Law-less Friday: Irony and Hipocrisy are no bar to standing

We all need a bit of levity on Friday, so take a moment and enjoy one paragraph from City of Palm Springs v. Luna Crest (March 17, 2016), a recent opinion from the Fourth Appellate District, Division Two, that captures the humor sometimes hidden in the law.

Luna Crest, Inc. opened a medical marijuana dispensary in the City of Palm Springs without obtaining a permit to test whether the Palm Springs ordinance requiring such a business to have a permit was invalid.  Luna Crest sought an injunction against further enforcement, claiming that federal drug laws preempt the City’s ordinance.  The Court observed:

To be sure, as the City points out, there is a certain irony, if not hypocrisy, in Luna’s invocation of federal drug laws as a basis for invalidating the City’s permitting requirements, given Luna’s intention to operate a medical marijuana dispensary in violation of those very federal drug laws.  The City cites no authority, however, for the proposition that irony or hypocrisy alone may vitiate standing, and we are aware of none.  We turn, therefore, to the merits of Luna’s claims.

Slip op., at 5.  Never let someone challenge your standing just because of the irony or hypocrisy of your position.  Never.

Have a great weekend, and, as they say, smoke 'em if you got 'em.


in brief: Fees denied to prevailing defendant in Swearingen v. Haas Automation, Inc.

United States District Court Judge Barry Ted Moskowitz (Southern District of California) denied Defendants' motion for an award of attorney's fees after the Defendants obtained a dismissal of plaintiff's Second Amended Complaint.  Swearingen v. Haas Automation, Inc., 2010 WL 1495204 (S.D.Cal. Apr 14, 2010).  The Court held that changes to Penal Code section 502 removed a bilateral fee provision and a claim sounding in tort was outside the attorney fee provision of a lease agreement between the parties.

in brief: Ninth Circuit joins others in holding that denial of certification does not destroy CAFA jurisdiction

In United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, et al. v. Shell Oil Company (9th Cir. Apr. 21, 2010) (say that three times fast), a putative class action alleging various wage & hour violations was removed to federal district court pursuant to 28 U.S.C. § 1332(d)(2) (CAFA).  Certification was eventually denied.  The district court concluded that it lacked jurisdiction and remanded the matter to state court.  On appeal, the Ninth Circuit joined the Seventh and Eleventh Circuits in holding that denial of class certification does not divest the federal district court of jurisdiction.  The Court recognized the general principles that jurisdiction is evaluated at the time it is invoked, and subsequent developments do not destroy jurisdiction if it was properly invoked originally.  All else equal, this decision should reduce the overall degree of hapiness experienced by district court judges.  Now they can't put an unsuccessful, removed class action out of its misery with a remand bullet to the head.  Thus, federal district courts will have the pleasure of overseeing more individual, state law-based actions.

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

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.


in brief: service of a complaint on a consumer is a "communication" under the FDCPA

While I can't say that this will ultimately prove to be a class issue, the Fair Debt Collection Practices Act (“FDCPA”) is receiving increased attention in recent years, particularly as an increase in the number of consumers in economic distress increases their interactions with debt collectors.  It is with this in mind that I pass on one sentence from a case involving the FDCPA.  In Donohue v. Quick Collect, Inc., (9th Cir. January 14, 2009), the Ninth Circuit held:  "We . . . conclude that a complaint served directly on a consumer to facilitate debt-collection efforts is a communication subject to the requirements of §§ 1692e and 1692f."  Slip op., at 1006.


in brief: Majority of California Supreme Court sets 1-1 punitive damage to compensatory ratio on facts in Roby v. McKesson Corporation

In Roby v. McKesson Corporation, the second opinion issued today by the California Supreme Court, the Court held, among other things, that on the facts and circumstances presented, a 1-1 punitive damage to compensatory damage ratio was the constitutional ceiling.  Justice Werdegar authored a dissenting opinion (to which Justice Moreno concurred) on the Court's punitive damage holding, concluding that the facts and circumstances of the case supported a 2-1 punitive damage to compensatory damage ratio.  The case concerns allegations of wrongful discharge, discrimination and harassment.

in brief: Evans v. Lasco Bathware, Inc. has a little something for everyone

While it deserves a more substantial discussion, Evans v. Lasco Bathware, Inc. (November 6, 2009) requires at least a brief mention.  In Evans, the Court of Appeal (Fourth Appellate District, Division One) reviewed an Order denying class certification.  The Court of Appeal affirmed.  The interesting elements of the opinion include (1) a discussion of when, in the Evans Court's view, damages become an issue of sufficient complexity to justify a denial of certification and (2) a discussion of "liability only" certification.  In this case, the complications arising when a defective shower pan caused varying degrees of damages in different homes convinced the Court to reject the "liability only" certification option in this case.  Nevertheless, that aspect of class actions is so infrequently discussed in California that it is of note that it was even considered here.

in brief: More commentary about Nazir v. United Airlines, Inc.

Whether it is the intensity of the Opinion, the facts discussed in the Opinion, or a combination of the two, Nazir v. United Airlines, Inc. (October 9, 2009) is generating a fair bit of commentary.  Workplace Prof Blog encourages everyone to read the entire opinion.  Storm's California Employment Law agrees, saying, "You have to read this opinion."  I agree.  You should read the opinion.

in brief: Morgan, et al. v. AT&T Wireless Services, Inc. analyzes the sufficiency of allegations under the UCL, CLRA, FAL and common law fraud in a consumer class action

While a more thorough analysis will follow, reader may be interested in taking a look at Morgan, et al. v. AT& T Wireless Services, Inc. (September 23, 2009).  In Morgan, the Court of Appeal (Second Appellate District, Division Four) is called upon to address the sufficiency of allegations in a consumer class action alleging causes of action under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.), the False Advertising Law (FAL) (Bus. & Prof. Code, § 17500 et seq.), the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.), and for fraud and declaratory relief.  You can wade through the decision yourself, or wait for the Executive Summary in the next day or so.

in brief: Johnson v. Arvin-Edison Water Storage Dist. holds that governmental entities are exempt from wage & hour laws absent express statutory language to contrary

In Johnson v. Arvin-Edison Water Storage Dist. (June 3, 2009) the Court of Appeal (Fifth Appellate District) held that governmental entities are not subject to a wide array of wage & hour laws absent express legislation to the contrary.  The water district defendant was determined to be a municipal entity, thus entitled to that broad grant of immunity.