Appellate Law & Practice

Another California opinion re: revival of a limitations statute in a punitive damage claim and the Ex Post Facto Clause

I previously wrote about a California appellate decision in 21st Century v. Superior Court, where the court correctly concluded revival of a previously lapsed limitations statute did not violate Ex Post Facto Clause, even though it took an unnecessary wrong road to reach that result.   I feel somewhat vindicated by Romand Catholic Bishop of Oakland, in which the First District also held that revival of a previously lapsed stat. of limitations in a punitive damage claim situation did not violate the ex post facto clause.  The court concluded, among other things, that Landgraf was not implicated because revival of a lapsed limitations statute did not change the substantive requirements for recovery of punitive damages.

"At issue here, however, is the revival of a lapsed civil limitations period in order to restore common law remedies that actually existed at the time of the alleged misconduct. As noted, numerous federal and California decisions have held that there is no constitutional impediment to such legislation. In light of those decisions, and in the absence of any such issues or discussion in Landgraf, we do not believe Landgraf can be read as having any applicability here. Instead, as we explain below, we hold that a statute reviving the limitations period for a common law tort cause of action, thereby allowing the plaintiff to seek punitive damages, does not implicate the ex post facto doctrine and therefore does not trigger the intent-effects test at all."

Thanks to Prof. Martin's California Appellate Report for brining this case to my attention.

California Supreme Court survey on publication of appellate opinions

A survey of appellate lawyers is being conducted by the California Supreme Court's Advisory Committee on Rules for Publication of Court of Appeal Opinions. The Committee's task is to "review[] the current standards used by the Courts of Appeal and the Supreme Court in determining which Court of Appeal opinions should be certified for publication and [to make] recommendations to the Supreme Court on what changes, if any, should be instituted to better ensure that appropriate cases are published." The deadline for taking the survey is May 13, 2005. If you want to take the survey, click here.

Let the cats roam free

I always thought that some of the more interesting / silly opinions are unpublished.  Here is a gem of an opinion I found while doing legal research for one of my civil cases.  It is cat-bite case, which generated three (!) separate opinions from a 3-justice panel. 

The facts in Goldshine v. Lafferty are not complicated.  Plaintiff and his wife were taking a leisurely walk on a street in Los Angeles.  While they were walking down the block, a cat approached Plaintiff, and rubbed on his leg.  Plaintiff petted the cat, picked it up, and discovered it had a tag with name “Tommy.”  Plaintiff put Tommy down and continued to walk.  The cat followed, meowing.  But when Plaintiff bent over and petted the cat behind the ear, true to its feline nature, the cat suddenly bit his hand, causing what the opinion describes as “serious personal injuries.”  Why a cat bite, which likely resulted in medical specials of no more than $100, generates a lawsuit against the cat’s owners, which was litigated through appeal, is beyond me.  But putting practical considerations aside, Plaintiff did file a strict liability / negligence lawsuit, which the trial court rightly tossed on a motion for summary judgment. 

The appellate court reverses in part and affirms in part, though the justices had trouble agreeing on the reasons for their decision.  My guess is that the author of the lead opinion, Justice Mosk (not THAT Mosk) never had any pets.  That’s the only reasonable explanation for his belief that the defendants might have a legal duty to keep their domestic cat tethered.  I am thinking of mailing Justice Mosk a CD with a song by a Russian rock group Bravo (very popular in the 1980’s Soviet Union), which talks about common cat behavior.  The only sensible opinion here is the dissent by Justice Grignon.  She does recognize that it is common for a domestic cat to “roam wild and free” and that it is not uncommon for a cat to bite and scratch when a stranger picks it up, for whatever reason.  Cats are kind of sensitive about their privacy and independence.

Come to think of it, the cat may actually have a claim against Plaintiff for assault, battery, and violation of its California constitutional right to privacy.  I believe one of my former law school classmates has a legal practice devoted to pets and pet-related issues.  I should call her and tell her about this case.

