Two California Supreme Court cases relevant to this blog will be online shortly

Later this morning the California Supreme Court will post opinions in Bruns (Dana) v. E-Commerce Exchange, Inc., et al. and In re Baycol Cases I and II. Bruns raises the following issues: Does a stay of discovery constitute a stay of the action within the meaning of Code of Civil Procedure section 583.340, subdivision (c), such that the period during which discovery was stayed should be excluded in determining the time within which the action had to be brought to trial? Baycol raises the following issue: Did the “death knell doctrine” require plaintiff to immediately appeal the sustaining of a demurer as to class claims when the ruling resolved both individual and class claims, or did the one final judgment rule apply and require a single appeal from the subsequent entry of final judgment on all claims?

The links above should work shortly after 10:00 a.m. today.Save & Close

Ninth Circuit agrees with other Courts and applies Wyeth v. Levine in holding that failure-to-warn claims are not pre-empted for generic drug manufacturers.

I don't spend too much time on products liability issues, but Wyeth v. Levine was a major ruling in the area of federal preemption, and its reach is still being tested.  In Gaeta v. Perrigo Pharmaceuticals Company (9th Cir. Jan. 24, 2011), the Ninth Circuit agreed with two Courts of Appeals and all of the district courts to consider the issue of whether federal law preempts state law failure-to-warn claims against generic manufacturers.

In Wyeth v. Levine, 129 S. Ct. 1187 (2009), the Supreme Court determined that state law failure-to-warn claims against brand name manufacturers were not preempted by federal law.  However, it was unclear whether the holdilng applied to generic manufacturers.  Applying the Levine analysis, two other Courts of Appeals, and all of the district courts to consider the issue, held that federal law does not preempt state law failure-to-warn claims against generic manufacturers, provided there is no “clear evidence” that the FDA would not have approved the proposed stronger warning. We agree and hold that the district court erred in applying federal preemption. The Ninth Circuit agreed, reversing and remanding.

California Proposition 8 elicits constitution-based, discovery rights opinion from Ninth Circuit

For those following the complicated twists and turns of litigation over California Ballot Proposition 8, which amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California, the litigation about that measure continues.  Today, the Ninth Circuit, in Perry, et al. v. Arnold Schwarzenegger (9th Cir. January 4, 2009), issued a writ of mandamus directing the trial court to enter a protective order barring access to internal campaign communications of proponents of the Proposition.  I'm no constitutional law expert, but high-stakes litigation like this tends to create its own complexity, so I simply note the opinion for the constitutional law scholars, fans and practitioners.  I can say that it's not every day that you see discovery limited because it would intrude on the the First Amendment right of freedom to associate.  The one-page appendix to the opinion is also available.


Courtroom View Network is providing live coverage of eBay v. Craigslist

The Delaware Court of Chancery, in Georgetown, Delaware, is playing host to a wild one.  Courtroom View Network is now providing live coverage of eBay v. Craigslist, otherwise known as eBay Domestic Holdings, Inc. v. Craig Newmark.  California online mainstays eBay and Craiglist are involved in a bi-coastal battle over director voting rights and the alleged theft of confidential information.  In a nutshell, eBay claims that Craiglist's directors unfairly diluted eBay's 28.4 percent minority shareholder stake in Craigslist and eliminated eBay's right to appoint a director.  In another lawsuit filed in San Francisco, Craigslist claimed that eBay used its shareholder position to obtain confidential competitive information to gain an unfair commercial advantage in developing eBay's own competing online classified ad business,

Courtroom View Network is providing free access to a sample clip of cross-examination of Meg Whitman, the former CEO of eBay.  Other media outlets have more coverage of the opening day of trial.  See, e.g., Shannon P. Duffy, Craigslist, eBay Face Off in Closely Watched Trial (December 8, 2009)

True, it's not a class action, but this is complex litigation at its best.  Two cyber-goliaths trying to strangle each other on opposite sides of the country is too good to pass up.  I just don't know who to root for.

