefits so as to make it subject to specific jurisdiction in California.

Justice H. Walter Croskey
Elkman v. National States Insurance Company (B205919, May 14, 2009)
pp. 20-21

Week of May 4, 2009

2009-06-08T15:50:00.000-07:00

"Thus the court went beyond the record when it cast the boats as floating apartments or condominiums, and appellant's lease of his slip as analogous to a lease for a dwelling. Respondent contends appellant waived the absence of such evidence on appeal, but respondent cites no authority showing a party opposing summary judgment or adjudication waives the moving party's failure to present evidence to support judgment for the moving party.

Justice Laurence D. Rubin
Nicholls v. Holiday Panay Marina (B202356, May 5, 2009)
p. 10

Week of April 27, 2009

2009-06-01T11:34:00.000-07:00

Defendant appeals the judgment, claiming the court erred in spectacular fashion by allowing the wrong plaintiff (standing is contested, as plaintiff is an alleged assignee of the patent owner)to sue the wrong defendant (defendant is the ultimate parent corporation of a French entity that manufactured the licensed products at issue) in the wrong court (federal courts have exclusive jurisdiction over cases in which the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law).

Justice Raymond J. Ikola

Applera Corporation v. MP Biomedicals, LLC (G038984, April 30, 2009)
p. 2

Week of April 20, 2009

2009-05-28T19:48:00.000-07:00

"Defendants' argument is curious for another reason. If the rule summarized in Gogri and Franklin applies (which it does not), then Fries's dismissal was invalid because her right to dismiss was foreclosed by the tentative ruling. In that case, subsequent discovery orders are not void - but the basis for defendants' costs awards also disappears. This would seem to be a poor bargain, and, in fact, it is not what defendants appear to be seeking. Instead, it seems defendants would like this court to find the dismissal sufficiently valid to support their costs awards, but not so valid as to deprive the court of jurisdiction to rule on the discovery motions. Not surprisingly, they cite no law for this 'a little bit dismissed' theory."

Justice Peter J. Siggins

Fries v. Rite Aid Corporation (A120488, April 22, 2009
p. 12

Week of April 13, 2009

2009-05-07T20:39:00.000-07:00

"As a result of these weighings, modern law, if not replete with examples of 'wrongs' for which there is no remedy, at least offers numerous examples. Thus, although a spouse may sue for loss of consortium deriving from the injury to his or her spouse, an unmarried cohabitant may not. (Cf. Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 404-405; Elden v. Sheldon, supra, 46 Cal.3d at pp. 277-279.) Although it is easily forseeable that a child may suffer grievous harm when a parent is personally badly injured - similar to a spouse's loss of consortium - no recovery is allowed to a child for damages based on the immediate injury to a parent. (Borere v. American Airlines, Inc. (1977) 19 Cal.3d 441, 444; Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App. 4th 26, 32.) And, while that same child may recover for personal distress if he or she witnesses the injury to the parent, a sibling who is not present at the moment of injury cannot. (See Dillon, supra, 68 Cal.2d 728, and subsequent cases.

Justice Betty Ann Richli

The Mega Life and Health Insurance Company v. Superior Court of Riverside County (E045969, April 14, 2009)
p. 6

Week of August 18, 2008

2008-09-05T00:30:00.000-07:00

"As we have noted, Pelton-Shepherd did not file a motion for leave to reopen discovery so that its motion to compel could be heard after the discovery motion cutoff date. It is disingenuous for Pelton-Shepherd to suggest the trial court properly exercised its discretion in granting a motion Pelton-Shepherd never made."

Justice Ronald B. Robie

Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (C055449, Aug. 19, 2008)
p. 33

Week of August 11, 2008

2008-08-20T14:31:00.002-07:00

"The arbitration clause in issue was part of an agreement between two business entities governing their business relationship. While the language of the arbitration provision might be broadly construed to cover every type of business dispute that might arise between the two signators, it cannot seriously be argued that the parties intended it to cover tort claims arising from an alleged violent physical assault by an employee of one company against an employee of the other in the context of an intimate domestic relationship between the them."