On a more serious note, I think this case should have been published and made a part of a law school textbook on Legal Ethics.  I would make it a required reading when discussing certain claims that should not be brought on the grounds that the claim is just plain stupid.

The defendant's insurer's financial condition is not discoverable in California

I thought I'd share this California opinion because it raises a discovery issue that probably comes up often in the federal court practice.  In fact, the opinion does mention the federal law, but only to state that reinsurnace information might be discoverable in insurance bad faith cases or in dec. relief actions, where relevant to the parties' claims and defenses.

Catholic Mutual Relief Society v. Superior Court is a very significant opinion for civil practitioners, particularly on the defense side.  The Second District Court of Appeals in Los Angeles held that the plaintiffs are not entitled to discover information concerning the defendant's insurer's financial health (reinsurance information, etc), even if the plaintiffs claim such information would help them formulate settlement strategy.  The Court reasoned that sec. 2017 (b) of the California Code of Civil Procedure only allows discovery of the defendant's insurance coverage (existence of policy, policy limits), but does not permit far-reaching discovery into financial health of third parties. 

Here, the Court gets it right from the legal and the practical prospective.This is a case where the trial court (settlement judge) came up with what he thought was a practical solution to help settlement, without thinking of the wider implications of his decision.  This discovery dispute arose in the coordinated proceedings, which encompass numerous claims against the Catholic Church by victims of sexual abuse by the clergy.  It is beyond dispute that knowing intricate details concerning the defense insurance coverage would really help the plaintiffs formulate settlement stragegy, particularly in such a huge case.  Indeed, by discovering information like the amount of the reserves on the policy, the plaintiffs would not only know how much $$ the defense really has, but also how strongly the defense views the parties' respective positions in the case. 

But as the Court points out, where does this stop?  One can make an equally compelling argument that the defense could really use the information about the plaintiff's and their attorneys' financial health for the purpose of settlement because it would help to determine whether the plaintiffs are really ready to litigate the case to the bitter end.  It is unlikely that the plaintiff's bar would support such broad discovery into the plaintiff's financial conditions.  Therefore, while the Legislature could amend C.C.P. sec. 2017 (b) to allow for broader discovery into the parties' and their insurers' financial condition, they should probably leave it alone.

Payment in full sometimes is not payment in full

When one agrees to accept a payment as one "in full", does it really mean "payment in full?"  According to the California Supreme Court, the answer is - sort of.

In Parnell v. Adventist Health System / West, the high court held that when a hospital treats an injured plaintiff and then accepts the contractually-agreed upon reduced rate from the plaintiff's medical insurance provider as "payment in full," the hospital cannot then assert a lien under the Hospital Lien Act (Cal. Civ. Code, secs. 3045.1-3045.6) against the plaintiff's damage recovery from the third-party tortfeasor.  The court reasons that acceptance of the payment in full from the plaintiff's insurance carrier extinguishes the plaintiff's obligation to the hospital and, thus, removes any basis for the assertion of the HLA lien.

This opinion is remarkable, however, not for its 23-page dissertaion on why "payment in full" really means payment in full.  That's because in the Court's eyes, it really does not.  After waxing philosophically about the hospitals dire financial conditions, the Court throws the hospitals a life line from its own decision:

"By precluding the Community Hospital from asserting a lien under the HLA in this case, we simply give effect to its contracts.  [Citation.]  If hospitals wish to preserve their right to recover the difference between the usual and customary chanrges and the negotiated rate through a lien under the HLA, they are free to contract for this right.  Our decision today does not preclude hospitals from doing so."  Can anyone guess what revisions are going to be made to the contracts between hospitals and insurance providers?

I am mystified by the Court's apparent belief that the hospitals need to be rescued from a financial crisis.  As I see it, the hospitals stand to double-dip if they follow Justice Brown's advice.  First, they get volume of patiens by entering into these "preferred" agreements with insurance carriers.  Second, they get to recover the full amount of charges for the treatment they would have been entitled to receive if they did not give the insurance companies a volume discount.