It is possible to go too far in litigation, and Nazir v. United Airlines, Inc. provides frightening examples of that excess

Sometimes litigation is complex because the lawyers make it that way.   So often those litigation excesses are tolerated by Courts and achieve their goals, which just encourages the bad behavior.  Then it spreads like mold, getting copied.  However, just as my cynicism reaches that tipping point, a Court of Appeal authors a new opinion to right the ship.  For example, in Clement v. Alegre (September 23, 2009), the Court of Appeal (First Appellate District, Division Two) weighed in on discovery conduct.  See September 24, 2009 blog post.  And I am pleased to report that the First Appellate District, Division Two, is back business setting litigators back on the straight and narrow with their latest opinion, Nazir v. United Airlines, Inc. (October 9, 2009).

Since complex litigation is in the eye of the beholder, I say that monstrous motions for summary adjudication are "complex."  By that standard, Nazir is topical, and I proceed.  Nazir is about the summary judgment procedure.  Nazir begins by describing the terrain into which the opinion will descend:

Our Supreme Court has said that the purpose of the 1992 and 1993 amendments to the California summary judgment statute was “to liberalize the granting of motions for summary judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) It is no longer called a “disfavored remedy.” It has been described as having a salutary effect, ridding the system, on an expeditious and efficient basis, of cases lacking any merit. And that it has, as shown by the many cases affirming a summary judgment.

At the same time, the summary judgment procedure has become the target of criticism on a number of fronts. Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well-funded litigants. More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer‟s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage. Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court.

Slip op., at 1.  In a suit for harassment, discrimination and retaliation, Defendants filed motions for summary judgment or summary adjudication, and the court described the ensuing papers as follows:

Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants' separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants' own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants' moving papers were 1056 pages.

Plaintiff's opposition was almost three times as long, including an 1894-page separate statement, papers the trial court would later disparage as "mostly verbiage," a description with which, as will be seen, we disagree. Curiously, no such criticism was leveled at defendants' papers, not even those in reply, papers that defy description.

Defendants' reply included, and properly, their response to plaintiff's additional disputed facts. Defendants' reply also included, not so properly, a 297-page "Reply Separate Statement" and 153 pages of "Exhibits and Evidence in Support of Defendants' Reply." And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff's declaration, many of which objections were frivolous. In all, defendants filed 1150 pages of reply.

Slip op., at 2.  The Court then summarized the task before it:

This, then, is what is before us for de novo review: an order granting summary judgment that purports to sustain without explanation 763 out of 764 objections to evidence, in a record the likes of which we have never seen—not here, not in the combined 11 years of law and motion experience of the members of this panel.

Slip op., at 3.  But wait! This is only the third page of an opinion spanning over 50 pages.  Consider these comments about the record on appeal:

On August 30, 2007, defendants filed a "Motion for Summary Judgment or, in the Alternative, Summary Adjudication," with moving papers totaling 1056 pages. Plaintiff filed his lengthy opposition which, as quoted above, the trial court described as "mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact."

Seemingly emboldened by this description, defendants' brief here begins this way: "As in Macbeth's soliloquy, Appellant's Opening Brief (AOB), like his summary judgment opposition below, is full of 'sound and fury, [but ultimately] signifying nothing.' Despite filing an 1894 page(!) opposition separate statement, which the trial court found . . . in a manner deliberately calculated to obfuscate whether any 'purportedly disputed facts were actually controverted by admissible evidence,' the trial court properly granted summary judgment in this case. As with Nazir's opposition statement, his AOB is 'mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.'"

Passing over whether such disparagement is effective advocacy, the "girth" of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.

Slip op., at 4.  The Court then spends considerable time summarizing the defects in the Separate Statement:

The deficiencies in the motion pale in comparison to those in the separate statement. "Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.) The separate statement "provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts." (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) That hardly describes defendants' separate statement here.

