Key Decisions

February 2014 – All Articles

(filed under: Key Decisions | February 21, 2014)

A Food Truck Was Mobile Equipment And Not An Auto

American States Insurance Company v. Travelers Property Casualty Company of America
(Cal. Ct. of App., 2d Dist.), filed August 27, 2014, published January 27, 2014

KEY FACTS

Royal Catering Company (Royal) owned a fleet of food trucks. It leased its trucks to operators who drove from site to site selling food. Royal leased a food truck to Esmeragdo Gomez, who, along with his wife Irais Gomez, operated the truck. The Gomezes’ food truck had only two seats and was not equipped to transport persons other than a driver and a cook.

While Mr. Gomez was driving the food truck, he had to swerve to avoid an approaching vehicle. At the time, a guest sat in the truck’s passenger seat, and Mrs. Gomez stood in the rear of the truck. As a result of Mr. Gomez swerving, hot oil from a deep fryer installed in the truck splashed on and burned Mrs. Gomez.

The Gomezes sued Royal for products liability (negligence), products liability (design defect), negligent infliction of emotional distress, and property damage.

Royal tendered the Gomez action to American States Insurance Company, which issued automobile and excess automobile insurance policies to Royal. American States agreed to provide a defense under a reservation of rights. Royal and American States tendered the Gomez action to Travelers Property Casualty Company of America, which had issued a commercial general liability and excess-umbrella general liability policy to Royal. Travelers declined to provide a defense.

In the ensuing coverage litigation, Travelers and American States both made motions for summary judgment.

Travelers argued that the auto exclusion in its policy precluded coverage.

American States argued that the Gomezes’ food truck was “mobile equipment” and not subject to the auto exclusion. It also argued the Gomezes’ food truck and the equipment installed in the truck—i.e., the deep fryer basket—was a “product” covered by the Travelers Primary CGL Policy and excluded from coverage under the American States Auto Policy.

The trial court granted Travelers’ motion for summary adjudication and denied American States’ motion for summary judgment. It held that the Gomezes’ food truck was an “auto” and not “mobile equipment,” reasoning that “the whole point…of this endeavor is to move food and other items to places where people are waiting to buy them and that food was the ‘cargo’ the Gomezes’ food truck transported.”

HOLDING & REASONING

The Court of Appeal reversed.

The court concluded that given the nature of the truck, the primary purpose of the Gomezes’ food truck was to serve as a mobile kitchen, not to transport persons or cargo. As a result, it qualified as “mobile equipment” within the definitions in the Travelers policy. Because the truck qualified as “mobile equipment,” it fell within the policy’s exception to the “auto” exclusion contained in the policy.

ANALYSIS

The court used a very practical approach to decide the issue. It concentrated on the primary purpose of the truck and its use as a mobile kitchen.

 

Collateral Estoppel Did Not Apply

Transport Insurance Company v. Superior Court
(Cal. Ct. of App., 2d Dist.), filed January 13, 2014, published January 13, 2014

KEY FACTS

Transport Insurance Company issued an excess liability insurance policy to Vulcan Materials Company. The policy named R.R. Street & Co., Inc. as an additional insured.

Vulcan and Street were sued for alleged environmental contamination. They tendered the lawsuit to their insurance carriers.

Transport and Vulcan then engaged in coverage litigation. The court held that language in the Transport policy was ambiguous as to Transport’s obligations and as a result, it had a duty to defend Vulcan.

Transport and Street then engaged in coverage litigation. The trial court held that Transport was bound by the decision in the case with Vulcan and granted a summary judgment motion to the effect that as a result Transport also had a duty to defend Street.

HOLDING & REASONING

The Court of Appeal issued a writ of mandate commanding the trial court to vacate its ruling and enter an order denying the motion.

The appellate court held that the trial court erred when it held that Transport was bound by the holding in the case with Vulcan. The trial court also erred in finding that that the holding in the case against Vulcan meant that Transport had a duty to defend Street.

