Declarations and Exclusions

Dodgy Draftsmanship -- Court Refuses to Enforce Arbitration Clause Despite Legislature's Ambiguous Phrasing

Saving the Legislature from its own sloppy phrasing, the Second District Court of Appeal concludes that Business & Professions Code §7191 absolutely prohibits a residential contractor from enforcing an arbitration clause when that clause is not presented in precisely the form required by that statute.  In passing, the Court also affirms that attorneys are entitled to the same protections as other consumers, despite their presumed superior knowledge and negotiating skills.

Business and Professions Code §7191 was enacted in 1994 to ensure that consumers who accepted arbitration clauses in contracts for residential construction would do so knowingly, fully informed that they are giving up their rights to jury trial and other potential benefits of litigation in court.  The statute imposes formal requirements on such clauses, including requirements that the provision be specifically entitled "ARBITRATION OF DISPUTES," that the effect of the clause be stated in prescribed language, ALL CAPITALIZED, and that the clause be initialed by the parties.  Subdivision (c) of the statute sets forth the effect if the contractor (referred to as the "licensee") utilizes an arbitration clause that does not comply with the statute's requirements:

(c)  A provision for arbitration of a dispute between a principal in a contract for work on a residential property with four or fewer units that does not comply with this section may not be enforceable against any person other than the licensee.

(Italics added.)

Paul Woolls entered into a contract for work on his home with a licensed contractor, Thomas Turner and T&T Construction.  The contract contained an arbitration clause, but the clause was not individually initialed and did not include the title, use the typefaces, or incorporate the prominent disclosures mandated by §7191.  Disputes arose concerning the work and Woolls filed suit.  Turner and T&T commenced an arbitration proceeding.  Despite written objections by Woolls and despite the pendency of a motion to stay the arbitration, the arbitrator held a hearing and issued a decision in favor of the contractor.  Woolls sought an order from the trial court vacating the arbitration award, but that court declined.  Woolls then petitioned the Court of Appeal to vacate the award and the Court did so, relying on §7191.

In the Court of Appeal, Turner and T&T argued that the Legislature had used the phrase "may not" in a "permissive" sense, not in a prohibitory one.  That is, they argued that the trial court had discretion to enforce the clause against Woolls, or not, and that the court had not abused its discretion in choosing to affirm the arbitrator's award.  After all, they argued, despite his objections Woolls had participated in the arbitration and had had the opportunity to present his side of case to the arbitrator.  The Court of Appeal disagreed with the contractor's position, concluding that the Legislature had intended to enact an absolute prohibition on the enforcement of non-compliant clauses against anyone other than the contractor.

Here, the disclosure requirements contained in section 7191, subdivisions (a) and (b), are mandatory.  Section 7191 repeatedly provides those provisions “shall” appear in the contract. [Citation.]  Therefore, to construe section 7191 as optional would render it ineffective, a construction we must avoid. [Citation.]

Consequently, we construe the language in section 7191 that a noncompliant arbitration provision 'may not be enforceable', to mean that a failure to comply with section 7191 renders an arbitration provision per se unenforceable 'against any person other than the licensee.'

The Legislature could, of course, have saved a good deal of trouble if instead of saying that a non-compliant clause "may not be enforceable" it had chosen either "shall not be enforceable" or "may not be enforced".

Also of note is Turner's argument, rejected by the Court, that because Woolls is an attorney -- he is a well-established and respected insurance coverage attorney in the Los Angeles area -- he should be deemed to have known and understood that he was agreeing to arbitrate future disputes, the absence of the required language notwithstanding.  Sometimes an attorney is just another consumer:

As explained, section 7191 prescribes the consequence for noncompliance therewith.  A noncompliant arbitration provision is not “enforceable against any person other than the licensee.”  [Citation.]   We decline to rewrite the statute to provide that a noncompliant arbitration provision is also enforceable against a consumer who, due to education, training or experience, is aware that by agreeing to arbitration he or she is waiving the right to a court or jury trial.  This court’s role is simply to interpret the statute as it was enacted, not to add to, detract from, or fine-tune it.

(Italics added; original emphasis omitted.)

The decision in Woolls v. Superior Court (Feb. 28, 2005), Case No. B177992, can be accessed at these links in PDF and Word formats.  [Note: The links will expire in approximately 120 days; the opinion should still be accessible thereafter by substituting "archive" for "documents" in the URL.]

