In Pelayo v. J. J. Lee Management Co., Inc. (May 28, 2009) the Court of Appeal (Second Appellate District, Division Four) offered priceless advice on Code of Civil Procedure section 474: "In this case, we deal with the ―'do's and dont's'of Does." (Slip op., at 2, first sentence.) My compliments to Justice Willhite on that opening. If you are planning on seeking a default judment against a Doe Defendant any time soon, be sure to read this opinion on a narrow matter of procedure.
In Gomez v. Lincare (April 28, 2009), the Court of Appeal (Fourth Appellate District, Division Three) reversed portions of various Trial Court Orders that caused the dismissal of a putative class action by employees that provided respiratory services and medical equipment setup to patients in their homes. The opinion, from the habitually conservative Fourth Appellate District, was originally unpublished. I find the decision particularly satisfying because I worked on that case for several years while employed by Plaintiffs' counsel. I may post more on this decision later.
Once again, an employer tried to avoid the potential for class-wide liability to employees by creating an arbitration agreement that included a class action waiver provision. Once again, that effort met with failure. In Olvera v. El Pollo Loco, Inc. (April 27, 2009), the Court of Appeal (Second Appellate District, Division Three) affirmed the Trial Court (Judge Peter Lichtman) Order denying a motion to compel arbitration.
California is making a second attempt to revise the Civil Discovery Act to address the unique issues surrouding e-discovery. On March 3, 2009, Assembly Bill 5 passed the Assembly Judiciary Committee. Assembly Bill 5 is almost identical to Assembly Bill 926 that was vetoed by Gov. Arnold Schwarzenegger on Sept. 27, 2008. The only new provision in Assembly Bill 5 is the inclusion of an urgency provision that would make the proposed law effective immediately upon signature by the Governor. (See David M. Hickey and Veronica Harris, California Rules to Amend Inaccessible ESI (March 27, 2009) www.law.com.)
On February 13, 2009, the Ninth Circuit granted a request for en banc review of Dukes v. Wal-Mart Stores (9th Cir. 2007) 509 F.3d 1168. On March 11, 2009, the Court issued a Corrected Notice of hearing, listing March 24, 2009, at 2:00 p.m., as the date and time for that en banc hearing in the San Francisco Courthouse of the Ninth Circuit. I don't know what a "normal" lag time is from granting en banc review to setting the hearing, but in appellate court years, that seems like nanoseconds to me. The UCL Practitioner has some detailed coverage of Dukes in this post collection.
If you are serious about understanding class actions, you need to understand the defense perspective on class actions as much as you do the plaintiff viewpoint. Jackson on Consumer Class Actions and Mass Torts is a fairly new blog offering analysis from the defense perspective. The blog is authored by Skadden attorney Russell Jackson, of New York, but the blog offers national coverage.
According to a February 18, 2009 article on the California Chronicle website, Assemblyman Van Tran (R-Costa Mesa) has authored AB 298, which would apparently allow for interlocutory appeals by defendants when a trial court certifies a class action. The Civil Justice Association of California (CJAC) is calling for support of this bill, which sounds strikingly similar to a 2008 bill promoted by CJAC in 2008. That last effort was shelved after strong opposition was organized by the Consumer Attorneys of California (CAOC). If you've wondered what CAOC can do for you as a plaintiff's attorney, there's one nice example. Plaintiff's attorneys can't afford not to join.
The Ninth Circuit issued an Order today in Sullivan, et al. v. Oracle Corporation, withdrawing its prior opinion. The Court said, "We have today issued an order requesting the California Supreme Court to answer three certified questions of California law presented in this case. We hereby withdraw our published opinion in this case, Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008), pending a decision by the California Supreme Court on those questions. Appellants’ Petition for Rehearing and Appellees’ Petition for Rehearing En Banc are dismissed as moot." The Complex Litigator will have more on the certified questions in another post.