Justice Sandra L. Margulies

RN Solution, Inc. v. Catholic Healthcare West (August 15, 2008, A118077)
p. 13

Week of December 3, 2007

2007-12-12T23:33:00.000-08:00

"The City nevertheless argues that the property was not in a dangerous condition because vehicles rarely hit hydrants at the terminal. This argument ignores the evidence that prior to the reconfiguration of the terminal, no hydrants were situated in the path of traffic. Rather, they were located in container storage areas out of the path of traffic. Thus, the absence of a large number of prior accidents involving fire hydrants would not be a material factor in determining whether the location of the hydrant was a dangerous condition. The City also points out that no other vehicles collided with this particular hydrant before or after Young’s accident. We find no significance to this fact. The hydrant was exposed to traffic for only 30 hours before Young’s accident and for two months after the accident. Following the accident, SSA requested that flashing barricades be installed in front of the hydrant until it could be relocated. It is not clear from the record whether such barricades were actually installed, but if so, such an obvious warning would undoubtedly have a bearing on the number of accidents."

Justice Kathryn Doi Todd
City of Long Beach v. Stevedoring Services of America (Dec. 4, 2007, B187003)
p.12

Week of November 26, 2007

2007-12-04T01:00:00.001-08:00

"ACSC knew its older managers objected to its compensation reduction plan. Jurors could reasonably infer it used pretexts to deny Wysinger a transfer and created a hostile work environment in retaliation for his EEOC complaint. Kane told Wysinger, "[W]e are going to crush" the managers opposed to the plan. He told Coleman, "It doesn't matter what you did for this company in the last 30 . . . years. None of that matters. And you can die at your desk. We'll replace you tomorrow. Nobody cares." The jury could find that this callous and retaliatory conduct merits an award of punitive damages"

Presiding Justice Arthur Gilbert
Wysinger v. Automobile Club of Southern California (Nov. 29, 2007, B191028)
P. 14

ABA Journal Blawg 100

2007-12-04T00:16:00.000-08:00

I was surprised and pleased to learn that this blawg had been selected for the ABA Journal Blawg 100. The complete list is on the ABA Journal site, where you can vote for your favorite blawgs in twelve categories. If you'd like to vote for this blawg (and I'd be delighted if you did) you can do it here.

Week of November 19, 2007

2007-12-02T15:54:00.000-08:00

"It has apparently become common practice in the trial courts for litigants to file a “notice of unavailability” under the guise of Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299. The notice purports to advise the other parties to the action—as well as the court—that the deliverer will not be available for a prescribed period of time and that no action may be taken during that period which adversely affects the unavailable party. To the extent this practice attempts to put control of the court’s calendar in the hands of counsel—as opposed to the judiciary—it is an impermissible infringement of the court’s inherent powers."

The Court
Carl v. Superior Court (Nov. 21, 2007, G038766)
p. 2

Week of November 12, 2007

2007-12-02T15:33:00.000-08:00

"Next, plaintiffs contend LA Sound is not liable for the misrepresentations on the application. They claim LA Sound did not know about the joint venture. They further claim the insurance broker was St. Paul's agent and solely responsible for the application's accuracy. But LA Sound was a party to the joint venture agreement. And an insurance broker by definition represents policyholders, not insurers."

Justice Raymond J. Ikola
LA Sound USA, Inc. v. St. Paul Fire & Marine Insurance Company (Nov. 14, 2007, G036691)
p.8

Week of November 5, 2007

2007-12-02T15:13:00.000-08:00

"We agree with our colleagues in Division Five that Insurance Code section 1871.7* was not designed to prohibit fraud on the part of insurers, but rather to prohibit submission of fraudulent claims to insurers, and thus we affirm the judgment of dismissal.
This is appellant's third attempt to assert a claim under section 1871.7 based upon an insurance company's claims handling practices."

Justice Madeleine Flier
State of California ex rel. John Metz v. Farmers Group, Inc. (Nov. 9, 2007, B196455)
p. 2
*Footnote omitted

Week of October 29, 2007

2007-12-02T00:44:00.000-08:00

"Although Northrop does not expressly say so, it appears to be arguing that, even if the 10-year statute applies to enforcement actions, the four-year statute applies to recognition actions. For this there is no authority, not even Dore v. Thornburgh, which was an action to enforce a foreign judgment and predated the Uniform Act’s recognition provisions by 75 years. Moreover, the suggestion that a shorter statute of limitations should apply to a “recognition” action than to an action seeking enforcement of the judgment after it is recognized is irrational, as it would completely undercut the Legislature’s intent to enforce foreign judgments in like manner with sister state judgments.

Justice Laurence D. Rubin
Guimaraes v. Northrop Grumman Corporation (Oct. 30, 2007, B194205)
p. 8

Bonus Quote: From page 9 of the same case: "Northrop further argues that the Legislature’s requirement that foreign judgments be enforced “in the same manner” as sister state judgments does not include time limitations, which govern “when” an action may be brought, not “how” it must be brought. Neither legal authorities nor common sense supports this proposition. The definition of “manner” includes “a mode of procedure” (Webster’s Ninth New Collegiate Dictionary (1989) p. 724, column 2), and timing is a matter of procedure."