The separate statement is, as noted, 196 pages. The exact number of supposedly material facts is impossible to know without actually counting them, as many of the facts are often repeated with the same numbers. But whatever the number, many of the facts are not material, as defendants concede, their separate statement beginning with this quizzical footnote: "The facts are deemed undisputed for purposes of this motion only and do not constitute any admission. For purposes of this motion only, Plaintiff's statements are accepted as true. Not all facts listed herein are necessarily material, as certain facts are asserted for background, foundational, information, or other purposes. Also, by including the facts set forth herein, Defendants are not waiving their right to challenge the admissibility of such facts in connection with this motion or for other purposes in this case."

We offer two observations about this footnote. The first is that it ignores the advice from the leading practice treatise: "PRACTICE POINTER: [¶] . . . [¶] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!" (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) § 10:95.1, p. 10-35.) The second is that there seems to be some disconnect between defendants' concession that "Plaintiff's statements are accepted as true" and defendants' 325 objections to plaintiff's testimony. In short, defendants' separate statement was particularly inappropriate.

The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this. The reply also included 153 pages of "Exhibits and Evidence in Support of Reply." No such evidence is generally allowed. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) And, of course, there were the objections, 764 in all, which we discuss below. Suffice to say that there is plenty of blame for the "girth" the trial court criticized, most of which, we conclude, lies at the feet of defendants.

But neither the inappropriateness of defendants' papers nor their excessive volume is the worst aspect of those papers. No, that is the misleading picture those papers presented. An article coauthored by an experienced Superior Court judge has "intended to point out, in ascending order of seriousness, certain fatal errors and other problems [the court has] encountered" in connection with summary judgment motions, at the very top of which are motions "that attempt to 'hide' triable issues of material fact."  (Brenner & March, Use and Abuse of MSJs: A View from the Bench (2007) 49 Orange County Law 34, 37.) The article admonishes that a motion "should never cite evidence out of context in an effort to conceal a clearly triable issue of material fact," going on to cite two recent examples in that judge's court, one in a sexual harassment case, the other in one for wrongful termination. (Id. at p. 37.) Here, in vivid detail, is a third.

Slip op., at 5-7.  The Court was then compelled to spend considerable time discussing the objections to plaintiff's evidence, as the state of admitted evidence governed the Court's de novo review of the Motions themselves.   Without quoting the many pages of discussion about the frivolous nature of the many objections asserted by defendants, the Court, at one point in the opinion writes, "Can this be serious? Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?"  Slip op., at 11.  The Court then offered this advice in a footnote:

We sometimes "hear" that a common practice in cases staffed by multiple levels of lawyers is to assign the most junior lawyer to "do the objections," which was apparently done here. Perhaps a wiser practice would be have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.

Slip op. at 11, n. 6.

The balance of the Opinion, once it moves beyond its focus on the form of the filings before the Court, is an excellent example of detailed application of facts to the complex schemes of law governing harassment, continuing violations, discrimination, exhaustion of administrative remedies and the like.  If you don't practice in the area of employment law, the first third of the opinion is still highly relevant, and the balance is a good example of what to consider when bringing or opposing a motion for summary judgment/adjudication.

The Court ends its opinion by reminding trial courts that they possess inherent power to correct abusive summary judgment filings:

The deficiencies in summary judgment papers can appear in a variety of places, and the approaches taken by the courts to address the deficiencies can vary as well, limited only by the inspiration or creativity of the particular law and motion judge—and, of course, due process. There is no universal solution, no panacea, and we do not even attempt to offer suggestions. We write here only to confirm the existence of the inherent power, to remind trial courts of it, and to encourage them to use it when appropriate.

Slip op., at 51.  I think this panel is too modest.  They seem more than up to the challenge of suggesting methods to curtail incidents like the one chronicled in its Opinion.  At any rate, they do yeoman's work and deserve a raise (not that this mismanaged, financially destitute state could provide one).

The UCL Practitioner has already identified some press coverage of this decision in a post from earlier today.

Hyperlinks can add enforceable terms to online contracts, according to Illinois District Court in PDC Laboratories Inc. v. Hach Co.