Elsewhere: The ABC Evening News and Peter Jennings have just finished spending most of a week warning consumers of the dangers of arbitration clauses "hidden in the fine print."

Punitive Damages in Contract Cases? Say It Isn't So! [It Isn't.]

Walter Olson is concerned:

J. Craig Williams sounds the alarm about a new California Supreme Court opinion (authored, whether curiously or not, by libertarian-admired Justice Janice Rogers Brown) which would seem to open a door for lawyers to start claiming punitive damages in contract disputes.

Hold on to your towels and don't panic, gentlemen: there appears to be a good deal of overstatement going around about the Court's year-end decision in Robinson Helicopter Company v. Dana Corporation.  While that decision may well mean that punitive damages will become an issue in some cases that also involve breach of contract claims, it does not stand for the proposition that one can recover punitive damages for breach of contract.  Decs&Excs' summary and analysis of the decision continues in the extended body of this post, below.

For those who want to read it for themselves, the decision in Robinson Helicopter Company, Inc. v. Dana Corporation (December 23, 2004), Case No. S114054 can be accessed at these links in PDF and Word formats.
[Note: The links will expire in approximately 120 days; the opinion should still be accessible thereafter by substituting "archive" for "documents" in the URL.]

Update [01/11/05]:  Timothy Sandefur of the Pacific Legal Foundation, guest-posting at Crime & Federalism, is also interested in the possible consequences of this case, in which he participated by filing an amicus brief.

An Arcane Point, Well Expressed

"'But all the fun's in how you say a thing.'"
-- Robert Frost, "The Mountain" [North of Boston (1914)]

Once in a while, if you are an appellate judge with more than a little learnin’, you just have to let yourself go. You simply must write an opinion in which you carefully and thoroughly explain why the appellant’s case must be dismissed, because his attorneys have fallen victim to a “particularly well-camouflaged trap for the unwary” secreted within a critical procedural rule. And while you are about it, you must pepper the opinion with witticisms, citations to Shakespeare and the Bible, and passing remarks on words that are needed but oddly unavailable in standard English. Yesterday, Presiding Justice Sills of Division Three of the Court of Appeal for the Fourth District let himself go in just that way.

Every appellate practitioner knows that the most critical deadline of them all is the deadline to file the Notice of Appeal. In most jurisdictions, including California, that time limit is jurisdictional: the appellate court has no power even to consider the matter if the notice is not filed on time, and missing it by even one day is fatal no matter how meritorious the arguments on appeal might otherwise be. At the outset of his opinion, Justice Sills summarizes the substance of the problem that leads to dismissal of this appeal:

Here’s the trap: Most of the time, unsigned minute orders granting a dismissal motion (as happens, for example, when the trial court grants a motion for summary judgment) are not appealable. So adversely affected counsel do not have to worry about the time running on their right to appeal. They can confidently sit back until a formal signed order or judgment of dismissal is filed.

Subdivision (a)(3) of section 904.1, however, creates a counterintuitive exception, because it makes even unsigned minute orders granting motions to dismiss for inconvenient forum directly appealable. Further, such an order -- unlike some other appealable orders under section 904.1 -- constitutes a “final judgment” as the term is defined in section 577. But, and here’s the real trap -- as a final judgment it cannot be attacked by a motion for reconsideration. In fact, the trial court does not even possess the authority to undo or amend it, on its own motion or prompted by a litigant.

These principles will force us, reluctantly, to dismiss this appeal in this most convoluted of cases.

An extended procedural summary follows, but the reader will soon perceive that the temptation to wax scholarly and poetical is not to be resisted:

We say “reluctantly” dismiss, because, as anyone who reads this opinion through to the end is about to learn, California’s law of appellate jurisdiction is full of fiendishly fine distinctions worthy of the most legalistic of medieval clergy. We have turned this case around like a prism hoping to find the light that might save this appeal. Alas, we have not found it despite any number of quick flashes. On analysis they all turned out to be evanescent.

