Harvard Law Unbound blog successfully blacklisted by Harvard

As a blogger myself, I find myself growing increasingly uncomfortable about reports of speech suppression of other bloggers through threats, intimidation, maliciously false process and the like.  In this installment, some dissenting Harvard Law students were the victims of a likely bogus DMCA takedown demand issued by Harvard to WordPress.com.  Bogus is as bogus does.  If you are a Harvard alum, tell them you'll be a little short in the donation area this year.  But this story has a better ending than some; the students didn't stand for it and immediately started a new blog.  Keep fighting the good fight.

Memorial Day

As this post on Popehat eloquently says, we should defend fundamental liberties (such as free speech), not because someone on "our side" was wronged, but because all of us lose when the fundamental liberties of anyone are trampled.

Court of Appeal declines to extend Lebrilla "crash parts" holding to all non-OEM parts installed under insurance policy

Lebrilla v. Farmers Group, Inc., 119 Cal. App. 4th 1070 (2004) reversed a trial court's denial of certification in a suit against an automobile insurer.  The suit alleged that sheet metal parts known as "crash parts" were used to effectuate accident repairs, but the "crash parts" were not manufactured by original equipment manufacturers.  The use of "crash parts" allegedly resulted in substandard repairs that did not restore damaged vehicles to pre-loss condition.  In Ortega v. Topa Insurance Company (May 24, 2012), the Court of Appeal (Second Appellate District, Division Three) examined a similar, but not identical situation, in which non-OEM parts were used to complete repairs to vehicles.  The trial court concluded that common issues could not predominate when evaluation of a breach of contract claim would require a comparison of each installed non-OEM part to the OEM equivalent to determine whether the repair part was inferior to the OEM part.

The Court of Appeal agreed:

We do not read Lebrilla v. Farmers Group, Inc., supra, 119 Cal.App.4th 1070, to suggest, for example, that all non-OEM replacement parts are uniformly inferior. That case addressed crash parts. (Id. at p. 1073 & fn. 1.) In this case, to recover damages each member of the putative Steered Claimant Class (Class B) must identify the non-OEM part, which includes radiators and heat and cooling systems, among others, and prove the particular manufacturer's part is inferior. Thus, unlike Lebrilla, the court would have to determine whether the installed repair part is inferior. As alleged, common issues do not predominate.

Slip op., at 18.  Pretty straightforward analysis.  When the issue was the adequacy of "crash parts," the question of their adequacy could be resolved on a classwide basis.  Here, the the issue of adequacy could vary wildly, depending upon what part was replaced and what manufacturer supplied the replacement part.  This particular case provides an example of the relatively narrow category of class complaints that reveal predominance issues on the face of the complaint itself.

Do NOT cite opinions after review is granted by the California Supreme Court (even if you claim you aren't relying on them). Stop. No. Don't. I see that.

Generally speaking, unpublished cases cannot be cited or relied upon by parties or courts.  California Rules of Court, rule 8.1115 states, in part: "Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action."  Cal. Rules Ct., rule 8.1115(a).  The only exceptions arise when the same parties are involved, or the conduct of a party in one case is relevant in criminal or disciplinary proceedings in another.  When review of a published case is granted by the California Supreme Court, it is depublished: "Unless otherwise ordered under (2), an opinion is no longer considered published if the Supreme Court grants review or the rendering court grants rehearing."  Cal. Rules Ct., rule 8.1105(e).  In The People v. E*Poly Star, Inc. (May 14, 2012), the Court of Appeal (Second Appellate District, Division Seven) let E*Poly and the Trial Court have it for referencing Aryeh v. Canon Business Solutions, Inc. (2010) 185 Cal.App.4th 1159, review granted Oct. 20, 2010 (S184929) (Aryeh).

