Articles Posted in Civil Procedure

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RPB appealed from an order granting discovery sanctions after a motion to compel further responses to a deposition notice. In this case, BRI served a notice of motion and motion to compel within a statutory deadline, but did not serve any of the required supporting papers upon which the motion was based until 15 court days before the hearing. The Court of Appeal agreed with RPB that the motion was untimely. The court held that the 60 day deadline was mandatory and serving a notice of motion and motion to compel on December 6, 2016, without the supporting papers identified therein rendered the motion untimely. The court explained that there was no conflict between Code of Civil Procedure sections 1005 and 1010 in the context of section 2025.480, subdivision (b). Neither does the plain language of section 1010 allow for BRI’s interpretation that a notice of motion and motion alluding to other papers but not attaching them somehow satisfied section 1005.5. View "Weinstein v. Blumberg" on Justia Law

Posted in: Civil Procedure

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Plaintiffs-appellants Angela Belfiore-Braman and Stephen Braman appealed a defense judgment entered on a jury verdict, in their medical malpractice action against orthopedic surgeon, defendant-respondent D. Daniel Rotenberg, M.D. The jury found Defendant was not negligent in the care and treatment of Ms. Belfiore-Braman during the hip replacement surgery he performed on her, and accordingly, it did not answer the special verdict's question on whether such negligence was a substantial factor in causing injury to her, or loss of consortium to her husband and fellow plaintiff. The issues on appeal centered around the trial court's ruling in limine, after a hearing under Evidence Code section 402, that excluded certain medical opinion testimony Plaintiff offered on issues of causation and damage, from her recently designated nonretained expert witness. The court determined that the proposed testimony would be unduly duplicative within the meaning of section 723. Instead, the nonretained expert witness would be allowed to testify to the jury only as to his observations from an imaging study he performed and what the test results revealed to him about Plaintiff's condition. Plaintiff argued to the Court of Appeal this ruling in limine unfairly prevented her from making a showing that Defendant's alleged negligent acts were a substantial factor in causing her injuries. However, the Court concluded the record supported the ruling: Plaintiff could not show the trial court abused its discretion in precluding the offered testimony on causation and damage. View "Belfiore-Braman v. Rotenberg" on Justia Law

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This appeal arose out of the 2007 subprime mortgage crisis. In March 2014, the National Asian American Coalition, COR Community Development Corporation, and the National Hispanic Christian Leadership Conference filed a petition for writ of mandate and complaint for declaratory and injunctive relief against the Governor, the Director of Finance, and the Controller, seeking the immediate return of approximately $350 million they alleged was unlawfully diverted from the National Mortgage Settlement (“NMS”) Deposit Fund to the General Fund in contravention of both Government Code section 12531 and the federal consent judgments. The trial court concluded section 12531 was intended to effectuate the terms of the federal consent judgments, which required compliance with the instructions provided by former Attorney General Harris in Exhibit B-2 to the National Mortgage Settlement designating the permissible uses of the $410 million direct payment. The court determined defendants’ contention subdivision (e) permitted the Director of Finance to use the NMS Deposit Fund to offset General Fund expenditures regardless of whether such offsets were consistent with these instructions, the trial court reasoned such a reading of the statute would “raise serious doubts about the legality of the statute, not only as to whether the Legislature may override a federal judgment, but also whether the Legislature constitutionally may delegate to an agency the authority to decide how millions of dollars of state funds shall be spent with virtually no guidance or direction from the Legislature.” Turning to the question of whether the particular offsets were consistent with the former Attorney General’s instructions, the trial court concluded $331,044,084 was unlawfully appropriated from the NMS Deposit Fund for purposes inconsistent with these instructions. Nevertheless, pointing out that it lacked the constitutional authority to order the Legislature to appropriate funds, the trial court declared an obligation to restore the unlawfully diverted funds and ordered such restoration “as soon as there is a sufficient appropriation ‘reasonably’ and ‘generally’ available for such purpose.” The Court of Appeal concluded: (1) plaintiffs had public interest standing to seek a writ of mandate; (2) section 12531 was intended by the Legislature to effectuate the terms of the NMS regarding the proper uses of the money; (3) $331 million was unlawfully appropriated from the NMS Deposit Fund for purposes inconsistent with the NMS; however, (4) because the unlawfully diverted funds were “in law still in the [NMS Deposit Fund],” separation of powers principles did not preclude the Court of Appeal from ordering the immediate return of these funds. The Court therefore reversed judgment in part and remanded the matter to the trial court with directions to issue a writ of mandate directing the immediate retransfer from the General Fund to the NMS Deposit Fund the sum of $331,044,084. View "National Asian American Coalition v. Brown" on Justia Law