Fascinating displays of erudition begin to manifest themselves, as for example in the court’s footnote 3, invoking the Bard of Avon:

In Shakespeare’s Henry V, there is an early scene where the Archbishop of Canterbury delivers a long, tedious and virtually incomprehensible speech to the new king (incomprehensible unless you have the text in front of you and you’ve taken a graduate seminar on the law of royal succession in medieval France) on a topic that even many lawyers would find arcane, choice of law. (The archbishop of Canterbury basically rebuts the idea that the “Salique” law of Germany (sometimes also spelt “Salic” or “Sallic”), which bars any female succession at all, applies to preclude English Henry’s claim to the French throne). But upon that fine, pedantic legal distinction would “awake” the “sleeping sword of war,” and, as a consequence, later in the play, 10,000 French knights and soldiers would get slaughtered in the mud at Agincourt. In the case before us, by contrast, the worst thing that can happen as a result of the fine pedantic distinctions on which this case turns is that a case which should be otherwise considered by a court in one state will be considered in another, which is not quite the same thing as dying in battle from a gale of Welsh arrows.

And on and on through 37 pages. Later references include the Biblical books of Luke and Daniel (the latter taking up the laws of the Medes and Persians), more Shakespeare (the come-uppance of Cardinal Wolsey in Henry VIII), Stephen Sondheim and, with seeming inevitability, the linguistic analysis of Lewis Carroll’s Humpty Dumpty. Innumerable decisions from appellate courts within and without the State of California are taken up for consideration. Moreover, the good justice establishes his familiarity with lingua hip-hoppa:

For the appellate court, then, to deliberately scramble these distinctions is to engage in a kind of unseemly antinomianism that is, at root, so at odds with the Legislature’s and the Judicial Council’s handiwork that the net effect, in current parlance, is to “diss” that handiwork.²⁴

²⁴ For the sake of future readers just in case the word goes out of style soon, it is a short verb meaning "to show disrespect to." The problem is that modern English does not have a short verb that conveys the idea of deprecation so directly -- one practically has to go back to the era of King James to find something close. Contemn? Calumniate?

Enough. As is often written in non-legal weblogs, “Read the Whole Thing.”

The decision in Quest International Inc. v. Icode Corp. (Sept. 22, 2004), Case No. G032276, can be accessed at these links in PDF and Word formats. Because those links are not permanent -- and in honor of Justice Sills’ footnote 26:

²⁶Unlike doctors, appellate courts don’t bury their mistakes; we leave them embalmed for analysis by future pathologists for the rest of eternity.

-- Decs&Excs has also uploaded the decision to maintain its availability here.

Punitive Damages: Not a Double Jeopardy Category

The Court of Appeal has concluded that the fact that a defendant in a wrongful death case is already being punished criminally by imprisonment is no bar to that defendant also sustaining civil penalties through imposition of punitive damages.

With her driving ability significantly impaired by the influence of alcohol, defendant Deborah Gurnett swerved off the highway and struck and killed a cyclist. She later entered a "no contest" plea to charges of gross vehicular manslaughter while intoxicated and received the maximum sentence of ten years' imprisonment. The heirs of the deceased cyclist brought a civil action against Gurnett to recover damages for wrongful death. At trial, the jury awarded compensatory damages of $7.5 million and punitive damages of $35,000.

On appeal, Gurnett argued that the punitive damage award violated her constitutional rights, because she is already being punished through her criminal sentence. She urged that punitive damages violated the Fifth Amendment's prohibition of "double jeopardy," the prohibition on double punishment under the "excessive fines" clause of the Eighth Amendment, and the requirements of due process under the Fourteenth Amendment. The appellate court rejects all of these arguments: the Fifth and Eighth amendment prohibitions only control multiple punishments inflicted by the government in a criminal context and have no bearing on the rights of civil litigants to recover damages for behavior that is also a crime. The court further declined to adopt a "single suit" rule that would effectively limit the pursuit of a wrongdoer to whichever case, criminal or civil, first came to trial:

The mere absence of case authority supporting Gurnett’s substantive due process argument would be a minor impediment if we thought the argument tenable, but we do not. Sound policy dictates rejection of a constitutional rule barring the filing of both a criminal complaint and a civil complaint for punitive damages for a single course of conduct that injures an individual and violates the criminal law. There is no doubt that the goal in each of these cases would be to impose a penalty on the wrongdoer. But, a constitutional prohibition against imposing both penalties would apply regardless of the order in which the cases occurred. Here, the criminal case was filed first and resolved first. There is nothing that mandates this primacy, however. To accept appellant’s argument would lead ineluctably to the conclusion that a defendant who had been subjected to civil punitive damages would be immune from a subsequent criminal prosecution. [Citation.] We decline Gurnett’s invitation to create such a rule.

