Other coverage of Coito v. Superior Court

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Coito v. Superior Court (March 4, 2010) is apparently generating a fair bit of interest, based upon the search engine traffic viewing this blog's post about this new opinion.  Other articles that may be of interest include: 

More commentary will likely follow; this decision seems to have hit a nerve.

 

in brief: Coito v. Superior Court may alter the way in which information is gathered in some class actions

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Yesterday, in Coito v. Superior Court (March 4, 2010), the Court of Appeal (Fifth Appellate District) addressed an issue that nominally concerned the collection of evidence in a wrongful death lawsuit naming California as one defendant.  The facts are particularly sad in that the case involved the death of a child, but, then, the facts of all wrongful death cases are sad.  The issue addressed in Coito is whether an attorney's collection of a witness statement after the attorney selected the witness to interview is work product (absolute or qualified).  Coito holds that even attorney-collected statements are not, unless the attorney's independent thoughts and analysis are inextricably intertwined with the statements of the witness.  The majority is exceedingly critical of Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), a case frequently relied upon to shield putative class member declarations from discovery.  Coito puts that argument in jeopardy.  I may be wrong, but I think that this decision may affect the manner in which putative class members are handled during interviews by counsel on both sides.  The case, and especially the long and thoughtful concurring and dissenting opinion, deserves more attention than I can provide today, so I may post a longer comment over the weekend.

in brief: Post-Tobacco II remand case, Pfizer v. Superior Court, is now published

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The shockwaves of Tobacco II continue.  Today, the Court of Appeal (Second Appellate District, Division Three) published its Opinion in Pfizer v. Superior Court (March 2, 2010) after the matter was remanded by the California Supreme Court following the Tobacco II decision.  The Court focused heavily on the length of time and extent of the advertising campaign for Listerine that was at issue in the case.  Less than half a year and sporadic distribution wasn't enough to convince the Court to apply Tobacco II.  So now we have Morgan, et al. v. AT&T Wireless Services, Inc. (September 23, 2009), that found an advertising campaign of around a year to be long enough for a reliance inference, but just under half a year is insufficient.  I suppose those 8-month ad campaigns will be judged on a fact-intensive analysis that looks at whether the ads were continuous and pervasive or sporadic and poorly circulated.

In brief: Ninth Circuit issues new opinion in Rutti v. Lojack Corporation, Inc.

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After granting a panel petition for rehearing, the Ninth Circuit withdrew the Opinion in Rutti v. Lojack Corporation, Inc., 578 F.3d 1084 (9th Cir. 2009), and issued a new opinion, Rutti v. Lojack Corporation, Inc. (9th Cir. March 2, 2010).  The change is significant on the issue of commute time under California law: "[W]e vacate the district court’s grant of summary judgment on Rutti’s claim for compensation of his commute under California law and on his postliminary activity of required daily portable data transmissions, and remand the matter to the district court for further proceedings consistent with this opinion."  Slip op., at 3237.  I may provide a longer post about this change later.  The earlier post on Rutti can be found here.

 

Congratulations to The UCL Practitioner...

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on the occasion of announcing the formation of her own firm.  Kimberly Kralowec, author of The UCL Practitioner, has announced the The Kralowec Law Group.  I wish Kim the best of luck; she was an inspiration to my own blogging efforts.  I hope that four years from now I will be able to say, "I have every intention of continuing to write this blog as I have done for the past six years."

The beauty of SquareSpace...

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is that it allows for quite a bit of tinkering with site layout on the fly.  See, SquareSpace for some examples of how far you can go with their hosting platform.  This is both good and bad.  The good part is self-evident.  The bad part is that you can lose hours and hours of time creating graphics and adjusting layouts without realizing it.  So don't mind my tinkering with the layout; once I got started, I had to keep going until I was marginally satisfied with it.  I was bored, and I may tinker more.  So don't be surprised if the blog looks a little different every day.