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In this appeal, the issue the Court of Appeal was asked to determine whether a state entity whose employees were exempt from state law requiring the payment of overtime compensation was nevertheless required to pay overtime compensation to such employees when the state entity jointly employed the employees with a non-state employer. Although the Court concluded in a prior appeal in this case that the matter should have been remanded to the trial court to permit the plaintiffs to amend their complaint to attempt to state a cause of action premised on such a theory, the Court now concluded such a cause of action would not be legally viable. Furthermore, the Court concluded the law-of-the-case doctrine did not require the Court reverse the trial court's order sustaining a demurrer to the plaintiffs' second amended complaint. View "Moreles v. 22nd District Agricultural Assn." on Justia Law

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This case arose from employment-related contract disputes. In 2013, petitioners, who were gastroenterologists, were recruited by GI Excellence, to work as physicians in GI Excellence’s gastroenterology service in Temecula, California. They each entered into separate physician recruitment agreements and physician employment agreements. The relationships did not last long: the two petitioners became dissatisfied with their conditions of employment and compensation and resigned in April and May 2014. GI Excellence sued them in separate actions for breach of the employment and recruitment contracts and other claims. Petitioners separately cross-complained for breach of contract, fraud, violation of Labor Code section 970, and other cross-claims. Litigation proceeded for about four years, with at least four continuances in the last year. Petitioners’ expert witness fell ill, and they asked for another continuance. GI Excellence filed an “opposition” which recognized the expert would likely not be available for trial. The superior court denied the ex parte application for continuance; petitioners filed this petition for writ of mandate and/or prohibition the next day, requesting an immediate stay of trial while the petition was being considered. GI Excellence filed an informal letter response. The Court of Appeal issued an order staying the trial and any proceeding requiring the participation of the expert pending determination of the petition. “A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may require the moving party, where application is made on account of the absence of a material witness, to state upon affidavit the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed.” Generally, a trial court abuses its discretion when it denies a request for continuance of trial due to the absence of a properly called and subpoenaed witness. Accordingly, the Court of Appeal determined the trial court abused its discretion in denying petitioners’ request for a continuance, and that the petition should have been granted. Therefore, the Court declared a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order of May 16, 2018, in Riverside Superior Court case No. MCC1400959, denying petitioners’ ex parte application for a continuance of the trial, and to enter a new and different order granting the request. View "Padda v. Super. Ct." on Justia Law

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A devastating wildfire (the Butte Fire) swept through Calaveras and Amador counties in September 2015. The fire started when a tree came into contact with an overhead power line owned and operated by petitioners Pacific Gas and Electric Company and PG&E Corporation (together, PG&E or the company). Real parties in interest (plaintiffs) brought suit against PG&E, seeking punitive damages under Public Utilities Code section 2106 and Civil Code section 3294. PG&E sought summary adjudication of plaintiffs’ request for punitive damages under section 3294 only. The trial court denied the motion. PG&E thereafter sought writ relief from the trial court’s order. The Court of Appeal concluded there were no triable issues of fact which, if resolved in plaintiffs’ favor, could have subjected PG&E to punitive damages under section 3294. Accordingly, the Court granted the petition. View "Pacific Gas & Electric Co. v. Superior Court" on Justia Law

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Plaintiff-appellant Kele Young, owner and operator of the Magic Jungle Wildlife Preserve, a wildlife sanctuary located in Lucerne Valley, appealed the denial of her petition for writ of mandate brought against respondents-defendants California Fish and Game Commission (Commisssion); California Department of Fish and Wildlife (Department); Charlton H. Bonham, Director of California Department of Fish and Wildlife; and Sonke Mastrup, Director of California Fish and Game Commission (collectively, Wildlife Agencies). This appeal centered on a dispute over the refusal of the Wildlife Agencies to waive an approximately $300 inspection fee required pursuant to California Code of Regulations, title 14 (CCR) sections 671.1 and 703, required to be paid in order for Young to renew the permit for the Magic Jungle. Young raised eleven grounds on appeal. However, the COurt of Appeal found a majority of Young’s claims were waived by her making only conclusory allegations and providing no legal authority and/or by failing to provide any citation to the record. The only issues that were properly reviewed by the Court were whether the Wildlife Agencies could refuse to waive the inspection fee without consideration of the “justified reasons” or whether it was in the “best interests” of the public to waive the fee in light of Fish and Game Code section 2150(c), and CCR section 671.1(b)(1); and if reversal is warranted due to the trial court failing to issue a statement of decision. Finding no reversible error, the Court of Appeal affirmed the trial court's order denying the petition for a writ of mandate. View "Young v. Cal. Fish & Game Com." on Justia Law