On the issue of improper citation of an unpublished decision, the Court said:

Supreme Court review in Aryeh was granted on October 20, 2010 (S184929), more than a month prior to the filing of the district attorneys' lawsuit. As of that date any citation to, or reliance upon, that decision was expressly prohibited by rule 8.1115(a) of the California Rules of Court except under the limited circumstances set forth in rule 8.1115(b), none of which appears to be applicable to the case at bar. (See rule 8.1105(e)(1) [“[u]nless otherwise ordered . . ., an opinion is no longer considered published if the Supreme Court grants review”].) Nonetheless, employing something akin to the rhetorical device formally known as paraleipsis or apophasis—that is, mentioning something while disclaiming any intention of mentioning it—E*Poly Star in the trial court and once again in its brief in this court, after noting the Court of Appeal decision in Aryeh is not citable, has discussed the case at length and argues we should defer to its reasoning.  This use of an unpublished, noncitable opinion is a direct violation of rule 8.1115(a) and is wholly unacceptable. (Cf. rule 8.276(a)(4) [authorizing sanctions on the court's own motion for any unreasonable violation of the Rules of Court].)

Slip op., at 12-13 (footnote references omitted).  But the Court wasn't done, stating in a footnote:

E*Poly Star's improper use of Aryeh transcends suggesting we consider the case for its persuasive value. While purporting to recognize the split panel decision by our colleagues in Division Eight is no longer even citable, E*Poly Star contends it is, in fact, binding on us: “It is respectfully submitted that it is not the function of this reviewing court to second-guess itself and re-address a prior published decision, merely and especially because the decision is being reviewed by the State Supreme Court.” That is simply wrong. Even were the case still published, we would not be obligated to adopt its result; there is no “horizontal stare decisis” in the Court of Appeal. (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1489, fn. 10; In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409.) Although, as E*Poly Star states, we frequently follow a prior decision by another division of this court or another district, we will not do so if there is reason to disagree with the conclusion of that case. (People v. Kim (2011) 193 Cal.App.4th 836, 847; Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.)

Slip op., at 12.  "Horizontal stare decisis."  Priceless.  There really ARE some things money can't buy.

Ending its discussion of the use of uncitable authority, the Court also chided the Trial Court:

Similarly, the trial court's reference to the Aryeh opinion and its implicit adoption of its holding with the statement it “agrees with Aryeh's analysis” constitute an impermissible use of a noncitable decision. If the trial court is somehow familiar with an unpublished opinion and finds its analysis persuasive, then it is free to utilize that analysis, just as courts may adopt as their own the analysis contained in the parties' briefs. Any reference to the unpublished case itself, however, violates rule 8.1115(a) even if, as here, accompanied by the qualification, “even though not citable.”

Slip op., at 13.  I saw this happen several times while Brinker was pending.  A number of trial courts observed that Brinker was under review but then said that they agreed with its analysis and were adopting it.  Naughty.

The Court also discusses statute of limitation and accrual issues that may be impacted by Aryeh, but I thought the discussion of uncitable authority was a lot more entertaining than a discussion that could be mooted by Aryeh and might be nullified on a grant and hold pending Aryeh in any event.

(Surprising) California Supreme Court activity for the week of May 14, 2012

The California Supreme Court held its (usually) weekly conference on May 16, 2012.  Highly notable results include:

• Review was granted in Duran v. U.S. Bank National Association (February 6, 2012). The Court of Appeal reversed a trial verdict for a class of managers claiming misclassification and decertified the class.  The case was covered on this blog here.  I would have put the odds on obtaining review at zero when I wrote about Duran in February.  But, after reading Brinker, there were a number of comments suggesting that the Supreme Court might support the forms of sampling evidence used in the Duran trial.  Of course, review may also have been granted to clarify that decertification by the Court of Appeal was inappropriate, with the better approach being to remand for a new trial and reconsideration of the certification question by the trial court.  All that speculation aside, I am shocked, SHOCKED, to find that review was granted here.  Of course, it is also possible that the Petition for Review, which I have not seen, paints a decidedly different picture than the one presented by the Court of Appeal.

Governor Brown proposes taking unconstitutional under-funding of Courts to unconscionable new high (low)

Yesterday, Governor Brown's rosy revenue projections ran smack into the brick wall of reality.  California's budgetary deficit isn't the paltry $9 billion predicted by the Governor.  Heck, we could have found $9 billion in the state's couch cushions.  No problem.