While technology makes our lives easier, it has a way of making legal issues more complicated.  PDC Laboratories Inc. v. Hach Co., No. 09-1110 (C.D. Ill., Aug. 25, 2009) is a fine example of how technological advances require the novel application of old legal concepts to new circumstances.  PDC Laboratories concerns "hyperwrap" contracts, or contracts that include additional pages of terms accessible via a hyperlink.  In PDC Laboratories, the court held that a limitation of remedies clause that was available via a hyperlink was an enforceable term in the parties' contract for the sale of goods.  PDC Laboratories followed a similar holding from an Illinois state court case, Hubbert v. Dell Corp., 359 Ill. App.3d (Ill. Ct. App. 2005).  PDC Laboratories described Hubbert as "the leading authority in 'hyperwrap' cases, such as the case now before the Court."  Order, at 5 n. 1.

Via E-Commerce and Tech Law Blog.

Momentary hysteria follows from i4i's patent suit victory over Microsoft

As one of the legal professions most proficient masters of Microsoft Word (so I say, and I have references), I was surprised to learn that some Canadian company I've never heard of convinced a District Court Judge in the Eastern District of Texas to enjoin Microsoft from selling versions of Microsoft Word in 60 days.  Ashby Jones, Microsoft Word-less? (August 12, 2009)  The patent at issue concerns Microsoft's use of custom XML in newer versions of Microsoft Word.  What's that you ask?  The simple version requires understanding what is meant by XML.  XML refers to Extensible Markup Language.  This language allows a structured document to be marked with tags that describe the type of content in various sections.  This markup allows data to be pulled from the document, along with the tags that describe the type of data.  If you know the purpose of each part of a document, different programs can make use of the document in different ways that are all consistent with the markup.

Essentially, Microsoft took the open XML standard and added some custom tags to the base standard, creating its own flavor of XML that is unique to Microsoft Word.  i4i alleges that is holds a patent on the use of custom XML.  The end result of this debacle will be reversal at the appellate level, a settlement between the companies, or a patch that simply switches off the use of custom XML in Word versions.  Such a patch would have no effect on documents saved in the older DOC format.

In Doe v. MySpace Incorporated the Court of Appeal holds that the Communications Decency Act immunizes MySpace and similar web sites

When you see that "Doe" in the case name, you already know that an opinion is likely to tread where you'd rather it didn't.  In Doe v. MySpace Incorporated (June 30, 2009), the Court of Appeal (Second Appellate District, Division Eight) has the thankless task of deciding whether Myspace Incorporated is liable for sexual assaults by men that the minors met through  The Court framed the issue in simple terms: "Can an internet Web server such as MySpace Incorporated, be held liable when a minor is sexually assaulted by an adult she met on its Web site?"  Slip op., at 2.  The Court determined that the answer hinged upon application of section 230 of the Communications Decency Act, which provides limited immunity for certain content publishers.

The Court described the test for immunity under section 230:

Immunity under section 230 requires proof of three elements: (1) MySpace is an interactive computer services provider, (2) MySpace is not an information content provider with respect to the disputed activity, and (3) appellants seek to hold MySpace liable for information originating with a third party user of its service. (Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran); Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 804-805.)

Slip op., at 7.  After examing federal authority that consistently found immunity existed in similar circumstances, the Court nevertheless discharged its obligation to examine the issue under California law:

While the Fifth Circuit‟s holding in Doe v. Myspace, Inc. is certainly persuasive, especially as it relates to an interpretation of a federal statute, its holding is not binding upon this court. Neither are the other federal precedents cited above. (Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 437; Wagner v. Apex Marine Ship Management Corp. (2000) 83 Cal.App.4th 1444, 1451.) However, where the decisions of the federal courts on a federal question are " ' "both numerous and consistent," we should hesitate to reject their authority [citation].' " (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58 (Barrett).) Nevertheless, we must look to our own state‟s treatment of section 230 immunity to confirm the above analysis.

Slip op., at 10-11.  The Court's survey of California decisions didn't reveal any basis for departing from the federal cases construing section 230, and the Court concluded that MySpace was immunized by section 230.  Go hug your child.  Teach them what not to do online, even if you don't understand it all that well.  And pay attention to what they are doing on the internet anyhow.