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Husband appealed an order setting aside a default judgment that incorporated a marital settlement agreement (MSA). He contended the trial court erred by considering evidence not presented, submitted, or admitted at the hearing, in violation of Family Code section 217. He further argued the court erroneously relied upon an incorrect legal standard when it found the failure to complete preliminary and final disclosures provided sufficient grounds to vacate the judgment. The Court of Appeal affirmed, finding that if husband disagreed with the court’s assessment, he should have stated his position on the record and requested the opportunity to present live testimony as authorized by section 217. Having failed to do so, the trial court did not err in allowing wife to “‘rest on the pleadings’” instead of presenting evidence. In deciding to set aside the judgment, the trial court found that husband failed to complete the preliminary and final disclosures, as evidenced by : (1) there were no supporting documents attached to the preliminary disclosure; (2) the stipulation was prepared by husband’s attorney; (3) wife never actually exchanged any documents with husband; (4) husband was unable to produce copies of the documents that support the preliminary disclosure; and (5) husband has over $400,000 in cash and checking accounts that was not disclosed in his income and expense declaration. Here, husband prepared the necessary preliminary declarations of disclosure; however, he failed to provide the supporting documentation. Wife never completed or exchanged any declarations of disclosure, despite executing the stipulation stating that she had done so. Given the lack of compliance with the statutory requirements, the stipulation was insufficient to act as a waiver of the final disclosure. The trial court therefore correctly concluded that there had been a mistake of fact by the parties regarding whether the statutory requirements had been satisfied, and properly vacated the judgment on that basis. View "In re Marriage of Binette" on Justia Law

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The case was filed in 2013. In November 2016, the court granted defendants terminating sanctions on Moofly’s claims, finding that Moofly had abused the discovery process and displayed “utter disregard for the court.” Moofly moved for reversal of the terminating sanctions under Code of Civil Procedure section 473, which allows relief from defaults and dismissals entered as a consequence of mistakes or neglect. Defendants argued that that Moofly’s motion was an incorrectly-labeled motion for reconsideration under section 1008. On December 20, the court denied the motion, issued an order to show cause regarding sanctions against Moofly, and set the hearing for January 23, 2017. Moofly filed a response on January 18. On February 2, the court granted the motion for sanctions ($10.499.51) against Moofly and its attorney. The court of appeal reversed. Code of Civil Procedure section 1008 establishes the rules for motions for reconsideration, providing that a court may impose sanctions for violations “as allowed by [s]ection 128.7.” A court may not sanction a party for violating section 1008 without allowing the party a 21-day safe harbor to withdraw the offending motion, as required by section 128.7(c). Moofly did not receive the required 21-day notice to withdraw its motion fand avoid sanctions. View "Moofly Productions v. Favila" on Justia Law

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Under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code 3300), no punitive action may be taken against a public safety officer for any alleged act unless the investigation is completed within one year of “the public agency’s discovery by a person authorized to initiate an investigation,” subject to exceptions. One exception tolls the time period while the act is also the “subject” of a pending criminal investigation or prosecution. A criminal corruption investigation of SFPD officers began in 2011; search warrants of cellphone records led to the discovery in December 2012 of racist, sexist, homophobic, and anti-Semitic text messages among SFPD officers. Two were convicted for conspiracy to commit theft, conspiracy against civil rights and wire fraud. Three days later (December 8, 2014), the texts were released to SFPD’s Internal Affairs Division (IAD-Admin). After IAD-Admin completed its investigation, the chief of police issued disciplinary charges against respondents in April 2015. The trial court concluded the limitations period began in December 2012 when the misconduct was discovered. The court of appeal reversed, concluding the limitations period did not begin until the text messages were released to IAD-Admin; before then, the alleged misconduct could not be discovered by the “person[s] authorized to initiate an investigation” under section 3304(d)(1). The limitations period was also tolled until the verdict in the criminal corruption case because the text messages were the “subject” of the criminal investigation under section 3304. View "Daugherty v. City & County of San Francisco" on Justia Law