Cal Biz Lit

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.

Another Welding Rod Defense Verdict

    Not too long ago, it looked as though welding rod litigation might be the next big thing in mass / toxic tort litigation.  There were thousands of claims, many in the federal MDL, in which plaintiffs claimed Parkinsonism and other neurological symptoms from exposure to welding products.

    The second one of these went to trial last month in Alameda Superior Court, Thomas v. Lincoln Electric Company (Case No. RG0722122), and as with the first one, the jury came back -- yesterday -- with a defense verdict.

Product Liability Defense White Paper Available

    One of CalBizLit's goals this year is to increase its output of white papers. The white papers are generally designed to give good subject matter overviews for corporate clients  from out-of-state and others who haven't had the pleasure of spending a whole bunch of time in the California litigation trenches, but they're obviously available to anyone who has an interest.  They generally evolve from posts, but are longer, more comprehensive, and, I hope, without some of the rough edges of blog posts.

    I got a chuckle not long ago on a conference call involving a Proposition 65 matter.  My client was on the phone, another defendant's GC was on the phone, and so was the other defendant's California counsel, whom I hadn't met.  Co-defense counsel candidly told us that he knew who I was:  when he first started getting involved in Prop 65 defense, he downloaded my white paper to give himself an overview.

    Hey, whatever works.

    Anyway, CalBizLit has today uploaded a new white paper on defending the California product liability case.  It's available here, and a link will remain over in the column to the right with the other white papers.

Why We On The Defense Side Like Removal Jurisdiction

    The latest California Verdict Search (reports available in paper version only) reports a defense verdict in the United States District Court for the Southern District of California (that's San Diego) in a case called Wawanesa General Insurance Company v. Applica Consumer Products, Inc.  The case is not one of great consequence -- a fire subrogation case involving a Black & Decker toaster, with about $266,000 at stake. 

    But the interesting thing is the report that

the court found that the fire experts retained by Wawanesa committed a spoliation of evidence by failing to retain other potential causes of the fire (the stove and appliances) for inspection by Applica and causing further damage to the Applica toaster oven by shipping the oven via UPS prior to allowing a joint inspection.  The jury was instructed that this destroyed evidence would have been favorable to Applica.

        This is the kind of sanction we are much, much more likely to see in Federal Court than in California state court.  You can see the defendant's two briefs on the spoliation issue here and here.  The proposed jury instruction (which the court evidently gave) is here.  You may not be surprised to learn that the jury deliberated 22 minutes before returning its defense verdict.  Maybe it was a long walk to the jury room.

When Is That Notice of Appeal Due? Hmm, Hard to Say

    I understand there is one thing California has in common with many jurisdictions:  the rule on when notice may be given of an appeal is strict and pretty inflexible.  Under California Rules of Court Rule 8.104(a), the Court of Appeal lacks jurisdiction to hear an appeal unless notice of the appeal is filed the earlier of:

• 60 days after the superior court clerk mails the party filing the notice of appeal either a document entitled "Notice of Entry of Judgment" or a file-stamped copy of the judgment, showing the date either was mailed;  or
• 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry of Judgment" or a file-stamped copy of the judgment, with a proof of service;  or
• 180 days after the entry of judgment.

    In this era of electronic mail, what does it mean that the court clerk "mails" a document?  Particularly when the court has established procedures for service through the court's electronic filing system?

    We now have conflicting answers to that question, as explained after the jump.

Want A Great Big Verdict Against The State of Califoria? Go to Nevada

     I don't know how I missed this.  But Lawyers USA reports that the largest verdict in Nevada last year was against . . . the California Franchise Tax Board.  Under California law, the state and its agencies are immune from liability for tax collecting activities.  (They are also immune from punitive damages.)  In 2003, in Franchise Tax Board of California v. Hyatt (2003) 538 U.S. 488, the U.S. Supremes ruled that the Nevada courts did not have to extend full faith and credit to this statutory immunity.

    So this past August, after a four month trial, a Nevada jury awarded Gilbert Hyatt $388 million against the Franchise Tax Board for fraud, intentional infliction of emotional distress, abuse of process, breach of a confidential relationship and invasion of privacy.  Hyatt moved from California to Nevada before he began receiving millions of dollars in licensing fees from various inventions, but an allegedly over-zealous tax agent decided he still resided in California, vowed "to get that Jew bastard," went through his trash and mailbox, disclosed his Social Security and credit card information to third parties, etc.

    California has not had a balanced budget in nearly a year, and is getting ready to defer tax refunds and start paying creditors with IOU's.  So I suspect that Mr. Hyatt's collection efforts may stall for a bit.