The court reasoned that when the party claiming coverage under ambiguous policy language is an additional insured, it is the additional insured’s objectively reasonable expectations of coverage that are relevant, and not the objectively reasonable expectations of the named insured.

Since it was arguable that Street would not expect the Transport excess and umbrella policy to move into first position ahead of Street’s own commercial liability policies, Street could not rely on Vulcan’s coverage expectations. Moreover, since there was no evidence of Street’s expectations, Street was not entitled to a summary judgment.

ANALYSIS

This decision means that the additional insured’s expectations may need to be evaluated separately and independently from the named insured’s. Whether any particular difference is meaningful will depend on the individual circumstances of a given case.

 

Workers Compensation Laws Applied To A Worker’s Injury

Gonzalez v. Seal Methods, Inc.
(Cal. Ct. of App., 2d Dist.), filed January 24, 2014, published January 24, 2014

KEY FACTS

Lucia Gonzalez worked for Seal Methods, Inc. She was severely injured while loading material onto a die in a power press. At the time, the power press was fitted with a device that necessitated that the operator have both hands on certain buttons in order to operate. It did not, however, have safety blocks. Safety blocks were metal or wooden blocks that could be placed on the power press to prevent the die from lowering all of the way.

Gonzalez sought damages from Seal Methods in a lawsuit filed under Labor Code section 4558. That section contains an exemption to the rule that injured workers can recover only in accordance with worker’s compensation laws. It allows an employee to “bring an action at law for damages against the employer where the employee’s injury or death is proximately caused by the employer’s knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.”

Seal Methods made a motion for summary judgment. It asserted that it had not received any communication from the power press manufacturer to the effect that safety blocks needed to be installed or otherwise attached to the power press.

The trial court granted Seal Methods’ motion.

HOLDING & REASONING

The Court of Appeal affirmed.

Section 4558 does not define “point of operation guard.” Therefore, the court had to look at the statutory language of section 4558 to see if safety blocks should be considered a “point of operation guard.” Doing so, the court concluded that a point of operation guard does not include an unattached device, such as a safety block, that the worker moves into and out of the point of operation.

Based on this conclusion, the court concluded that Seal Methods did not fail to have a point of operation guard and could not be liable under section 4558.

ANALYSIS

In refusing to apply an exception to worker’s compensation exclusivity, the court focused on the fact that the safety blocks were not permanently connected to the press.

 

A Judicial Council Form Was Unnecessary

In Re Marriage of Linda and Norman Sharples
(Cal. Ct. of App., 4th Dist.), filed January 22, 2014, published January 22, 2014

KEY FACTS

In this marriage dissolution proceeding, Linda Sharples sought an order requiring Norman Sharples to pay for her attorney’s fees and costs. In support of the motion, Linda filed a declaration setting forth her income and assets, to show the need for the order she was seeking.

The court denied the request because Linda did not file Judicial Council form FL-319, which the court explained was mandatory.

HOLDING & REASONING

The Court of Appeal reversed. It held that form FL-319 was not mandatory and that the declaration satisfied the requirements set forth in the Family Law Code.

The court rejected Norman’s reliance on a local rule requiring the filing of a FL-319 form prior to a mandatory settlement conference. First, the proceeding was not a mandatory settlement conference. Second, to the extent the local rule conflicted with the Family Law Code, it was invalid.

ANALYSIS

This case is significant as it is a reminder as to how Judicial Council forms may be used and as to how conflicts between local court rules and state statutes are resolved.

 

Other Cases Of Interest

FAIR Plan Paid All Benefits Owed

St. Cyr v. California FAIR Plan Association
(Cal. Ct. of App., 2d Dist.), filed January 31, 2014, published January 31, 2014

Gaeton St. Cyr and other homeowners lost their homes in wildfires. Because their homes were in areas where there was a high risk of fire, they were unable to obtain conventional fire insurance policies from standard insurance companies. Instead, they obtained fire insurance from California’s FAIR Plan program, a program created by statute in 1968 to provide property insurance to the otherwise uninsurable.