I am equally mystified by the Court's lack of realization that if the HLA lien is not extinguished by the payment in full by the plaintiff's insurance carrier, this is going to make settlement really difficult.  In many cases, that lien (particularly at the "customary" level) is going to eat up all or most of the available coverage / funds to pay judgment on settlement, leaving no funds for wage loss, gen. damages, or attorneys' fees.  If that's the scenario, where is the settlement "carrot?"

CA appellate court upholds legislative revival of previously time-barred insurance bad faith claims against an ex post facto challenge

On March 30, 2005, the Second District Court of Appeal in Los Angeles issued an opinion, 21 Century Insurance v. Superior Court, upholding a legislative revival (CCP, sec. 340.9) of a previously time-barred bad faith insurance punitive damage claim against an Ex Post Facto challenge filed by an insurance company. 

In the opinion, Justice Croskey seems to reach the right result, but takes a long and unnecessary road to get there.  There is a controling Cal. Supreme Court case, Peterson v. Superior Court (1982) 31 Cal.3d 147, which holds that a judicial decision allowing recovery of punitive damages against a drunk driver did not violate the ex post facto clause because punitive damages are civil in nature.  The 21 century courts questions the viability of that decision in light of the U.S. Supreme Court's decision in Landgraf v. USI Film Producs (1994) 511 U.S. 244, 281, where the court stated that retroactive imposition of punitive damages for preenactment conduct could raise ex post facto issues.  It thus proceeds as though Peterson is not controlling.

In my view, the 21 Century court misreads Landgraf.  In Landgraf, the Supreme Court only said that a statute, which retroactively imposes punitive damages on acts that were not subject to those damages before its enactment, could raise ex post facto issues.  But section 340.9 does not impose punitive damages on preenactment conduct.  Instead, it only extends a procedural opportunity to seek those damages without changing the substantive requirements for recovery of punitive damages against an insurance company in a bad faith action.  Such procedural changes do not raise constitutional retroactivity issues even if they work to a disadvantage of one of the parties.  (Landgraf v. USI Film Producs, supra, 511 U.S. at p. 275, citing McBurney v. Carson, 99 U.S. 567, 569 (1879).)  So, Landgraf does not really raise any doubts about continuing viability of Peterson, at least as it is applied in this case.

Professor Martin's web log provides an interesting take on this case.  I think he is right when he says that this issue would make for a great law review article (if one cares to waste their time writing about such obscure subjects:)

I suspect that this case may go up all the way to the Supreme Court.  There is a lot at stake and there is too much insurance money behind the petitioners not to litigate this thoroughly.  But Supreme Court review here is not a given, particularly in light of the fact that they declined to review the 20th Century case.

Proposition N - a colossal waste of taxpayer funds.

Two days ago, in McMahan v. City and County of San Francisco, the First District Court of Appeal issued a ruling, in which it declared a portion of a 2002 popular initiative Proposition N (better known as now-Mayor Gavin Newsom's creation, Cash Not Care) invalid, but upheld the remainder of the initiative.  If you are a San Francisco voter, your reaction should be somewhere between mild annoyance and rage (memo to postal workers: this last sentence is a joke:)).

Here are the facts (as stated in the opinion).  In 2002, then-SF Supervisor Gavin Newsom proposed a change in the way San Francisco fulfills its state law obligation to provide support to its indigent population.  Instead of simply handing out cash grants to homeless (ranging from $320 to $395 per month), the City would provide those same funds in the form of housing and meal assistance, thereby reducing cash handouts to as little as $59.  The proposal also guaranteed that if the City is unable to deliver those housing and meal services, it would then provide the cash equivalent of those services.  Finally, as an advertised direct benefit of the proposed change, the proposal contained a mandatory funding provision for the services provided to the homeless.  The baseline mandatory funding level in the City budget was almost $14 million.