Speaking of adjustments, the page-width header and "floating" banner required very precise pixel registration of some graphics.  Interestingly, chrome rendered part of the header 1 pixel off from how both Internet Explorer and Firefox render the same images.  I suspect that there is difference in how the browsers handle a rounding issue.  Regardless, everything now aligns in Chrome, Firefox 3.6, and Internet Explorer 8.  I can't help the rest of you.

The Fourth Appellate District brings us not one, but two opinions in Pellegrino v. Robert Half International, Inc.

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On January 28, 2010, I posted a quick note about an Opinion in Pellegrino v. Robert Half International, Inc. (G039985).  See post here.  But, in the last two days, the Pellegrino matter has generated one additional Opinion and a modification of the earlier Opinion.  The first opinion, Pellegrino v. Robert Half International, Inc. (February 24, 2010) (G040762), was previously unpublished.  The now-published Opinion concerns an award of attorneys' fees:

RHI challenges the trial court's attorney fees award on the grounds the court (1) failed to sufficiently discount a portion of plaintiffs' attorney fees to account for the trial on the unfair competition claims for which no attorney fees were available; (2) should not have applied any multiplier to the lodestar figure in determining the attorney fees award, much less a multiplier as high as 1.75; and (3) improperly awarded an enhancement for “fees on fees.”

We affirm in part and reverse in part. The trial court did not err by reducing the lodestar amount by no more than 15 percent to reflect the parties' litigation of the unfair competition claims, because the legal and factual issues presented in those claims were interrelated with those issues presented by plaintiffs' wage and hour claims (for which attorney fees are available). The record supports the trial court's application of a 1.75 multiplier to the reduced lodestar amount for attorney fees generated up until plaintiffs brought their motion for attorney fees, based on the factors set forth in Ketchum v. Moses (2001) 24 Cal.4th 1122 (Ketchum). The record does not support, however, the application of a 1.75 multiplier to fees incurred in bringing the motion for attorney fees. We therefore reverse the amended judgment to the extent it applies a multiplier to fees incurred in bringing the attorney fees motion and remand to the trial court to recalculate the attorney fees award accordingly. We otherwise affirm the amended judgment.

Slip op., at 2-3.

The modification opinion, Pellegrino v. Robert Half International, Inc. (February 25, 2010) (G039985) concerned RHI's contention that its petition for rehearing should have been granted pursuant to Government Code section 68081 because the Court's decision was based on issues not briefed or proposed by any party.  The Court of Appeal disagreed.  Stridently.

Other commentary:

Storm's California Employment Law

Lexology and Lexology

California Employment Law Report

McAdams v. Monier, Inc. opinion after remand is published; most of original opinion remains intact

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In a prior published opinion, McAdams v. Monier, Inc. (May 30, 2007, C051841), as mod. June 25, 2007, reversed a trial court order denying certification of the proposed CLRA and UCL classes.  The gravamen of the complaint was an alleged failure to disclose that the color composition of defendant's roof tiles would erode away, leaving bare concrete, well before the end of the tiles‟ represented 50-year lifetime.  Then, the Supreme Court granted review and deferred the matter (grant and hold) in light of In re Tobacco II Cases (2009) 46 Cal.4th 298 (Tobacco II), pending on the Supreme Court's docket at the time.  After Tobacco II was decided, the Supreme Court remanded with directions to vacate the decision and reconsider in light of Tobacco II.

Today, the Court of Appeal (Third Appellate District) issued its amended Opinion on Remand in McAdams v. Monier, Inc. (February 24, 2010).  But indicating that much of its Opinion would remain unchanged, the Court said, "In doing so, we reiterate our position involving the CLRA, as Tobacco II concerned only the UCL."  Slip op., at 2.  Going on, the Court summarized the new Opinion as follows:

We agree with case law that an “inference of common reliance” may be applied to a CLRA class that alleges a material misrepresentation consisting of a failure to disclose a particular fact. (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1293 (Massachusetts Mutual).)