Within a short time after the losses, the FAIR Plan paid its full policy limits to the various homeowners. However, the various homeowners asserted that they were entitled to additional payments as they were entitled to the protections provided in the standard form fire policy set forth in Insurance Code section 2071.

When FAIR Plan declined to make the additional payments, the homeowners sued.

The trial court sustained demurrers without leave to amend. It found that the FAIR Plan had paid all that its policies required.

The Court of Appeal affirmed. It concluded that FAIR Plan satisfied both its contractual obligations under the policies issued and the requirements of section 2071.

 

Wrongful Termination Instructions Were Wrong

Mendoza v. Western Medical Center Santa Ana
(Cal. Ct. of App., 4th Dist.), filed January 14, 2014, published January 14, 2014

Romero Mendoza was employed by Western Medical Center Santa Ana. He worked there for 20 years. Mendoza reported being sexually harassed by another employee. An investigation ensued. The employee about whom Mendoza complained about blamed Mendoza. Western Medical Center eventually fired both Mendoza and the other employee.

Mendoza sued Western Medical Center for wrongful termination in violation of public policy.

After the parties presented their cases, the trial court instructed the jury with the 2012 version of CACI No. 2430. The special verdict form consistent with that instruction.

The jury voted nine to three to award Mendoza $238,328.

The Court of Appeal reversed. It held that case law issued after the judgment led it to conclude the trial court committed prejudicial error in giving the particular instruction.

Mendoza claimed his report of sexual harassment caused the defendant to fire him. In short, he claimed he was fired for accusing his superior of sexual harassment.

Western Medical Center pointed to its belief that Mendoza willingly participated in sexual misconduct on the job as its motivation for firing Mendoza. From its perspective, Mendoza’s report only “caused” his firing in that it alerted Western Medical Center to Mendoza’s misconduct.

Western Medical Center conceded it is against public policy to fire employees because they report actual sexual harassment. But it argued it is not against public policy for employers to fire employees after the employer determines in good faith that the employee actually participated in sexual misconduct on the job.

The trial court instructed the jury in terms of Mendoza’s report of sexual harassment as being the motivating reason for his discharge. But the Court later issued an instruction saying that it should have referred to “a motivating reason.” In view of Western Medical Center’s assertion that the report only alerted it to misconduct by Mendoza, and case law decided after the verdict (Harris v. City of Santa Monica, 56 Cal.4th 203 (2013)), this was an incorrect instruction. The jury should have been instructed in terms of the report being “a substantial motivating” factor or reason. The judgment had to be reversed because the jury could have erroneously imposed liability even though the report was not a substantial motivating factor.

 

A Wage Claim Could Not Be Stated

Hawkins v. TACA International Airlines, S.A.
(Cal. Ct. of App., 2d Dist.), filed January 27, 2014, published January 27, 2014

Arlette Hawkins filed a putative class action complaint alleging wage and hour claims against her former employer, Sereca Security Corp. She later brought TACA International Airlines, S.A. (TACA), LAN Airlines and LAN Cargo (jointly, LAN), and Volaris, into the lawsuit. Additional defendents were allegedly responsible for Sereca’s alleged violations of wage and hour laws.

California Labor Code section 2810 authorizes the employees of a services contractor in certain industries to sue the party hiring the contractor if the hiring party knowingly pays a contract price insufficient to permit the contractor to comply with the law in performing the contract.

TACA, LAN and Volaris filed a demurrer, challenging the legal sufficiency of Hawkins’ complaint. They arged that Hawkins failed to allege facts showing that they knowingly entered into underfunded contracts.

Hawkins admitted that she never saw the relevant contracts and had no information concerning their contents. However, she asserted that she could sue first and conduct discovery later to ascertain whether any of the contracts was underfunded.