The idea sounded right to many voters, particularly those who, while being far from Bush supporters, were still tired of observing the homeless claiming some of the best parts in the City.  I would dare to say that Mr. Newsom prevailed in the mayoral election over a very popular Green supervisor Matt Gonzales precisely because of the Care Not Cash initiative (which 60 % of voters approved in 11/02 elections) There was one small problem -when the City began to implement the initiative, it "suddenly" discovered that the mandatory funding provision is not enforceable because the initiative became only a city ordinance, which cannot override the mayor and the board of supervisor's budgetary powers contained in the City Charter (See City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 104-105.)

Two homeless persons in San Francisco sued to invalidate the ordinance in its entirety, but the appellate court upheld the trial court's ruling in favor of the City.  While the court had little trouble acknowledging that the mandatory funding provision was unenforceable, it held that the rest of the initiative, namely the switch from Cash to Care was severable and enforceable.  In reaching this conclusion, the court found that the two parts of the initiative were severable, both grammatically and functionally.

I have two questions.  One - why didn't then-Supervisor Newsom and his team research the legality of the proposed funding mandate BEFORE putting the initiative up for a vote?  Judging from the Court's opinion, the illegality of the mandatory funding part is pretty clear and not open to debate - the case the Court cited was decided in 1988. Since the proposal was coming directly from the City Government, it is difficult to believe no one bothered to check this issue before Proposition N was put together.

Two - the correctness of the Court's ruling on severability is open to debate.  I have no doubt the two portions of Proposition N could be grammatically severed.  I can even see a case fo a mechanical argument that the two portions are functionally severable.  But the functional severability cannot be determined without looking at the initiatve as a whole.  Lookng at Proposition N as a whole, the Care Not Cash portion states that if the City is unable to provide the homeless with the housing and meal services, the homeless get a cash equivalent.  But, without the mandatory funding, this "guarantee" seems like an empty promise.  Or, in the words of the City Attorney, it becomes a suggestion or a policy directive to the future mayors.

Also, unlike the Court, I am not as convinced that the voters would have approved Proposition N if they knew the mandatory funding part was invalid.  While the Care Not Cash idea was the focus of the ad campaign, even the Court acknowledges that the mandatory funding provision was "sold" as a direct benefit of the Care Not Cash proposal.  A more prudent approach would have been to invalidate the entire Proposition. Disclaimer: I do support Care Not Cash as a concept and I did vote for it in 2002.  But I am more then irked by the collosal waste of limited public funds that could have been avoided if the Newsom team did some basic legal research putting Proposition N before the voters.

A pair of CA appellate decisions of interest to criminal law practitioners

Yesterday, the California Court of Appeal issued two published decisions that may be of some interest to those of you practicing criminal defense.

In re Sean W (A107500, First District - San Francisco)--  the court concluded that the last year's change to Welfare and Institutions Code section 731 (b) vested juvenile courts with discretion to set the maximum term of confinement at the California Youth Authority (our little version of Sing Sing for kids) at a term less than the adult maximum sentence for the same offense.   This is a fairly big change because under the old system, the juvenile courts lacked authority for such downward departure regardless of the actual circumstances of the crime.  This case is also near and dear to my heart because I briefed the same issue in one of my cases pending in the same appellate division before the client asked me to abandon the appeal.

People v. Carmony (3rd District - Sacramento) - in this case, the court finally found a case, in which it found that imposing a 25-to-life 3 strikes sentence (our version of the habitual offender statute) for a super-technical violation of the sex offender registration law violates the 8th Amendment prohibition on cruel AND unusual punishment, as well as California's constitutional prohibition on cruel OR unusual punishment .  Here, the defendant did register on time, but failed to update the registration within 5 days of his birthday, even though his address had NOT changed and the parole officer arresting him knew that for a fact. 