As for the UCL, we remand for the trial court to determine if the representative plaintiff meets the Proposition 64 standing requirements, as interpreted in Tobacco II. Otherwise, we find the UCL action suitable for class certification.

Consequently, we reverse the trial court's order denying certification of the proposed CLRA and UCL classes. We do so, however, with one proviso as to defining these classes, which we will explain in this opinion: The members of these classes, prior to purchasing or obtaining their Monier roof tile product, had to have been exposed to a statement along the lines that the roof tile would last 50 years, or would have a permanent color, or would be maintenance-free. (See Tobacco II, supra, 46 Cal.4th at p. 324.)

Slip op., at 2-3.

The opinion is extensive in its analysis of both the CLRA and the UCL.  The CLRA discussion is interesting for many reasons, including approving citation of the standing analysis in Chamberlan v. Ford Motor Co. (N.D.Cal. 2005) 369 F.Supp.2d 1138 (slip op., at 17) and clarification (and, to a degree, limitation) of the extent of the misrepresentation/omission discussion in Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30 (slip op., at 13-16).

The UCL discussion is also interesting on many levels.  For instance, the Court provides a simple reminder about what happened in Tobacco II: "In Tobacco II, the high court reversed an order that had denied class certification in a UCL lawsuit."  Slip op., at 21.  In other words, it reversed every element of the trial court order and Court of Appeal Opinion necessary to support that order.  Ultimately, the Court applied much of its certification analysis discusses in its CLRA discussion to the UCL claim, concluding that certification was appropriate.  The Court then directed the trial court "to determine whether the representative plaintiff can establish UCL standing as defined in Tobacco II and, if not, whether amendment should be permitted to add a new class representative."  Slip op., at 28.

California's budget problems are threatening a constitutional crisis

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A colleague of mine (Linh Hua) and I have been talking out an issue that has troubled me for some time now.  It occurred to me that there must be a constitutional limit of some sort to the underfunding of California's judiciary.  I didn't have any specific case in mind when the concept crossed my mind, and my discussions with other practitioners elicited general agreement without specific supporting authority.  Coincidentally, just as I began to look into this issue, a confirming answer of sorts dropped into my lap.

This evening (for publication on 2/24/2010), Joel Stashenko reports in the New York Law Journal that New York's highest court has held unconstitutional the failure to grant pay raises to judges for the last 11 years.  Joel Stashenko, Denial of N.Y. Judicial Pay Raise Is Ruled Unconstitutional (February 24, 2010) www.law.com.  The high court (the New York Court of Appeals) declared the de facto pay freeze a "crisis" that threatened the separation of powers.  Declining requests for an order mandating an immediate pay raise, the Court said, "By ensuring that any judicial salary increases will be premised on their merits, this holding aims to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature."

While the Court proceeded with caution, it also warned, "It [the Legislature] should keep in mind, however, that whether the Legislature has met its constitutional obligations in that regard is within the province of this Court," citing Marbury v. Madison, 1 Cranch 137 (1803). "We therefore expect appropriate and expeditious legislative consideration."

Writing for the 5-1 majority, Judge Pigott said, "Because the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis, and this constitutes a violation of the Separation of Power doctrine."

In California we don't just have a pay crisis, we have a funding crisis.  Our Courts are closed one Wednesday each month, and I've heard mention that an additional closure day is under consideration by some.  We've lost a complex litigation court in Los Angeles County, a court designed to better manage the burdens imposed by complex, multi-party litigation.  If the pay issue in New York is a constitutional "crisis," what California is experiencing is a constitutional debacle.  The judiciary is not just impaired here, it is hamstrung and handcuffed.  As participants operating within one of the presumably co-equal branches of government, we must be vigilant and speak out when it is clear that a failure by one branch imperils the unfettered operation of another.

I intend to continue speaking about this issue until the futility of it all depresses me into silence.