The trial court sustained the demurrers and dismissed Hawkins’ case against TACA, LAN and Volaris.

The Court of Appeal affirmed.

The court rejected Hawkins’ argument that before suing TACA, LAN and Volaris, she was unable to obtain their contracts with Sereca and therefore should be relieved of her substantive contractual pleading obligation. It noted that Hawkins had means under the Code of Civil Procedure, of getting copies of the contracts before suing TACA, LAN or Volaris. The court described Hawkins’ failure to obtain the contracts as “a significant omission.”

The court favorably cited Bockrath v. Aldrich Chemical Co., 21 Cal.4th 71 (1999), for the proposition that a plaintiff “may not sue multiple defendants on speculation that their conduct caused harm and ‘thereafter try to learn through discovery whether the speculation was well-founded.” [The Bockrath court referred to “prospecting plaintiffs.”]

 

Employees Were Not Entitled To Overtime

Vranish v. Exxon Mobil Corporation
(Cal. Ct. of App., 2d Dist.), filed January 22, 2014, published January 22, 2014

Exxon employed George Vranish, Jr., and Steve Teague. Their employment was governed by a collective bargaining agreement.

Vranish and Teague brought a class action against Exxon alleging that they and their class members were owed monies for overtime hours worked. They based their claim on, among others, Labor Code sections 510 and 511.

Exxon moved for summary judgment. It asserted that the Labor Code provisions relative to overtime hours did not apply because Vranish, Teague and the other class members were represented by a labor organization and their employment was governed by a collective bargaining agreement.

Exxon relied on Labor Code section 514 which provides, in relevant part:

“Sections 510 and 511 do not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage.”

The trial court granted the motion.

The Court of Appeal affirmed. It rejected Vranish and Teague’s argument that the collective bargaining agreement does not provide for premium compensation for all “overtime hours worked,” as the word “overtime” is defined by section 510. It rejected their argument that Exxon had not satisfied the requirements of section 514.

 

Because Of The Public Interest Exception, A Lawsuit Was Not Subject To An Anti-SLAPP Motion

Tourgeman v. Nelson & Kennard
(Cal. Ct. of App., 4th Dist.), filed January 16, 2014, published January 16, 2014

David Tourgeman brought a putative class and representative action against Dell Financial Services, L.P., Nelson & Kennard, and Robert Kennard. Tourgeman’s complaint contended that Nelson & Kennard violated the Fair Debt Collections Practices Act (15 U.S.C. §1692 et seq.). He asserted they did so while attempting to collect a debt that Tourgeman incurred with one purchase of a Dell computer. Tourgeman brought a single claim under the Unfair Competition Law. He sought an injunction to prevent them from engaging in unlawful, unfair, and/or fraudulent debt collection practices in the future.

Nelson & Kennard filed a special motion to strike pursuant to the anti-SLAPP statute, embodied in Code of Civil Procedure section 425.16.

Tourgeman voluntarily dismissed his action against Nelson & Kennard. After the action was dismissed, Nelson & Kennard filed a motion for attorney’s fees for having had to make the anti-SLAPP motion.

Tourgeman opposed the motion. In his opposition, Tourgeman conceded that the trial court had jurisdiction to rule on the motion for attorney’s fees. However, he argued that the trial court was required to determine whether Nelson & Kennard would have prevailed on their motion as a prerequisite to awarding them attorney’s fees under the anti-SLAPP statute. Tourgeman further argued that Nelson & Kennard would not have prevailed on their motion because the action was exempt from the anti-SLAPP statute, under the statute’s public interest exception.

The trial court determined that Tourgeman had failed to demonstrate that the public interest exception applied to his lawsuit, and entered an order to this effect.

The Court of Appeal, however, concluded that Tourgeman’s action satisfied each of the requirements of the public interest exception and that his complaint was therefore not subject to a special motion to strike. It reversed the judgment and the attorney’s fees and costs order and remanded the matter to the trial court with directions to deny Nelson & Kennard’s motion for attorney’s fees and costs.