Instead, our deficit, thanks to the inexcusable fiscal malfeasance of years of legislators spending beyond our means, and the inexcusable electorate allowing them to do so, is more like $16 billion.  That's billion with a "B."  This year.  A one-year deficit against a $91 billion budget.

The solution proposed by the Governor is to (1) tax us more than we already are, and (2) cut stuff.  What gets cut?  As far as our constitutionally created branch of government knows as the judiciary is concerned, the cut proposed is another $544 million from the courts budget, which has already lost $650 million over the last three years.

One retired judge recently told me that the Los Angeles Superior Court is just rearranging deck chairs on the Titanic.  But, for the most part, the leaders of the Courts, while complaining loudly about the cuts, are too political to take on the Legislature and Governor over this constutional crisis.

Where is the leadership? When are the advocates of Court access and the constitutional scholars and the judges crushed under this unchecked robbery going to stand up and demand that the third branch of government receive the first distribution of funds, regardless of what revenue is available.  The Courts are entitled to protected funds sufficient to discharge their constitutional role in California.

See, for example, coverage in the Los Angeles Times.

In an entertaining twist, Kirby, et al. v. Immoos Fire Protection, Inc. holds that nobody gets fees under 226.7

As a general rule, the law lacks a sense of humor.  Because of that substantial absence of levity, it is up to us to find amusement in unexpected places.  Sometimes a court authors a witty opinion that is entertaining as a form of sharp commentary.  Other times, the humor is relegated to commentary on current legal news.  But that doesn't exhaust our options.  Today, in Kirby, et al. v. Immoos Fire Protection, Inc. (April 20, 2012), the California Supreme Court demonstrated that humor exists in the law when a case outcome is contrary to all expectations.  When asked to decide whether the plaintiff alone, or any prevailling party, is entitled to attorney's fees for alleged violations of Labor Code § 226.7, the Court chose Answer C, none of the above.

The plaintiffs brought a wage & hour class action.  Certification was denied.  The plaintiffs dismissed the case with prejudice.  Defendant Immoos moved for fees as the prevailing party on claims for meal and rest break violations.  Plaintiffs argued that, because section 226.7 claims require payment of wages for the violation of the statute in a manner that is tantamount to a minimum wage obligation, the one-way fee-shifting statute applicable to section 1194 applies.  Defendant Immoos argued that the action was for the "non-payment of wages," thereby brining the action within the two-way fee provision of section 218.5.  Breaking its task down, the Supreme Court said:

In resolving the case before us, we must initially ask whether a section 226.7 claim is a claim for which attorney's fees could be awarded to a prevailing employee under section 1194. If so, then IFP may not be awarded fees under section 218.5 even though it prevailed on the rest period claim in this case. If not, then we must separately examine whether section 218.5 authorizes a fee award to IFP on plaintiffs' section 226.7 claim.

Slip op., at 6.  The Court immediately rejected the argument that any statutory or administrative compensation requirement is a "legal minimum wage."  Instead, the Court supplied a common sense reading to the meaning of section 1194, finding that it created a minimum hourly rate of pay, and not a one-way fee shifting provision for every form of statutory or administrative compensation.  Based on this construction, the Court concluded that section 226.7 claim is not a claim for which attorney's fees could be awarded to a prevailing employee under section 1194.

Nonpayment of wages is not the gravamen of a section 226.7 violation. Instead, subdivision (a) of section 226.7 defines a legal violation solely by reference to an employer's obligation to provide meal and rest breaks. (See § 226.7, subd. (a) [“No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commision.”].) The “additional hour of pay” provided for in subdivision (b) is the legal remedy for a violation of subdivision (a), but whether or not it has been paid is irrelevant to whether section 226.7 was violated. In other words, section 226.7 does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay. An employer's failure to provide an additional hour of pay does not form part of a section 226.7 violation, and an employer's provision of an additional hour of pay does not excuse a section 226.7 violation. The failure to provide required meal and rest breaks is what triggers a violation of section 226.7. Accordingly, a section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for non-provision of meal or rest breaks.

