Due process prevails.  A common mistake is pleading damages (other than as limited in Family/PI/wrongful death cases) according to proof without providing the defendant with a number of possible damages.  The result is a default but no money to the plaintiff.  The law states a default judgment cannot exceed the type and amount of relief sought in plaintiff’s operative pleading.  (Code Civ. Proc., § 580, subd. (a).)  A similar problem occurs in an accounting action seeking damages related to the valuation of a business without stating what the damages may be.  Now, the courts clearly require a clear statement of what the total amount of the judgment could be. E.g. $1,000,000 or according to proof even on an accounting cause of action.

The courts have now held that if you only allege a certain dollar amount of damages, (e.g. 50% of a million dollar home) then that is what you are limited to.  If you only say 50% of the value of the business without stating what is the approximate value of the business, that may be a problem for the plaintiff on default.  This applies even if you allege in excess of $25,000 or according to proof, you cannot obtain relief greater than $25,000.  The Court of Appeal held: “We hold that actions alleging an accounting claim or otherwise involving the valuation of assets are not excused from limitations on default judgments and, in so doing, add our voice to the growing chorus of cases so holding. We also hold that the amounts of damages awarded and demanded are to be compared on an aggregate basis.”  (Sass v. Cohen (Cal. App. 2nd Dist., Div. 2, Mar. 7, 2019) 32 Cal.App.5th 1032.)  Note, this case is a Marvin v. Marvin (1976) 18 Cal.3d 660, 674-675, 684 type of case.  The Plaintiff in this case was the woman the [married] man imported from London to be his life time lover and business partner.  Just after meeting the woman the defendant asked her to move to California, seven years later he dumped her.

The Sass v. Cohen case does a nice job analyzing the issue.  I am also pleased it mentioned this cite in a footnote: “In such instances, the default is less of an affirmative “tactical” choice not to participate in the lawsuit in the first place (Stein v. York (2010) 181 Cal.App.4th 320, 325) and more of a sanction for making bad “tactical” choices in how to litigate a case in which the defendant initially decided to participate.”

The Court held that a broker must disclose that the seller’s neighbor told him he planned to remodel and his remodeled house would overlook the seller’s pool and interfere with the view.  This case case also found expert broker testimony is not always necessary to find breach of a broker’s duty care.  The Court stated that a layman (the jury) can also decide if a fact requires disclosure.  This will save at least $5,000 in expert witness fees!

A seller’s broker has a duty to disclose known material facts to buyers (Civil Code 2079, Easton v Strassburger (1984) 152 Cal.App.3d 90) AND a duty to disclose the same known material facts to the seller.  The knowledge of the agent (or real estate broker) is attributable to the principal (See, Civil Code sections 2332 and 2338).  This also helps the seller so he knows material facts about his own property (e.g. a neighbor is going to remodel and block his view/privacy).

Seller’s can no longer “close their ears” to neighbor ranting and whining.  If material, it must be disclosed!   Disclosure between sellers and their brokers is critical (see Carleton v Tortosa (1993) 14 Cal.App.4th 745 and Roberts v Lomanto (2003) 112 Ca;.App.4th 1553) just as between buyers and brokers (either their own or those representing the seller)  Seller’s cannot claim “hear no evil, speak no evil” approach to disclosure.   In Ryan this non-disclosure resulted in a $1,000,000 damages judgment!

January 1, 2017, Civil Code § 1938 was expanded to require:

A Certified Access Specialist (CASp) report can reduce the  minimum statutory damages and allow for a stay of the lawsuit pending a mediation session with the court.  Effective January 1, 2017, revised Code Section 1938 also requires:

  • A commercial property lessor shall state on every rental agreement whether or not it was inspected by a Certified Access Specialist (CASp) and if there have been any modifications and a copy of any CASp report given to the prospective tenant.
  • Repairs are now presumed to be the responsibility of the commercial property owner or lessor, unless otherwise mutually agreed upon to shift the repairs to the tenant.
  • The CASp report must be given to the prospective tenant at least 48 hours prior to execution of the rental agreement, or the tenant can rescind the rental agreement for 72 hours after execution of the agreement.
  • The CASP report issues must be disclosed in the lease or rental agreement. The tenant must agree to keep the report confidential.

Full compliance with access disability laws is important both from a legal and social perspective. The CASp program was designed to encourage compliance by providing benefits in litigation. The changes to Section 1938 can, however, create strategic issues for landlords who are in the process of negotiating a commercial lease.

CASp is a good idea because many landlords are sued by private individuals (and lawyers seeking to profit filing numerous such lawsuits) for injunctive relief and the minimum statutory damages of $4,000 per plaintiff, per incident plus attorney’s fees and costs.

The trial court research attorneys s are now happier!  No longer can an amended pleading be filed the morning before the demurrer hearing!  As of 2018, amended Code of Civil Procedure §472 now provides:

(a) A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.  (This rule sunsets January 1, 2021)

The moral fiber of our society continues to degrade.  The following is an attorney ethics issue and as a reminder attorney’s are held to a higher standard.