It is a rare case that violates the prohibition against cruel and/or unusual punishment.  However, there must be a bottom to that well.  If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law. 

Who would have thought that the Third District is capable of such eloquence and compasion?!

Unfortunately, this decision will be of small comfort to the defendant in People v. Barker (2004) 34 Cal.4th 345, who got 25-to-life for being 5 days late with his registration because of his work situation, after turning his life around and dutifully registering for 10 years.

California appellate court helps shed the state's image of being less than hospitable to out-of-state attorneys:)

California Bar does not seem to like out-of-state competition.  For example, if you are a practicing attorney in another state AND have been a member in good standing for the last 4 years, our bar association will let you take an attorney applicant exam - a 2-day, six essay, and two performance question affair.  Any practicing out-of-state attorney who does not qualify for this "easier" version must take the general bar exam in order to be admitted - 3 days, 6 essays, 2 performance tests, AND a 200-question MBE.  So, one should not be surprised when we don't get reciprocity / waiver into other states'  law practice, even when these states offer it to practicing attorneys from other states.  I learned all of this the hard way in 2002, when I had to take the New York Bar exam for students, as if I have not been practicing in CA for 4 years.

So, I was delighted to read Rodrigues v. Superior Court, in which the Sixth District Court of Appeal held that an affidavit of fault signed by a Portugese attorney (i.e., not licensed to practice in CA) was sufficient to trigger mandatory relief from default provisions of the California Code of Civil Procedure.  I knew that sooner or later we would find at least some use for those unqualified out-of-state miscrients:)

P.S.  If anyone from State Bar is reading this, the devil made me write it:)

Webloggers might be considered journalists for the purpose of First Amendment and / or state media shield law.

Last Friday, Judge James P. Kleinberg of the Santa Clara County Superior Court issued a ruling in Apple Computer, Inc. v. Doe, et al, which forces a weblogger to comply with the subpoena to produce documents identifying the source(s) of its posting regarding new Apple products.  Although the opinion has no precedential value and sort of ducks key free speech issues, it is interesting as to the level of protection afforded to journalists, particularly in its blog form.

For those unfamiliar with the case, it is a lawsuit by Apple against several unnamed people, who allegedly leaked trade secrets about new Apple products to several weblog sites.  The aim of Apple's subpoena was to identify the individuals who provided that confidential trade information to the webloggers.

The decision generated quite a news buzz (at least locally), and one of our NPR-affiliates did a one-hour panel discussion with lawyers and journalism professors regarding possible implications of this decision for webloggers.  Frankly, I think they are overreacting because this ruling barely implicates those concerns.  The judge ducked a dicey issue of whether a weblogger is considered a "journalist" by concluding that even if he is, journalists do not have either a constitutional or a state media shield law privilege to violate penal laws prohibiting publishing of confidential trade secrets. 

If anything, the ruling is more interesting on the issue of whether any journalist has more First Amendment rights (or rights under media shield law) that an ordinary citizen.

Update:  On further reflection, Judge Kleinberg's decision may not be as straightforward as it initially seemed.  True enough, on the First Amendment issue, he towed the line pretty close to Branzburg v. Hayes, though he did not mention a recent D.C. Circuit opinion that supports the ruling. 

But the ruling on the shield law warrants more discussion.  I am no expert in this area, but it seems that our Legislature could have, if it wanted to, give the journalists (including, presumably, webloggers) at least a qualified discovery privilege against a civil discovery request (as opposed to a terrorism investigation).  The decision does not coherently explain why the media shield law does not apply here (i.e., statutory language, leg. history, case citaiton, etc).  Also, in balancing the competing interests, the court treated the plaintiffs' alleged trade secret misappropriation as if it were a crime against national security, which automatically trumps any free speech interests.  This approach might have worked in In re Grand Jury Subpoenas, where there was a criminal investigation in a matter of national security, but not in a routine civil discovery dispute.