Week of October 22, 2007

2007-12-01T19:42:00.000-08:00

"The record establishes that Arthur represented, both orally and in writing, that he was authorized to sell the property. However, no written authorization to sell was ever produced at trial, and the only testimony on the issue was that the Tseng Brothers did not sign a written authorization. Notwithstanding the complete absence of evidence of written authorization, the trial court found that the purchase agreement was 'entered into with the express authorization and consent, both orally and in writing, of all four Defendants."

Acting Presiding Justice Orville A. Armstrong
Elias Real Estate, LLC v. Tseng (Oct. 25, 2007, B192857)
p.4

Week of October 15, 2007

2007-12-01T15:36:00.000-08:00

"PG&E takes the position that it could infer Romero was properly joined from the fact that he was named a defendant pursuant to section 382. We disagree. No inference of proper service necessarily can be drawn from the mere fact that a party is named as a defendant, and service could not have been alleged in the complaint because it would have occurred subsequent to the filing of the complaint."

Acting Presiding Justice Cole Blease
Romero v. Pacific Gas & Electric Company (Oct. 18, 2007, C053700)
p. 10

Week of October 8, 2007

2007-12-01T12:48:00.000-08:00

"Further, citing a 1921 Pennsylvania Supreme Court decision, [fn. 8] he contends he has an unfettered right to circulate a petition and to present it to the sovereign, which right “cannot lawfully be infringed, even momentarily, by the state.” He argues “[a] citizen’s right to petition his government is sacred. The right to redress grievances by placing them before the sovereign has been fundamental to Western Civilization since the 13th Century—since the signing of the Magna Carta. Throughout our history, the Right to Petition has, traditionally, been jealously guarded as ‘one of the most precious rights of our democratic process.’ [Citation.]” In taking this position, Stansbury overlooks the fact there is no constitutional right to place an invalid initiative on the ballot. (Dunkl, supra, 86 Cal.App.4th at p. 389.) Moreover, he ignores entirely the body of law which recognizes preelection challenges to initiative measures."

fn.8 Spayd v. Ringing Rock Lodge (1921) 270 Pa. 67

Justice Douglas P. Miller
City of Riverside v. Stansbury (Oct. 12, 2007, E040125 & E042973)
p. 13

Week of October 1, 2007

2007-11-29T21:37:00.001-08:00

"We do not find it self-evident a law firm's commendable willingness to provide its services on a pro bono basis to low income clients should necessarily justify a diminishment in the fee award when that pro bono representation proves successful."

Justice Earl Johnson, Jr.
Cruz v. Ayromloo (Oct. 3, 2007, B190959)
p. 9

Comment: The opinion makes it very clear that if the respondents had appealed the trial court's ruling that the fee award should be reduced because the respondents' counsel had agreed to represent them pro bono, the Court of Appeal would have reversed that ruling. In two lengthy footnotes that contain a multitude of citations Justice Johnson explains that pro bono representation should neither prevent nor reduce a fee award. It may be that the Justice, who retired two weeks later, wanted to do as much as he could to encourage future pro bono work before he left the bench. The successful respondents in this action were thirty-two tenants who were evacuated by the City of Los Angeles because the building they were living in was unsafe, and were then illegally evicted when the landlord refused to let them move back in. Their case highlights the need for pro bono representation.

Week of September 24, 2007

2007-11-29T00:18:00.001-08:00

"In 1992 or 1993, to assist in prosecuting its lawsuit, SSI hired an investigator to surreptitiously obtain Disney documents. Other than a purported admonition to obey the law, SSI provided no direction or supervision for the investigator’s activities. Working at least until 1995, the investigator took thousands of pages belonging to Disney, including documents marked privileged and confidential. He obtained the documents by breaking into an uncertain number of Disney office buildings and secure trash receptacles, and by trespassing onto the secure facility of the company with which Disney had contracted to destroy its confidential documents."

Acting Presiding Justice Thomas L. Willhite, Jr.
Stephen Slesinger, Inc. v. The Walt Disney Company (Sept. 25, 2007, B178340)
p. 2

Read my discussion of this case on the California Civil Litigation Blawg.

