Cal Biz Lit

Can You Name Yourself After Your Web Site?

CBL has made a cottage industry pitching the concept that the law is sometimes kinda' strange California.  He's done this both on this blawg and with occasional presentations to non- Californians, featuring titles like "California:  You Don't Have to Be Crazy to Practice Here, But It Helps," and "California, Wierd or What?"  But then, earlier this week, I met some terrific lawyers from Canada, who stole all my fire about crazy legal systems.  That's Canada, where the government underwrites plaintiffs' fees in class actions, etc.  Yow.  They should start up "QuebecBizLit.com."

So in the time-honored spirit of "Can You Top This One," I present for your consideration the case of Robert Edward Forchion, Jr., who lives in New Jersey, manages a Rastafarian temple in Los Angeles, and runs a web site with the URL "NJWeedman.com."  And who sought leave of the California courts to change his name to "NJWeedman.com."   Like folks do.

Ixnay said both the trial court and the Court of Appeal:

A statutory name change to NJweedman.com would last indefinitely. But Forchion might lose the use of his Web site by failing to make periodic registration payments or by breaching the registration agreement. In that event, the Web site name (NJweedman.com) could be registered to someone else and, at the same time, Forchion could keep his new personal name (NJweedman.com). If both parties used that name to conduct business, confusion might result. Further, even if Forchion were allowed to adopt NJweedman.com as his personal name, and he properly maintained it as the name of his Web site, the name might be so similar to another Web site name or trademark that the multiple usage would create confusion.
Alternatively, the name change would associate Forchion‘s new personal name with the Web site‘s advice that individuals violate the law in several respects. A name change should not have that consequence.

In Re Robert Edward Forchion for Change of Name (August 31, 2011) ___Cal.App.4th ___ (Second District Court of Appeal, B227341).

So it looks as though CBL won't be changing his name to CalBizLit.com any time soon.

OK Canadian friends.  The ball is in your court.

Just Say No! To Headless Class Actions

"What is a headless class action?" CBL hears you ask.  The usual scenario is this:  Plaintiff, or plaintiffs, file a class action.  It then turns out the plaintiffs have no standing to 
sue because they aren't class members, either because they never had causes of action against the defendant or, because, as a result of changed circumstances or law, they no longer do.  In such headless class action cases, the question presented is whether the plaintiffs can conduct discovery from the defendant to try to find better class representatives.  There was quite a bit of appellate activity on this issue several years ago, which CBL blogged about here, here and here, among other places.  But in general, the answer to the question often was "yes."

Well, here's a case where the answer isn't just "no."  The answer is "hell no!"  We're talking Starbucks Corporation v. Superior Court (Lords) (April 25, 2011) ___Cal.App.4th___ (Fourth Dist., G043650). 

Facts:  back in the day when Jerry Brown was the youngest governor in the history of the Golden State, and long before he became the oldest, California passed a law that required the "destruction" by "permanent obliteration" of all records of minor marijuana convictions that were more than two years old, and made it illegal for employers to ask about such convictions on their job applications.  Violation brought either actual damages or statutory penalties of $200 per applicant.  The statutes can be found at Health & Safety Code sections 11361.5, subd. (a), 11361.7 and Labor Code section 432.7, subd. (a).

Starbucks allegedly had a "have you ever been convicted" question on its job application that didn't exclude old, minor marijuana convictions.  So three applicants -- who had nary a conviction among them -- had the bright idea of suing Starbucks on behalf of 135,000 job applicants, seeking some $26 million in penalties.  In a previous published decision, Starbucks Corporation v. Superior Court (2008) 168 Cal.App.4th 1436 (Starbucks I), the Court of Appeal reached the rather sensible conclusion that applicants who had no marijuana convictions had no standing and that as such, the plaintiffs could not serve as class representatives. 

So, after Starbucks I, everybody hauled themselves back to the trial court, where the plaintiffs asked to conduct discovery so they could find some better class representatives.  The idea was this:  Starbucks should search through all their job applications to find applicants with marijuana convictions.  They should then send this information to a "neutral administrator" who would write the convicted applicants and ask, "hey, how would you like to disclose your marijuana conviction to the world and be class representatives in our great big fancy case against Starbucks?"  And amazingly, the trial court said "Sure, why not?"

To which the Court of Appeal said "We'll tell you why not:"

Nobody can misunderstand this clear legislative purpose. Records of minor marijuana convictions are to be accorded the highest degree of privacy; they must be treated as if they never existed. Despite these strongly worded prohibitions, the subject discovery order requires Starbucks to rummage through old job applications to locate offenders whose existence otherwise would be hidden from public exposure.
Considering the manifest harm and the minimal benefit (all of which are wrapped up in the same legislation), the discovery order cannot possibly pass the Parris balancing test. As Hooper holds, publicly disclosing marijuana-related offenses covered by the marijuana reform legislation violates the individual offender's right of privacy.