After a trial on a sexual harassment claim  resulting in an $8,080 jury verdict, and a $7,000 costs award, Plaintiff’s counsel was upset he was not awarded the $133,000 of attorneys fees he requested on the FEHA claim and Labor Code 218.5 and appealed the attorney fee award for abuse of judicial discretion.  The Court of Appeal sustained the trial court’s order and commented that  it did not appreciate that the plaintiff’s attorney wrote that the prior trial judge “was off in a crazy place. Thank God he’s gone now. No offense.”  The Court pointed out that Business and Professions Code section 6068, subdivision (b) provides that it is the duty of an attorney to “maintain the respect due to the courts of justice and
judicial officers”  and disrespectful statements about judges is grounds for bar disciplinary action.  The attorney in his appellate briefs also wrote referring to the female trial judge who would not award the attorney fees he requested as  “disgraceful,” “pseudohermaphroditic misconduct,” or “reverse peristalsis” .  He further referred to the trial judge’s conduct and ruling as “succubustic”.  A succubus is defined as a demon assuming female form which has
sexual intercourse with men in their sleep.  (Martinez v. O’Hara (2/28/19) 4 Civ G054840, Div 3 )  This is a 4th District case.

A homeowner’s liability insurer does not have duty to defend a lawsuit after the insured intentionally pruned trees on another’s property without permission. The intentional act of hiring a contractor to prune is not an “accident” within the meaning of the policy’s coverage provision, even if the insured mistakenly believed the trees were on the boundary of her property. While the insured’s negligent supervision of the contractor, or tree damage resulting from a malfunction of the contractor’s equipment may have constituted an accident, neither the complaint nor evidence extrinsic to the complaint gave rise to liability on these grounds. The court refused to speculate about how unpled facts may affect liability or how the neighbor might amend his complaint.  See Albert v. Mid-Century Ins. Co. (2015) 236 Cal.App.4th 1281

Under California law, the term “accident” in a liability policy refers to the nature of the conduct for which the claimant seeks to impose liability on the insured, not the unintended consequences of the conduct. Delgado v. Interinsurance Exchange of Automobile Club of Southern California, 47 Cal.4th 302, 311 (2009). An accident can follow from an insured’s deliberate act only if “some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.” Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50  (1989)

In California while recreational cannabis is all the rage after January 1, 2018, the California. Medical marijuana laws under California’s “Compassionate Use” Act still provide some benefits.  Including:

  1. Patients with valid medical marijuana ID cards are exempt from paying state sales and use tax applicable to recreational marijuana sales.
  2. Medical marijuana patients can, with a doctor’s recommendation, possess and grow as much marijuana as is consistent with their reasonable needs. Recreational marijuana use has strict quantity limits (possession of not more than one ounce of marijuana or 8 grams of concentrate; cultivation of not more than 6 plants).   However, there is a limit set by Senate Bill 420 (Cal. H&S Code 11362.77) of 8 ounces of dried marijuana and 6 mature or 12 immature plants, unless the physician issued recommendation specifies more than the minimum amounts set forth in SB 420. Leaves and stems of the marijuana plants are not
    counted towards the dry weight limit of 8 ounces.  Only the dried mature processed flowers of female cannabis plants or the plant conversion shall be considered when determining
    allowable quantities of marijuana under this section.
  3. Medical tinctures, capsules and topicals can contain up to 2,000 mg of THC per package, twice as much as similar products for recreational use.
  4. Patients under age 21 can use medical marijuana with a doctor’s recommendation (and parent’s consent if under 18). (You must be 21 and older for Recreational marijuana use.)

Intimate Sexual Contact Alone Does Not Constitute Minimum Contacts. A California woman conceived a child in Connecticut but filed a paternity and child support suit in California against the father living in Connecticut.  The trial court denied his  man moved to quash service of summons based on lack of personal jurisdiction. The Court of Appeal reversed, holding  the man’s knowledge that the mother resided in California and the foreseeability that unprotected sex may lead to birth of a child were insufficient to establish the requisite minimum contacts. The appellate court explained that jurisdiction must be based upon facts showing a “substantial connection” to California following Walden v. Fiore (2014) 571 U.S. 277, 289.  (David L. v. Superior Court (Cal. App. 4th Dist., Div. 1, Nov. 26, 2018) 2018 Cal. App. LEXIS 1067.)  The father seems to regularly travel to California on business trips, and he and the woman had sex on those trips including a prior pregnancy.  However,  the Court dismissed these as insufficient contacts for the paternity issue.  For more salacious details, which may have influenced the Court, look here …  Continue Reading What happens in Vegas, stays in Vegas even, if it caused conception!

In an article by Sanford Gage, who is a very good mediator, 9,000 California settlement decisions were analyzed over 41 years comparing rejected pretrial settlement offers and actual trial results. Sixty-one percent of the time, the plaintiffs obtained an award that was the same or worse than the result the plaintiff would have achieved by accepting the defendant’s pretrial settlement offer. The defendant decision error was only 24 percent, and where there was insurance, the error rate was only 21 percent.

However, defendants are NOT perfect.  While the average cost of the “decision error” by plaintiffs were $43,100,  defendants suffered an average adverse outcome in the amount of $1.14 million! Thus the expected cost of error is more than 20 times greater for the defendant than the plaintiff.

Gage_Making-the-right-decision-at-mediation_Plaintiff-magazine

 

 

In law school you are taught “if you are a defendant remove the case to the Federal Court”.  University of Connecticut law professors Alexandra Lahav and Peter Siegelman studied 30 years of data from the Administrative Office of the U.S. Courts supporting that directive. According to the law profs, the winning rate for plaintiffs in civil litigation in federal courts declined drastically and steadily between 1985 and 1995, from about 70 percent to 30 percent.SSRN-id2993423

P.S.  Federal Court Buildings are also so much nicer (for the most part) and the lawyers dress better!

Lahav, Alexandra D. and Siegelman, Peter, The Curious Incident of the Falling Win Rate (July 7, 2017). Available at SSRN: https://ssrn.com/abstract=2993423 or http://dx.doi.org/10.2139/ssrn.2993423