 

There Is No Duty Owed To A Child Before Conception

Elsheref v. Applied Materials, Inc.
(Cal. Ct. of App., 6th Dist.), filed January 27, 2014, published January 27, 2014

Applied Materials provides equipment, services, and software to enable the manufacture of advanced semiconductor, flat panel display, and solar photovoltaic products. Applied Materials employed Khaled Elsheref from 2001 to 2008. Khaled’s job duties included working with tools containing mercury and ethylene glycol, among other chemicals, as well as tools emitting ionizing radiation.

While Khaled worked at Applied Materials, his wife Zainab conceived and gave birth to their son, Waleed. Waleed was born with a number of birth defects allegedly caused by Khaled’s exposure to toxic chemicals at Applied Materials. Waleed sought compensation for those injuries, while Zainab sought to recover for emotional distress suffered in connection with Waleed’s injuries.

Applied Materials moved for summary adjudication. It asserted that it owed no legal duty to Waleed or Zainab. The trial court granted the motion.

In the ensuing appeal, the Court of Appeal held that Applied Materials did not owe any duty to Waleed before he was conceived. However, it also held that the lack of duty was not fatal to Waleed’s strict products liability claim.

Based on this, the court reversed the judgment and gave directions to the trial court on how to proceed.

 

The Court Can Allow More Than 14 Hours For A Deposition

Certainteed Corporation v. Superior Court
(Cal. Ct. of App., 2d Dist.), filed January 8, 2014, published January 8, 2014

KEY FACTS

William Hart filed a complaint in July 2013 against numerous defendants seeking damages for personal injuries arising from exposure to asbestos. The trial court determined, in an order filed on October 9, 2013, that Hart, then 76 years old, was entitled to trial preference. This was based on a physician’s declaration that there was substantial medical doubt Hart would live more than a few weeks. The trial was set to begin on January 14, 2014.

To preserve Hart’s testimony for trial, his own attorney noticed his deposition. His own attorney then conducted a direct examination lasting approximately 14 hours over several days. Multiple defendants then conducted several hours of examination.

Because the Code of Civil Procedure limited the number of hours a deponent could be examined, two of the defendants filed a noticed motion, on shortened time, for additional time to complete the deposition. Other defendants, including Certainteed Corporation, joined in the motion.

On November 25, 2013, the day before the hearing on the motion, Hart’s counsel suspended the deposition because the defendants had completed 14 hours of examination.

The trial court denied the motion for additional time to depose Hart. It concluded that under Code of Civil Procedure section 2025.290(b)(3), the defendants were limited to 14 hours of examination.

Various defendants filed a petition for a writ of mandate, seeking an order directing the trial court to grant additional time for the deposition.

The Court of Appeal granted the petition.

The appellate court found that the trial court’s ruling was based on an erroneous determination that it did not have the discretionary authority to permit Hart’s deposition to exceed 14 hours. Because the trial court concluded it did not have that discretion, it had not even considered whether there were circumstances that warranted permitting the various defendants to spend more than 14 hours deposing Hart. Because the trial court had not done so, the appellate court ordered it to revisit the matter and determine if there was good cause for letting the deposition exceed 14 hours.

In making this ruling, the appellate court took several very unusual steps. First, it issued the writ without allowing oral argument. Second, it ruled that its decision shall be final immediately upon its filing. The court took these unusual steps because of the current state of Hart’s health, his right to a trial preference, and the imminent trial date.

 

Factually Devoid Discovery Responses Did Not Support A Summary Judgment

Ahn v. Kumho Tires, U.S.A., Inc
(Cal. Ct. of App., 4th Dist.), filed January 22, 2014, published January 22, 2014

Steven Ahn and his company, New Star, sued Kumho Tire for breach of contract. The complaint contained detailed allegations about the contracts between Ahn and New Star on the one hand and Kumho, on the other, including their formation and alleged breaches. Copies of the relevant contracts were attached as exhibits to the complaint.

