Articles Posted in Civil Procedure

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Shauna R. appealed an order terminating parental rights to her son, Cody R., contending the order should have been reversed because the San Diego County Health and Human Services Agency (Agency) did not give preferential consideration to relatives when determining Cody's placement. After considering the parties' supplemental briefing on the issue of standing, the Court of Appeal concluded Shauna did not have standing to appeal the order terminating parental rights. "A parent's appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child's placement only if the placement order's reversal advances the parent's argument against terminating parental rights." Shauna overlooked the fact she did not challenge on appeal the court's finding there were no exceptions to termination of parental rights. "She alludes to the possibility that if Cody had been placed in the care of a relative, the relative would not have been able to adopt and the court would have ordered a permanency plan of guardianship, thus preserving Shauna's parental rights. Speculation about a hypothetical situation is not sufficient to support standing." Furthermore, the Court found the record did not support Shauna's claims there were relatives willing to provide a home to Cody and the Agency failed to apply the relative placement preference. In not bringing the placement issue to the juvenile court's attention at any time during Cody's dependency proceedings, Shauna has forfeited the issue on appeal. View "In re Cody R." on Justia Law

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Attorney Beverly Gassner filed suit against her former client Loretta Stasa for unpaid fees. Gassner was represented by the Grossman firm. In 2016, Gassner voluntarily dismissed the action without prejudice. The trial court awarded costs - not only against the plaintiff, but also against the Grossman firm. The plaintiff moved to vacate the costs order, but the trial court denied that motion. The Grossman firm appealed. With regard to the order awarding costs, the Court of Appeal determined there was a split of authority as to whether such an order was appealable when it was made after a voluntary dismissal without prejudice. The Court followed the case law holding that it was appealable. The Grossman firm, however, failed to file a timely appeal of that order. With regard to the order denying the motion to vacate, ordinarily such an order was not appealable on grounds that could have been raised in an appeal from the underlying order. This bar does not apply, however, when the underlying order is void. "Moreover, the appeal is timely with respect to this order." On the merits, the Court held that the order awarding costs against the Grossman firm was indeed void, because the Grossman firm was not a party. Accordingly, the Court reversed the trial court's order. View "Gassner v. Stasa" on Justia Law

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Beginning in 2009, plaintiffs sued defendants, including Associated Insulation, for injuries arising out of plaintiffs’ alleged asbestos exposure. Plaintiffs served Associated with the complaints. Associated, which apparently ceased operating in 1974, did not respond. The court entered default judgments, ranging from $350,000 to $1,960,458. Plaintiffs served notice of the judgments on Associated, but not on Fireman’s Fund. After entry of the judgments, Fireman’s located insurance policies appearing to provide coverage for Associated, retained counsel, and moved to set aside the defaults. Fireman’s argued “extrinsic mistake” because service of the complaint on Associated did not provide notice to Fireman’s and that it “never had the opportunity to participate in [the] lawsuit.” Plaintiffs noted that in two cases, they sent a “demand seeking coverage” to Fireman’s which was “acknowledged and denied” in 2012. Fireman’s had responded that it had searched all available records without locating any reference or policies of insurance issued to Associated. Plaintiffs did not respond with evidence of coverage. The court set aside the defaults. The court of appeal affirmed, noting that Fireman’s has a meritorious case and articulated a satisfactory excuse for not presenting a defense. Fireman’s established diligence in “seeking to set aside the default” judgments once they were discovered. View "Mechling v. Asbestos Defendants" on Justia Law

