Cal Biz Lit

Trial Court Strikes Blow For Common Sense In Anti-"Ladies Day" Case

    CalBizLit previously blogged here and here about that brave crusading lawyer and sometime litigant Alfred Rava's efforts to eliminate the scourge of business discrimination against fathers, who sustain humiliation and other forms of emotional distress when they are deprived of stupid hats and other ballpark giveaways on Mother's Day.  Now comes word of his efforts to assert a class action of the same type against Bear Valley Ski Resort.

    Didn't work out so well.  L.A. Superior Court Anthony Mohr denied Rava's motion to certify a class of 995 helpless victims of Ladies Day discrimination. Judge Mohr noted that because the Unruh Act, under which Rava proceeded, provides for minimum penalties of $4,000, there was no need for a class action. 

Assuming plaintiff succeeds on the merits, Bear Valley Ski Resort would be liable for mandatory statutory penalties of $4,000 X 995 putative class members.  The product of $3,980,000 constitutes a draconian sum that would strip Bear Valley of its assets.

You can read Judge Mohr's ruling here.  Some thoughtful commentary on Mr. Rava appears here.

    Hat tip to Legal Pad.  And when selecting the graphic to run with this post, I really wanted to use the brochure with the  "ski bear" homonym, but this is a family blog and I just couldn't do it.

Court of Appeals Affirms Exclusion of Junk Science In Mold Case

    CalBizLit has lamented on many occasions the facts that (a) California is not a Daubert jurisdiction, and (b) even our version of the Frye test (known in these parts as the Kelly test) has limited application, being available only to exclude new tests.

    But once in a great while, we see a trial court exclude junk science from the courtroom anyway, and we see a Court of Appeal affirm the trial court for acting as as a gatekeeper.  Today, it's Los Angeles Superior Court Judge Warren Ettinger and Division Four of the Second Appellate District who give CalBizLit that warm and fuzzy feeling he gets when pseudoscientific nonsense gets excluded.

    Our case today is Dee v. PCS Property Management, Inc. (2009) ___Cal.App.4th___ (B18600).  It's a mold case.  And as a special bonus, it's the second reported decision where the courts gave thumbs down to Dr. Gary J. Ordog, expert witness in mold exposure cases.

More after the jump.

Nine Votes. That's Nine Votes. On Every Question.

    Unlike the federal courts, where verdicts must be unanimous, California courts require that in Civil cases, 3/4 of all jurors agree.  That's Code of Civil Procedure section 618.  In most cases of any consequence, we use "special verdicts" -- a series of questions for the jury to answer, usually ending with questions to be answered -- if necessary -- about damages.  After the verdict is announced in open court, either side can request that the jurors be individually polled, and if nine of them don't each agree with the verdict's answer to each of the questions, back to the room they go.  (It doesn't have to be the same nine for every question.)

    In complex cases with multiple causes of action, the special verdict can have many questions and go on for pages.  Drafting special verdict forms (and arguing them to the jury) is therefore very much an art form. 

    In order to avoid confusion, many trial judges give each juror a colored copy of the verdict form to fill out with his or her final vote, so that each will have a "cheat sheet" when polled.  Some of the more creative judges hand out "yes/no" paddles for the jurors to raise indicating their vote on each question.

    In the case of Keener v. Jeld-Wen (May 7, 2009) ___Cal.4th___ (S16430), decided last week by the Cal Supremes, the trial court messed up the polling, neglecting to poll one of the jurors on the verdict question apportioning liability between the parties.  Since the verdict was over $4 million, and the verdict apportioned 80% of the fault to the defendant, this was of more than academic interest to both sides.  And the defendant thought it worthwhile to discuss the significance with the Court of Appeal and then the Supremes.

    Too bad for the defendant, who should have discussed it with the trial judge.  And before the jury was sent home.  Per the Cal Supremes:  the verdict is presumed correct.  And if the irregularity isn't raised in time to correct it, the irregularity is waived.

Dole Banana Workers' Contempt Hearing Set For This Friday

     Like practically every other California law blogger, I've put up a number of posts on the bizarre goings on in the Los Angeles Superior Court DBCP cases brought by supposed Nicaraguan banana plantation workers against Dole, many of which were dismissed by Judge Chaney last month for fraud.  You can see past posts here, here, here and here.  Judge Chaney's from-the-bench ruling dismissing cases for fraud is like nothing I've ever heard or read before, and thanks to The American Lawyer, the transcript is available here.

    Judge Chaney has apparently set a contempt hearing for Friday, May 8 at 3:00 p.m. p.d.t.  (I say apparently because the on-line docket is a little ambiguous).  Courtroom View Network will have live recorded on-line coverage available here.  Courtesy of CVN, I hope to have a link to a portion of the hearing available here over the weekend or Monday morning.

  Update:  CVN advises that due to technical problems, it won't have live coverage this afternoon.  It does expect to have recorded coverage at its site on Monday.

Not Hard To See That Coming (Dole DEHP Litigation Department)

    L.A. Superior Court Judge Victoria Chaney dismisses two cases by Nicaraguan banana workers against Dole because of attorney misconduct.  Per Bloomberg.com: 

“What has occurred here is not just a fraud perpetrated on this court, but a blatant extortion of the defendants,” Chaney said. “I cannot in good conscience allow this case to continue.”

    Further:

Chaney said she will refer the case to the appropriate state bar associations and to prosecutors. 