Slip op., at 13-14.  Thus, since section 226.7 is not an action for nonpayment of wages, section 218.5 does not apply either.  The Court followed with this observation:

It is no answer to say that a section 226.7 claim is properly characterized as an action brought for (i.e., on account of) nonpayment of wages because if a defendant employer had provided the additional hour of pay remedy, presumably the plaintiff would not have brought the action at all. Such a characterization is a departure from the way we conventionally distinguish between the legal basis for a lawsuit and the remedy sought. Consider a typical lawsuit that alleges unlawful injury and seeks compensatory damages. We may say that the suit is an action brought for violation of some legal duty. But we do not say that the suit is an action brought for nonpayment of damages — even though the action would not have been brought had the defendant paid the damages for the plaintiff's injury.

Slip op., at 14.  So that's that.  No fees for prevailing party under section 226.7 for either side.

Meanwhile, note again this little morsel:  "In other words, section 226.7 does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay."  Oops.  Even if the employer pays the money, it isn't excused from the violation.  But, since attorney's fees aren't available directly, the chances of an action for injunctive relief are diminished.  That leaves 1021.5 or other fee-shifting bases, which are far from guaranteed.

Decision forthcoming in Kirby, et al. v. Immoos Fire Protection, Inc.

On Monday, April 30, 2012, the California Supreme Court will issue its decision in Kirby, et al. v. Immoos Fire Protection, Inc.  The Court of Appeal decision was discussed on this blog here.  The great question, of course, is whether the relatively employee-protective decision in Brinker will be tempered by prevailing party fee concerns.  The California Supreme Court describes the issues under review as follows:

The court limited review to the following issues: (1) Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code, § 226.7) or may attorney’s fees be awarded under Labor Code section 218.5? (2) Is our analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime?

Certiorari denied in Ticketmaster, et al. v. Stearns, et al.

On the consumer litigation front, today the United States Supreme Court denied certiorari in Ticketmaster, et al. v. Stearns, et al. (Sup. Ct. Case No. 11-983).  Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011) examined a number of consumer law concepts in the class context.  For example, the Ninth Circuit shot down the federal court standing challenge attempted in UCL actions post-Tobacco II.  And, on the issue of reliance in CLRA claims, the Court said:

A CLRA claim warrants an analysis different from a UCL claim because the CLRA requires each class member to have an actual injury caused by the unlawful practice. Steroid Hormone Prod. Cases, 181 Cal.App.4th 145, 155-56, 104 Cal. Rptr.3d 329, 337 (2010). But "[c]ausation, on a classwide basis, may be established by materiality. If the trial court finds that material misrepresentations have been made to the entire class, an inference of reliance arises as to the class." Vioxx, 180 Cal.App.4th at 129, 103 Cal.Rptr.3d at 95; see also Vasquez v. Superior Court, 4 Cal.3d 800, 814, 484 P.2d 964, 973, 94 Cal.Rptr. 796, 805 (1971); Steroid, 181 Cal. App.4th at 156-57, 104 Cal.Rptr.3d at 338. This rule applies to cases regarding omissions or "failures to disclose" as well. See McAdams v. Monier, Inc., 182 Cal.App.4th 174, 184, 105 Cal.Rptr.3d 704, 711 (2010) (holding that because of defendant's failure to disclose information "which would have been material to any reasonable person who purchased" the product, a presumption of reliance was justified); Mass. Mut. Life Ins. Co. v. Superior Court, 97 Cal. App. 4th 1282, 1293, 119 Cal.Rptr.2d 190, 198 (2002) ("[H]ere the record permits an inference of common reliance. Plaintiffs contend Mass Mutual failed to disclose its own concerns about the premiums it was paying and that those concerns would have been material to any reasonable person contemplating the purchase...." If proved, that would "be sufficient to give rise to the inference of common reliance on representations which were materially deficient.").

Stearns, at 1022.