Week of September 17, 2007

2007-11-28T21:22:00.002-08:00

"In support of its warranty argument, Wells Fargo vaguely directs us to divisions 3 and 4 of the code. Our review of the 120 or so sections within these two divisions reveals a number of warranties made by a depositor presenting a check (see, e.g., §§ 3416, 3417, 4207, 4208), but we have been unable to locate a specific section providing that a depositor, by presenting a check for payment, warrants there are sufficient funds in the payor bank to cover the item. Unearthing no authority to support this argument, we do not consider it further."

Justice Richard M. Aronson
Holcomb v. Wells Fargo Bank, N.A. (Sept. 20, 2007, G037638)
p. 11

Week of September 10, 2007

2007-09-29T20:23:00.001-07:00

"In this consumer action against Microsoft Corporation, respondent court granted Microsoft's motion to strike plaintiff's claim for restitution. Adopting Microsoft's interpretation of certain language in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134 (Korea Supply), respondent court held that the availability of restitution under the UCL was limited to direct purchasers and excluded plaintiffs such as the petitioner in this case, who purchased Microsoft's product from a retailer."

Justice Sandy R. Kriegler
Shersher v. Superior Court (Sept. 10, 2007, B195317, Second District)
p. 2

Read my summary of the case

Comment: Do you own any Microsoft products? Did you buy them directly from Microsoft? Luckily neither you or I have to worry about where we make future purchases because Justice Kriegler and his colleagues rejected Microsoft's interpretation of Korea Supply.

Week of September 3, 2007

2007-09-12T22:14:00.000-07:00

"The appellate briefs of both parties contain factual assertions with references to pages in the record that do not support their statements, and, in respondent's brief, statements highlighted in boldface without any record references at all. The parties' carelessness amounts to a disregard of California Rules of Court, rule 8.204(a)(1)(C) and rule 8.204(a)(2)(C). We will disregard any factual references that violate these provisions. We cannot, however, ignore respondent's unprofessional tone, including rhetorical queries, a fawning portrayal of the arbitrator as a 'practical, savvy former trial judge,' and the suggestion that this court 'should be similarly outraged' by Fire's conduct"

Justice Franklin D. Elia
Baron v. Fire Insurance Exchange (Sept. 4, 2007, H029830)
p. 2, footnote 1

Read my summary of the case

Comment: It is impossible to stress too strongly the importance of being familiar with and complying with the Rules of Court. However, this quote also represents an example of the unusual occurrence in which the party whose brief is criticized most harshly (the respondent) is also the party who wins the appeal. Not only was the award of $1.5 million in punitive damages to the respondent affirmed, but the respondent was awarded Brandt attorney fees for the appeal. That's no excuse not to be as careful as possible about obeying the rules of court, but it does provide some hope that even if you are having a bad day and not producing your best work, if the law is on your side, your client will prevail. Or as some might say, when you're right, you're right.

Week of August 27, 2007

2007-09-08T00:58:00.000-07:00

"We are unaware of any automobile insurance covering liability arising from an automobile accident where the insured has no connection to the automobiles involved in the accident. The likely reason is that there is no demand for such insurance."

Justice Brad R. Hill
Essex Insurance Company v. City of Bakersfield
(Aug. 27, 2007, F051091) p.16

Read my summary of the case

Week of August 20, 2007

2007-09-07T15:46:00.000-07:00

"By barring discrimination on the basis of disability, while allowing employers to defend on grounds of inability to perform, the Legislature sought to overcome the then widespread assumption that disabled people had no place in the workplace. Now, by reading into FEHA a requirement that persons with disabilities must prove their ability to perform before they can complain of discrimination, the majority effectively endorses this legally discredited assumption. For this reason, I dissent."

Justice Kathryn M. Werdegar
Green v. State of California (Aug. 23, 2007, S137770)
dissent pp. 14-15

Read my summary of this case

Week of August 13, 2007

2007-09-07T11:45:00.000-07:00

"Sometimes lawyers seem to forget that, in their professional capacities, they owe a duty of loyalty to their clients - even when they no longer like them. And whan a lawyer becomes convinced that his client is on the wrong side of a particular legal dispute, the lawyer generally has the option of staying out of that dispute. He does not, however, have the option of switching sides and suing a client on behalf of a third party, alleging that the very settlement that he obtained for the client in prior litigation actually belongs to the third party. And when the client objects to such an attempt, and sued the lawyer for breach of his professional obligations, the lawyer probably shouldn't cross-complain back against her, apparently outraged that she has dragged him into the controversy and caused him to expend money to defend himself."

Justice William W. Bedsworth
Philipson & Simon v. Gulsvig (August 15, 2007, G037335) p. 1

Read my summary of the case