But there's additioanal language CBL likes even more. 

Plaintiffs' attorneys say the class remedy is necessary because the $200 statutory penalty is de minimis. They frankly desire to achieve a “more powerful litigation posture” because “[i]n numbers there is strength.”
We recognize class counsel's tactical motivations to increase their side‟s bargaining leverage, but the argument militates against a class action, rather than in its favor. The excessive penalties sought by class counsel bear little relationship to any true public interest for what, at most, appears to be a technical violation of Labor Code section 432.8 by Starbucks. The strength that may be gained in numbers also may produce the “absurd result of turning the statute into the veritable adding machine that has been decried by our Supreme Court.”

Wow.  Language that will appear forever after in briefs opposing class certification in California.

One side note:  years ago, a friend who is also a marketing consultant told CBL that his blog posts would be more compelling if he included images.  So CBL often does.  But who knew we'd get to include both the Starbucks logo and a marijuana leaf in the same post!

Will Cal Supremes Overturn That Stupid Telephone Booth Case?

Take a seat right there, children, and Uncle CBL will tell you one of his long boring stories about the olden days.

Once upon a time, before we all carried our own telephones around with us and before we all became so important that we had to answer calls in the movie theater, in depositions and in church, there were structures called telephone booths.  These were big glass or plastic-enclosed boxes.  They contained big black clunky land-line telephones that often ate our quarters without allowing us to complete our calls.  And they sometimes contained big plastic telephone book covers (telephone books = directories we used to look up numbers before the Internets came along).  The telephone book covers were normally empty, or had a bunch of torn up useless yellow pages.

Anyway, in 1983, the California Supreme Court, presided over by Chief Justice Rose Bird, wrote a decision that said the telephone company could be held liable for placing a telephone booth in a parking lot, fifteen feet from the street, where a drunk driver ran off the road, crashed into it and severely injured somebody inside.  The case was Bigbee v. Pacific Telephone and Telegraph Company (1983) 34 Cal.3d 49, described by one of Uncle CBL's favorite Superior Court judges as "one of the stupidest decisions ever to come out of the Supreme Court."

Late last year, the Supremes granted a hearing in the case of Cabral v. Ralph's Grocery Company, S178799.  As described by the Court, the issues are these:

(1) Does a big-rig truck driver owe a duty of care to freeway motorists not to park for non-emergency reasons in an "Emergency Parking Only" area at the side of a freeway? (2) Was the driver's act of parking in the "Emergency Parking Only" area not a substantial factor, as a matter of law, in causing plaintiff's injuries in this case?

The Court of Appeal ruled (in a non-citeable decision) that the driver who parked his truck owed no legal duty to the decedent who ran into his truck, so that judgment for the plaintiff was reversed.

The case was argued and submitted last week, so we'll hear something in the next sixty days.  But that isn't the interesting part.  Here's the interesting part:

Last month, the Supremes issued a "grant and hold" -- meaning "we aren't really going to hear this case, but we're going to hear another one kind of like it and the decision in the first case may dispose of this one" -- in Gonzales v. Southern California Gas S188956.  This was an unpublished decision, which in California means it can't be cited, has no precedential value, means nothing to anybody but the immediate parties.  But it's a death case, where plaintiffs received a judgment of $800,000 after their daughter swerved to avoid a coming car, jumped a curb and crashed her car into defendant's gas meter assembly more than eleven feet from the curb.  The Court of Appeal took the judgment away and ordered the trial court to enter judgment for Southern California Gas.

Facts sound familiar?  The main difference between these and Bigbee, the phone booth case, seem to be that the victims here were in the moving object, not the stationary one.  Well, that isn't quite the only difference -- there had been one previous incident involving the Bigbee phone booth. 

In both the recent cases, the Court of Appeal held that the collisions were not foreseeable and there was no legal duty owed to the decedent.  These decisions both seem to be staring Bigbee right in the eye and saying "oh yeah?  Says who?"

We'll let you know what happens.

 

Breaking News On Exploding Snails Front

CBL is presently on vacation with his family in Philadelphia (recently named by the Amereican Tort Reform Association as the Numero Uno Judicial Hellhole in America, but that's  a story for another day).  But that certainly won't keep CBL from reporting the urgent news its  readers need to know now when it comes to the exploding escargot lawsuit.

Because yes, justice has been served.  As reported by crusading reporter Glenn Klein of the Marin Independent Journal,

Judge Roy Chernus dismissed "with prejudice" a negligence lawsuit filed by Chadwick St.-OHarra and Steve Righetti, who claimed their snails ruptured at Seafood Peddler last June, splattering their faces and shirts with hot garlic butter.