Dole Fraud Hearing Begins

    I've blogged here and here about the Dole DBCP cases in Los Angeles.  First, six Nicaraguan filed workers tagged the company for $3.2 million, claiming sterility from exposure to this nematocide while working in the fields.  Plaintiffs were awareded punitive damages, which the trial judge took away, and she reduced the compensatoris to $1.58 for good measure.  Then the trial judge got wind that many of the related cases might be invented and ordered a hearing, which started yesterday.

    The LA Times reports that Dole's attorney, in his opening statement, told the court that "witnesses feared being killed for testifying about the scheme," and described a "decades long" scheme to defraud companies.  Judge Chaney "said she was concerned for the safety of investigators and attorneys and feared obstruction of justice and interference with due process." 

    But here's the real tell: 

Attorneys for the plaintiffs who sought to sue Dole made only a brief opening statement. But one of the lawyers, Michael Axline, said he agreed with the Dole lawyer that "all parties were in a nightmare situation."

He expressed regrets for the actions of a onetime co-counsel in Nicaragua who is now accused of engineering the fraud.

Courtroom of the 21st Century

    Like many blawgers, I subscribe to feeds from lots of other blawgers, and I make a particular effort to follow posts from lawyers on the plaintiff side of the kinds of kinds of cases I defend.  Among those, one of my favorites is Scott Leviant's Complex Litigator. 

    Today, I'm particularly appreciative of Scott's catch of the live excerpt on Courtroom View Network of a portion of the plaintiff's opening statement in the Fen-Phen case being tried earlier this month in Judge Mohr's courtroom in Los Angeles' Civil Courts West.  The excerpt is noteworthy for at least three reasons:  it shows the kind of well-developed opening statement you are apt to see in a well-tried modern product liability case;  it shows a very skillful use of Power Point in the courtroom;  and it's a preview of the kind of resources I suspect will become commonplace on the web in the very near future.

Cal Supremes To Decide Impact of Proposition 64 In Class Action UCL Cases

    To review:  Before November, 2004, any person could bring an action under California's Unfair Competition Lawseeking injunctive and other equitable remedies against a company for a business practice that was unlawful, unfair or fraudulent.  There was no requirement that the plaintiff have been affected in any way by the company's practice (or that he or she had ever conducted business with the company).  The statute authorized litigation by nominal, wholly uninvolved plaintiffs.

    That all changed in the 2004 election, when the voters passed Proposition 64.  This initiative amended the UCL, requiring, as a matter of standing, that a claimant have sustained "injury in fact" and "lost money or property" "as a result of" the unlawful, unfair or fraudulent practice.  The initiative also required that a plaintiff meet the standards of Code of Civil Procedure section 382, California's class action statute.

    In the case of In re Tobacco II Cases, no. S147345, the Cal Supremes are considering two issues:  "(1). . . must every member of the proposed class have suffered 'injury in fact,' or is it sufficient that the class representative comply with that requirement?;"  and "(2) In a class action based on a manufacturer's alleged misrepresentation of a product, must every member of the class have actually relied on the manufacturer's representations?"

    The case was argued yesterday.  UCL Practitioner has complete coverage of the arguments here.  It looks to me like a 4 - 3 vote one way or the other, but we'll find out in the next ninety days.  A "yes" answer to either question would be a big win for plaintiffs in UCL litigation, and would potentially broaden the availability of the UCL a good deal.

California Judges: Recusal For Campaign Contributions?

    As lots of people know, oral argument is set before the US Supremes next week in Caperton, et al. v. A.T. Massey Coal Co., et al.  As the SCOTUS docket summary puts it: 

The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment.

    The New York Times presents the long version of the case here.

    California has contested judicial elections for trial court judges, who run for six year terms.  Appellate and Supreme Court Justices stand for a yes or no vote every twelve years.  As the San Francisco Chronicle's SFGate reported this morning, a quasi-official task force recently proposed a rule requiring judges to disqualify themselves from any case involving a party who has contributed $1,500 or more to their campaigns.  That proposal now heads to the Judicial Commission.  If CalBizLit's crystal ball is functioning properly, the proposal will thereafter never be heard from again.  One of many members of the judiciary expressed opposition:

"You're going to have panel-fixing like crazy," said Judith McConnell, an appellate justice in San Diego, predicting that wily and well-heeled litigants would rig their three-member panels by sprinkling $1,500 contributions among jurists they didn't like.

Court of Appeal to Hear Proposition 65 Tuna Case

    In May, 2006, San Francisco Superior Court Judge Robert Dondero ruled against the Attorney General's office in its Proposition 65 enforcement action against the three primary sellers of canned tuna.  The AG had sought Proposition 65 warnings because of the presence of methylmercury in canned tuna.  Judge Dondero ruled that FDA warning requirements preempted state warning requirements for canned tuna, that most of the mercury was naturally occurring (so that no warning is required) and, according to news reports, that the amount of mercury was below the safe harbor levels.

    The AG has appealed, and the appeal will be argued tomorrow, January 27, before the Court of Appeal District 1, Div. 4, here in San Francisco.  In a letter to counsel dated January 5, the Court made the following request:

The court requests that counsel be prepared to address at oral argument the issue of whether substantial evidence supports the trial court's finding that methylmercury in tuna is "naturally occurring.

   

    My tea-leaf reading would suggest that this request is better for the tuna industry than for the AG.