The decision in Shore v. Gurnett (Sept. 10, 2004), Case No. A101916 can be accessed at these links in PDF and Word formats. [Note: The links will expire in approximately 120 days; the opinion should still be accessible thereafter by substituting "archive" for "documents" in the URL.]

Recipes for Failure: A Losing Position, Sloppily Presented

California’s trial courts have the power to direct parties to civil cases to participate in arbitration. Often referred to as “judicial arbitration,” the procedure is non-binding in the sense that any party may, within 30 days after the arbitrator’s ruling, reject that ruling and have the case put back on track for trial. Although either side can reject the arbitrator’s award, it is expected that all parties and their counsel will participate in good faith, to the end that the case may actually be resolved without further proceedings in the court. (A substantial percentage of cases referred to arbitration are in fact resolved as a result, relieving the courts’ overstuffed civil dockets.)

Emphasizing the obligation to participate in arbitration proceedings in earnest, the Court of Appeal, in a case out of Sacramento, has affirmed an order imposing sanctions in excess of $2,000 on an attorney who rejected an unfavorable arbitration award after he had “arrived late to the arbitration, failed to provide the pleadings and brief requested by the arbitrator, failed to have [his clients, plaintiffs] the Rietvelds appear or be available by telephone, and failed to produce evidence, including testimony that was necessary to support the Rietvelds’ case.”

The sanctioned attorney had an uphill fight to begin with, but he appears to have compounded his problems by presenting his case weakly, at best, on appeal. In a section of the opinion that will not be included when the case appears in the Official Reports, appellate practitioners will find the following catalog of how not to persuade an appellate court. (Emphasis added throughout.)

The Rietvelds’ opening brief is deficient. Their attorney quotes major parts of several opinions, both Supreme Court and Court of Appeal, but fails to enclose these paragraphs in quotation marks. He also leaves out footnotes, internal citations, and appropriate ellipses, but gives no indication that anything is left out. Although he cites the cases from which he appropriated the quotes, the pinpoint cites are under inclusive. This unacceptable writing style, even if it was not meant to be deceptive, would have received a failing grade if done in law school.

Counsel for the Rietvelds also fails to substantiate the factual statements made in the brief. In the statement of facts, for example, he recounts the critical facts concerning Jon Rietveld’s agreement with Rosebud. The citation to the record to support these factual statements, however, is to the memorandum of points and authorities in opposition to the summary judgment, not to any evidence. . . .

Lest the attorneys for the defendant (Rosebud) become too pleased with themselves, the Court offers a few pointed criticisms on that side as well:

Not to be outdone, Rosebud’s attorney subtly attempts to influence this court with half-truths and innuendo. . . .

* * *

Further trying our patience, Rosebud baldly asserts the appeal is untimely. This assertion is not accompanied by authority. Rosebud neglects even to reveal why it believes the appeal is untimely.

Counsel owes a duty to this court to be more forthright [citation] and to provide authority for legal arguments [citation], rather than throwing them out off-handedly.

Despite all the problems in the parties’ briefs, we elect to disregard the deficiencies and decide the case on the merits.

The complete opinion in Rietveld v. Rosebud Storage Partners L.P. (July 30, 2004), Case No. C044766, can be read at these links in PDF and Word formats. Only the discussion of the merits of the sanctions award will be included when the decision is published officially.

For Want of a Phrase, The Case is Lost . . .

In Herman Melville's immortal Billy Budd [take that as your literary recommendation for the day], the conflicted Captain Vere avers that "Form is everything." The California Supreme Court provides a case in point:

California Code of Civil Procedure §2015.5 permits declarations -- unsworn statements executed under penalty of perjury -- to be used as the evidentiary equivalent of a sworn/notarized affidavit. However, the statute incorporates certain explicit formal requirements: It "defines a 'declaration' as a writing that is signed, dated, and certified as true under penalty of perjury. In addition, [the statute] specifies that a declaration must either reveal a 'place of execution' within California, or recite that it is made 'under the laws of the State of California.'"

Dheeraj Kulshrestha sued his former employer, claiming that he had been induced to move from Ohio to California by promises of a management position, and that he was subsequently terminated for unlawful and discriminatory reasons. The employer filed a motion for summary judgment. Kulshrestha's opposition papers included his own declaration, which stated that it had been signed by him in Ohio "under penalty of perjury." The declaration did not state that the penalties of perjury were those "under the laws of the State of California." The trial court concluded that the declaration was inadmissible; in a 22-page unanimous opinion, the California Supreme Court agrees:

In this suit against a firm for which he briefly worked, the plaintiff sought to prevent summary judgment by filing a declaration under penalty of perjury that showed a 'place of execution' in another state. Moreover, the document did not reference California’s “laws.” The evidence was excluded, summary judgment was granted, and dismissal was affirmed on appeal.