The hard-hitting IJ reporter further observed:

"There was absolutely no evidence whatsoever on what caused the escargot to spontaneously splatter grease upon being touched by the plaintiffs," Chernus wrote. "There was no evidence that Seafood Peddler did not exercise reasonable care in the preparation or service of the escargot."

"As unfortunate as it was for plaintiffs being splattered with hot grease, they are not entitled to a judgment against defendant as no breach of duty was established by the evidence presented," the judge concluded.

It's really a shame, as the pioneering plaintiffs apparently sought to invent two heretofor unrecognized causes of action, accusing the restauarnt staff of ""indifference" and "friggin' rudeness" in the immediate aftermath."

Reachd by the IJ, the two unsuccessful plaintiffs borrowed a time-honored approach from Corporate America spokesmen, declining to comment until they had an  opportunity to review the small claims court ruling.

Exploding Snails Warning!

OK, all this stuff about Proposition 65,  Medicare recovery, the Financial Sandards Accounting Board and so on is all well and good.  But it's time for Cal Biz Lit to return to the subject that makes California special:  really, really stupid lawsuits. 

And so, with pleasure, we present the case of Steve Righettiand Chadwick St.-Oharra v. Sea Food Peddler Restaurant, a small claims court action filed in Marin County Superior Court.  Why?  Because at a birthday dinner last June, an escargot at the table unexpectedly exploded, sending butter into a tear duct of one of the victims,  onto the nose of the other and onto the polo shirts of each. 

According to the Marin Independent Journal, Plaintiff and erstwhile birthday boy Righetti, 59 years old, was "humiliated," while to St.-Oharra (also 59) the tragedy caused "a sense of genuine outrage."

Trial is set for December 3.  Hat tip to Overlawyered and Legal Blog Watch.  But kudos in particular to Gary Klien at the Marin IJ.  This kind of hard hitting reporting may be the salvation of American journalism.

Happy Meals -- Too Much Happiness?

CBL takes you now to the Center for Science In The Public Interest, a non-profit advocacy group whose described goal is the admirable one of "Transforming The American Diet."   More roughage, fewer fries, CBL can get behind that. 

But naturally, CSPI has, wait for it, a litigation department.  Well of course it does.  And its Litigation Director is taking on McDonald's Happy Meals.  Why?  Because:

McDonald’s is deliberately marketing directly to unsuspecting little children by offering appealing toys—usually ones related to popular movies or television shows. McDonald’s marketing has the effect of conscripting America’s children into an unpaid drone army of word-of-mouth marketers, causing them to nag their parents to bring them to McDonald’s.

And according to CSPI, marketing to children is inherently unfair and unlawful, because

. . . because young kids are not developmentally advanced enough to understand the persuasive intent of marketing; and (2) unfair to parents, because marketing to children undermines parental authority and interferes with their ability to raise healthy children.

CSPI is threatening McDonald's with suit under a variety of state statutes including, of course, our old friend the Unfair Competition Law, California Business & Professions Code Section 17200.

So, what would a case like that look like under the UCL?  Well, first of all, CSPI would have to prove that McDonald's engaged in a business practice.  Not a problem.  Then they'd have to show the practice was unlawful, unfair or fraudulent.  The "unlawful" prong, prohibits "any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made."  South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861.  But I'm hard pressed to come up with an applicable law that fills the bill.  On the other hand, Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197 strongly suggests that predatory advertising to children may fit either the unfair or fraudulent prongs.

But wait, there's more.  The 2004 voter initiative Proposition 64, sponsored by business to mitigate some well-documented abuses of the UCL, requires that a UCL action may be brought only  "by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition."

Has a six-year-old child who cajoles her parents into taking her to McDonald's to get a happy meal "suffered injury in fact," or has she just been fed?  And how has she lost money or property as a result of the "unfair competition."

Sounds like a very tough darned near impossible burden.

Don't Mess With Chuck

    We would have had an early candidate for 2010's stupidest California lawsuit of the year, but it turns out this one was filed on December 29, 2009 so it's competing in a larger pool.  Thanks to SF Gate's Andrew Ross, we can report that renowned flight pioneer General Charles "Chuck" Yeager is suing Virgin American Airlines.   The basis:  using the following copy in an e-mail ad: "Not unlike Buzz Aldrin or Chuck Yeager, you have the opportunity to be part of a monumental moment in air travel," in touting its in-air Wi-fi service.  As Ross reports, the General alleges that "At no time did Gen. Yeager give his permission to defendants" to use his name - worth "a substantial sum" - which Virgin America used "maliciously, oppressively and fraudulently," so he wants compensatory damages, punitive damages, blah blah blah.

    General!  Get over yourself!  I was going to post a creative commons licensed photo of Yeager on the side here.  But I'm afraid he'd sue me.  So I think I'm going with Buzz Aldrin instead.

    Happy New Year everybody, and have a great weekend.  More substantive posts resume next week.