Kumho propounded interrogatories and production requests to Ahn and New Star. The interrogatories sought “all facts” supporting the various allegations of the complaint. The production requests sought supporting documents.

For example, one interrogatory asked Ahn and New Star to state all facts supporting their allegation that “there is now owing and due from defendants the sum of at least $1,765,440.00…” Ahn and New Star responded: “At this time, responsive party does not know whether any facts responsive to this request exist. Discovery is continuing.”

Kumho moved for summary judgment. It did so based on its assertion that the discovery responses established that Ahn and New Star could not prove essential elements of their case. It relied on seemingly well established case law.

Kumho also moved for a sanction award under Code of Civil Procedure section 128.7. It did so based on its assertion that Ahn and New Star filed a complaint which lacked any factual support.

Ahn and New Star opposed the motion. They submitted Ahn’s detailed declaration laying out the facts supporting his and New Stars’ claims. They also submitted their attorney’s declaration explaining that the factually devoid interrogatory answers were the result of a mistake by a new attorney working in counsel’s office. Ahn and New Star then served amended responses to the discovery.

The trial court, relying on D’Amico v. Board of Medical Examiners, 11 Cal.3d 1 (1974), disregarded Ahn’s declaration as contradicting his discovery responses. It then granted Kumho’s motion for summary judgment. However, it denied Kumho’s motion for sanctions.

Ahn and New Star appealed the judgment. Kumho appealed the denial of its sanctions request.

The Court of Appeal affirmed in part and reversed in part.

In the opinion’s published portion, it held that a sanctions award is discretionary and that given the information in Ahn’s declaration in opposition to the motion for summary judgment, the trial court did not abuse its discretion in denying sanctions.

In the opinion’s unpublished portion, the court held that the trial court erred in granting a summary judgment.

It ruled that the trial court used an overly broad and erroneous application of the D’Amico rule. In light of all the evidence, a reasonable trier of fact could have credited counsel’s explanation that the discovery responses were a mistake and found the contradictory statements in Ahn’s declaration credible. Ahn and New Stars’ discovery responses were not “clear and unequivocal admission[s]” of fact which, in light of all the evidence adduced on the motion, could not be credibly contradicted or amended.

In D’Amico, the California Supreme Court held, “[w]here…there is a clear and unequivocal admission by the plaintiff, himself, in his deposition” and the plaintiff contradicts that admission in a subsequent declaration, “we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.” However, “an uncritical application of the D’Amico decision can lead to anomalous results, inconsistent with the general principles of summary judgment law.”

Thus, D’Amico should not be interpreted, “as saying that admissions should be shielded from careful examination in light of the entire record,” because the record may contain evidence that credibly contradicts or explains what might appear to be clear and unequivocal admissions, if the admissions are viewed in isolation and without reference to the other evidence.

Interestingly, the court chose not to publish its summary judgment holding. Perhaps it realized that doing so would open the door to discovery abuses in which a plaintiff would hide information from a defendant and then claim a “mistake.”

 

Requests Should Have Not Been Deemed Admitted

St. Mary v. Superior Court
(Cal. Ct. of App., 6th Dist.), filed January 31, 2014, published January 31, 2014

Lisa St. Mary sued Thomas Schellenberg and his wife, Katherine Mills, for damages resulting from a lost investment. Schellenberg and Mills each propounded requests for admissions (RFAs) directed to St. Mary. There were a total of 119 individual RFAs. St. Mary made two written requests for a two-week extension to respond. However, St. Mary did not respond to the requests before the time to respond had expired.

St. Mary responded to the RFAs four days after the due date. There were no objections, just admissions and denials. However, some of the admissions and denials contained additional information to clarify what was being admitted or denied.