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The trial court granted a motion for summary judgment brought by defendant AMN Services, LLC (AMN), and denied motions for summary adjudication of one cause of action and one affirmative defense brought by plaintiff Kennedy Donohue, individually and on behalf of five certified plaintiff classes she represented (together Plaintiffs). AMN, a healthcare services and staffing company, recruits nurses for temporary contract assignments. AMN employed Donohue as a nurse recruiter in its San Diego office between September 2012 and February 2014. During the first few weeks of Donohue's employment in September 2012, for any noncompliant meal period, Team Time, AMN's timekeeping system, assumed a Labor Code violation, and the recruiter automatically received the full statutory meal period penalty payment. At all relevant times after mid-September 2012, if a recruiter's meal period was missed, shortened, or delayed, Team Time automatically provided a drop-down menu that required the recruiter's response: if the recruiter indicated that she chose not to take a timely 30-minute meal period, AMN did not pay a meal period penalty; however, if the recruiter indicated that she was not provided the opportunity to take a timely 30-minute meal period, then AMN paid the full statutory meal period penalty. The operative second amended complaint, filed on behalf of Donohue individually and a class of similarly situated AMN employees and former employees, alleged: (1) failure to provide meal and rest periods; (2) failure to pay overtime and minimum wage; (3) improper wage statements; (4) unreimbursed business expenses; (5) waiting time penalties; (6) unfair business practices; and (7) civil penalties authorized by the Labor Code Private Attorneys General Act of 2004 (PAGA). In her appeal, Donohue challenged the grant of AMN's motion for summary judgment and the denial of her motion for summary adjudication of one of the causes of action. On appeal, Donohue also challenged what she characterized as the trial court's "fail[ure] to hear a proper motion for reconsideration" of the summary judgment and summary adjudication rulings. After review, the Court of Appeal found it lacked jurisdiction to hear the rejection of Donohue's motion for reconsideration; the Court found no issues of material facts and affirmed summary judgment in favor of AMN. View "Donohue v. AMN Services, LLC" on Justia Law

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Plaintiff-respondent J.W., through her guardian ad litem, sued defendant-appellant Watchtower Bible and Tract Society of New York, Inc. (Watchtower) and others for: (1) negligence; (2) negligent supervision/failure to warn; (3) negligent hiring/retention; (4) negligent failure to warn, train, or educate J.W.; (5) sexual battery; and (6) intentional infliction of emotional distress. J.W. was raised as a Jehovah’s Witness. In July 2006, J.W. and Gilbert Simental belonged to the Mountain View Congregation of Jehovah’s Witnesses. Prior to July 2006, at a different congregation, Simental served as a ministerial servant and as an elder. Upon joining the Mountain View congregation, Simental served as an elder. In July 2006, J.W. and three other girls were invited to a slumber party at Simental’s home. Simental had a daughter near the age of J.W. and the other invited girls. While in his backyard pool, Simental sexually molested J.W. and another girl (Doe 1) in separate incidents. Doe 1’s sister, Doe 2, had previously been molested on two occasions by Simental. Doe 1 and Doe 2 told their mother about Simental molesting them. The mother contacted an elder of the congregation, a judicial committee was convened, and Simental admitted he molested Doe 2 on two occasions, and that he molested Doe 1 twice on July 15. In two criminal cases, Simental was ultimately found guilty of molesting Doe 1, Doe 2, and J.W. In her civil suit against Watchtower, J.W. moved to compel further discovery responses. The trial court’s order compelled Watchtower to produce all documents Watchtower received in response to a letter sent by Watchtower to Jehovah’s Witness congregations on March 14, 1997, concerning known molesters in the church (1997 Documents). By November 2014, Watchtower had not produced the 1997 Documents, and J.W. moved for terminating sanctions. At a hearing on the sanctions motion, the trial court offered Watchtower four days to produce the 1997 Documents. Watchtower declined the offer and refused to produce the 1997 Documents. The trial court granted the motion for terminating sanctions and struck Watchtower’s answer. The trial court clerk entered Watchtower’s default. After considering evidence, the trial court entered judgment in favor of J.W. and awarded her $4,016,152.39. Raising multiple issues of alleged error, Watchtower appealed. Finding no reversible error, the Court of Appeal affirmed judgment. View "J.W. v. Watchtower Bible & Tract Society of New York, Inc." on Justia Law

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Plaintiffs are four parents and their children residing throughout California and a California nonprofit corporation, A Voice for Choice, Inc. This case rose constitutional challenges to Senate Bill No. 277, which repealed the personal belief exemption to California’s immunization requirements for children attending public and private educational and child care facilities. Plaintiffs sued claiming Senate Bill No. 277 violated their rights under California’s Constitution to substantive due process, privacy, and a public education. The trial court sustained the defendants’ demurrer to plaintiffs’ complaint without leave to amend and plaintiffs appealed. On appeal, plaintiffs also raised an additional argument that Senate Bill No. 277 violated their constitutional right to free exercise of religion, although they did not allege a separate cause of action on that basis in their complaint. The Court of Appeal found "[p]laintiffs' arguments are strong on hyperbole and scant on authority." Finding no violation of plaintiffs' constitutional rights, the Court of Appeal affirmed the trial court. View "Love v. California Dept. of Education" on Justia Law

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Pursuant to a former version of Code of Civil Procedure section 128.5, the trial court ordered CPF Vaseo Associates, LLC (CPF) and its counsel, John Byrne, to pay Bruce and Barbara Gray (the Grays) just over $30,000 in fees and costs. Yet a mandatory procedural prerequisite to that award was never fulfilled. The motion requesting sanctions was served and filed on the same day, and no safe harbor period was afforded for CPF and Byrne to correct the challenged conduct. While a panel of the Court of Appeal previously determined that no such safe harbor applied to a sanctions motion like the one here, the Legislature's subsequent clarifying amendment of the section and the contrary opinion of another court convinced the Court to now reach a different conclusion. For that reason, the Court reversed and remanded for further proceedings. View "CPF Vaseo Associates, LLC v. Gray" on Justia Law

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The Court of Appeal held that a default judgment was void on its face based on improper service. In this case, the trial court ordered plaintiffs to publish the summons "in The Orange County Register, a newspaper of general circulation published at Orange County, California." Plaintiffs published notice in the Laguna News-Post instead. Therefore, plaintiffs' failure to comport with the trial court's publication requirements rendered the judgment void and plaintiffs' arguments to the contrary were unpersuasive. The court reversed the trial court's order denying the motion to vacate and remanded for vacatur of the judgment. View "Calvert v. Binali" on Justia Law

Posted in: Civil Procedure

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Plaintiffs Travelers Property Casualty Company of America, the Travelers Indemnity Company of Connecticut, and St. Paul Fire and Marine Insurance Company (collectively, Travelers) filed this action against certain subcontractors to recover attorneys’ fees and costs Travelers incurred in defending developers Westlake Villas, LLC and Meer Capital Partners, LLC (collectively, Westlake) in a prior construction defect action. Travelers' claims were based on alleged subrogation to the rights of its additional insured, Westlake. The Westlake entities were suspended corporations under Revenue and Taxation Code section 23301, and could not assert these claims on their own behalf. Defendant Engel Insulation, Inc. moved for judgment on the pleadings on the basis that Travelers was also barred under this statute from prosecuting these claims. On appeal, Travelers contended the trial court erred in granting Engel’s motion without leave to amend. The Court of Appeal disagreed: an insurer could not file its own action to assert claims solely as a subrogee of a suspended corporation. View "Travelers Property Casualty Co. of Amer. v. Engel Insulation, Inc." on Justia Law

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Employee Edwards filed a putative class action lawsuit against employer Heartland for wage and hour violations. Employees Torres and Martinez filed a separate, later putative class action lawsuit against Heartland for similar violations. After Edwards entered into a proposed class action settlement with Heartland and amended her complaint to encompass the claims asserted by Torres and Martinez, Torres and Martinez filed a motion to intervene in Edwards’ lawsuit. The trial court denied the motion. The court of appeal affirmed. The Torres plaintiffs were not entitled to mandatory intervention mandatory intervention under Code of Civil Procedure section 387(b): their ability to protect their interest would not be practically impaired or impeded by the settlement in Edwards because they could opt out of or object to the settlement. The trial court did not abuse its discretion in denying permissive intervention; they do not need to intervene to seek discovery; as objectors, they may seek discovery to ensure sufficient information has been provided to evaluate the fairness of the settlement. View "Edwards v. Heartland Payment Systems, Inc." on Justia Law