Four days after the responses were served, without any attempt to meet and confer, Schellenberg and Mills filed a motion requesting that the 119 RFAs in their entirety be deemed admitted under Code of Civil Procedure section 2033.280, subdivision (b).

The trial court found that some of the responses complied with the requirements of the Code of Civil Procedure, but that some did not. It concluded that the motion as to the responses to the Schellenberg RFAs should be granted, and that any responses that were not unqualified denials would be deemed admitted. It, thus, deemed 41 of the 105 RFAs admitted, and awarded sanctions in favor of Schellenberg and Mills. The court’s order omitted any reference to the motion to deem admitted the 14 RFAs propounded by Mills upon St. Mary.

St. Mary sought writ relief.

The Court of Appeal issued a writ of mandate directing the trial court to vacate its order and enter a new one denying the motion.

The court first noted that RFAs are not like other methods of discovery. RFAs are being designed not so much to “discover” the facts, but rather to expedite trial preparation by making it unnecessary to try an otherwise triable issue of fact or law. As a result, an appellate court does apply the rule that a reviewing court should rarely interfere with pretrial discovery orders, particularly where such orders operate to grant discovery.

If responses to RFAs are not timely served, a responding party waives any objections to them. Under current statutory law, however, a propounding party must take affirmative steps—by bringing a formal “deemed admitted” motion—to have RFAs to which timely responses are not received deemed admitted. Unless the court determines that the responding party, “has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220,” it must order the RFAs deemed admitted.

Thus, a responding party’s service, prior to the hearing on the “deemed admitted” motion, of substantially compliant responses, will defeat a propounding party’s attempt to have the RFAs deemed admitted. If the propounding party believes that the responses to RFAs are deficient in some respect or that any objections thereto are not well taken, he or she may make a motion to compel further responses.

The court found that the motion was a “deemed admitted” motion and not a motion to compel further responses. Since the motion was a “deemed admitted” motion and St. Mary had served her tardy responses not only before the hearing on the motion but also before Schellenberg and Mills filed it, the trial court could only deem the requests admitted if they did not substantially comply with the Code of Civil Procedure requirements.

The Code of Civil Procedure does not include a definition of “substantial compliance” as it applies to a section 2033.220 RFA response.

The trial court looked at “substantial compliance” by looking at individual responses and what they said or did not say. The appellate court disagreed with the trial court’s approach. It found that “substantial compliance” had to be determined by looking at the responses as a whole.

The court noted that section 2033.280 requires the court to evaluate whether the “proposed response to the requests for admission” substantially complies with section 2033.220. The word “response” rather than “responses” indicated that the legislature was looking at the document as a whole rather than at the individual responses separately. It also found support for its conclusion in the fact that there is an effective statutory vehicle by which a propounding party may seek a court order compelling a responding party to cure individual RFA responses deemed not to be in compliance with section 2033.220 – a motion to compel further responses under section 2033.290.

Because St. Mary’s responses as a whole substantially complied with the Code of Civil Procedure, the requests should not have been deemed admitted.

The court then went on to consider whether the individual responses would have been in substantial compliance with the Code of Civil Procedure. It found that they did. The court ruled that although each of the requests that the trial court had deemed to have been admitted contained language besides an unequivocal admission or denial, that was not necessarily improper. It noted that although “[a] denial of all or any portion of the request must be unequivocal [citation]..reasonable qualifications are not improper.”

Significantly, the court said:

“The RFA device is not intended to provide a windfall to litigants. Nor is the RFA procedure a ‘gotcha’ device in which an overly aggressive propounding party—who rejects facially reasonable requests for a short discovery extension and thereafter files the wrong discovery motion after service of a slightly tardy proposed RFA response that is substantially Code-compliant—may obtain a substantive victory in the case by having material issues deemed admitted.”

 

Terminating Sanctions Were Upheld

Los Defensores, Inc. v. Gomez
(Cal. Ct. of App., 2d Dist.), filed January 24, 2014, published January 24, 2014

Los Defensores, Inc. is an “attorney joint advertising group” that focuses on the Spanish speaking market in Southern California. It sued Armando Vera and Rosa Gomez for unfair competition. It asserted that Vera and Gomez used a telephone number substantially similar to its own number that they would receive calls that should have gone to Los Defensores.

The trial court ordered the entry of a default against Vera and Gomez as a sanction for discovery abuse, and issued a default judgment awarding Los Defensores damages and injunctive relief.

The Court of Appeal affirmed. It rejected Vera and Gomez’s arguments that the discovery sanctions were improper, that the complaint stated no cause of action, that they received inadequate notice of the damages respondent sought, and that the damages awarded were excessive.

The court first found that there was substantial evidence in support of the factual findings underlying the trial court’s determination that terminating sanctions were warranted.

The court next addressed whether the complaint actually stated a cause of action. The court recognized that while a defendant in default confesses the material allegations of the complaint, the trial court may not enter a default judgment when the complaint’s allegations do not state a cause of action. Thus, it looked at what the complaint alleged and concluded that the complaint did, in fact, state a cause of action for unfair competition based on Vera and Gomez’s use of a similar phone number.

The court then held that Vera and Gomez had received adequate notice of the amount Los Defensores sought. The complaint sought an accounting and therefore did not require a statement of damages and in any event, Los Defensores’ motion for an injunction included a statement as to its claimed damages. This was served upon Vera and Gomez with sufficient time.

Finally, the court held that the amount of damages awarded by way of the default was not excessive.

 

Modern Summary Judgment Practice Can Be Problematic

Cheal v. El Camino Hospital
(Cal. Ct. of App., 6th Dist.), filed January 31, 2014, published January 31, 2014

Carol Cheal brought an action for age discrimination against her former employer, defendant El Camino Hospital.

The hospital filed a motion for summary judgment. It asserted 77 supposedly undisputed facts in support of its motion. Cheal responded to each of these assertions and submitted 37 additional facts that she contended created a triable issue of material fact and precluded summary judgment. Each party lodged numerous objections to the evidence put forth by the opposing party.

The trial court issued an order sustaining some objections, overruling the rest, and granting the motion for summary judgment.

The Court of Appeal reversed. It found:

“The record clearly raises triable issues of fact with respect to whether plaintiff was performing adequately at the time of her discharge and whether the discharge was the product of a belief to the contrary or of discriminatory animus against older workers on the part of plaintiff’s immediate supervisor.” In reaching this conclusion, the court noted: “As too often happens, the merits of the case were obscured to the point of invisibility in the deluge of statements, counter-statements and objections, that mark modern summary judgment practice.”

 

An Illegal Alien Can Be A Lawyer

In re Sergio Garcia on Admission
(Cal. Sup. Ct.), filed January 2, 2014, published January 2, 2014

Sergio Garcia is a Mexican citizen illegally living in California. While living in California, Garcia graduated high school, college and law school. He also took and passed the California bar examination. As with others who had passed the bar examination and who were determined to be of good moral character, the Committee of Bar Examiners submitted Garcia’s name to the California Supreme Court for admission to the practice of law. In doing this, the Committee alerted the Supreme Court to the fact that Garcia was not lawfully living in the United States.

After reviewing the pertinent state and federal statutes, the Supreme Court concluded that there was no bar to Garcia receiving a license to practice law in California.

The Court however, noted that federal law might preclude Garcia from practicing law as an “employee” of a law firm, corporation, or governmental entity and might preclude him from practicing law as a sole practitioner for a fee. On the other hand, the Court noted that there was general agreement that “a licensed undocumented immigrant would not violate federal law if he or she provided legal services on a pro bono basis or outside the United States.”

The fact that Garcia might be precluded from practicing law as an “employee” of a law firm, corporation, or governmental entity and might be precluded from practicing law as a sole practitioner for a fee, was not a sufficient reason to deny him a license to practice law.