We now decide if declarations signed under penalty of perjury outside this state satisfy section 2015.5, and are admissible in summary judgment and other authorized proceedings, even though the contents are not certified as true “under the laws of the State of California.” The answer to this narrow question is no.

Section 2015.5 seeks to enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that perjured statements might trigger prosecution under California law. The Legislature has determined that such knowledge can be inferred from the 'place of execution' where the document shows it was signed here. All other declarations, including those signed in other states, must invoke 'the laws of the State of California.' Indeed, when lawmakers added this phrase to section 2015.5 in 1980, it was deemed necessary to alert out-of-state declarants that California’s perjury laws — which were made extraterritorial at the same time — might apply. The lower courts correctly found the present declaration flawed in this regard. We will affirm the judgment.

(Italics in original; citations omitted.)

The decision in Kulshrestha v. First Commercial (July 19, 2004), Case No. S11564, is available at these links in PDF and Word formats.

UPDATE: U.S. Supreme Court Declines to Interfere in California Lawsuit Against Milwaukee Archdiocese

Last October, Decs and Excs reported on a decision in which the state Court of Appeal held that the Catholic Archdiocese of Milwaukee, Wisconsin, can be sued in California for damages arising from alleged sexual molestation by a priest that it had transferred from Milwaukee to Orange County. The Archdiocese has since requested review of that decision by California Supreme Court, which declined to hear the case in January of this year. The Archdiocese then filed a petition for certiorari to the U.S. Supreme Court which this week, without comment, also declined to hear the case. The Court of Appeal's decision is now final and the case will proceed forward in the trial court.

An AP/CNN report on the U.S. Supreme Court's action can be found here.

The Court of Appeal's decision is archived here. (The link in the original post is no longer accurate.)

Request for Sanctions Against Party Compelled to Provide Discovery May Be Presented in Separate Motion

When a party is obliged to bring a motion to compel his opponent to respond to a request for production of documents, the court is authorized to impose a monetary sanction on the uncooperative opponent. Typically, the request for imposition of the sanction will be included in the moving papers, but is that procedure mandatory? The Third District Court of Appeal, in a case out of Calaveras County, concludes that the sanction request can be presented in a separate motion, filed after the original motion has been heard and granted.

Morrie London was terminated after nine years working a manager in the copper shop of Dri-Honing Corporation. He sued, seeking damages for wrongful discharge. Dri-Honing urged that it was justified in terminating London because of incidents of insubordination. It also contended that the termination was warranted because the shop had been unprofitable under London's management. When London requested production of records that would disclose the shop's profitability or lack of profits, Dri-Honing refused to provide the information, contending it was "irrelevant." London filed a motion to compel production of the records.

At the motion hearing, Dri-Honing was given a choice: it could rely on its unprofitability rationale and produce the documents, or it could keep the documents confidential and be limited to relying solely on its insubordination rationale. Dri-Honing elected to keep the documents confidential.

At the hearing, the trial judge asked London's attorneys to state the amount they had incurred in fees for the motion, so that Dri-Honing could be required to pay that amount as a sanction for contesting its discovery obligations. Dri-Honing objected, correctly, that no sanctions could be imposed because they had not been mentioned or claimed in the moving papers. The court then permitted London to file a separate motion for the sanctions, which it granted in the amount of $6,000. Dri-Honing appealed, and the Court of Appeal affirmed the order for sanctions.

The bulk of the opinion consists of an analysis of the structure of the sanctions provisions in the Discovery Act. The Court of Appeal concludes that the favored approach is to make any request for sanctions in the original moving papers, but that there is nothing in the statutory structure that precludes a separate, later application, so long as it is made with reasonable promptness.

The Court expresses skepticism for most of Dri-Honing's arguments, including particularly the suggestion that the sanctions demand should be made in the original papers to permit the responding party to assess whether it makes more sense to fight the discovery or to surrender voluntarily. That calculus, the Court notes, runs counter to the policy requiring the voluntary production of relevant information:

As a final gasp, Dri-Honing states that the 'sanctions request must be included in the motion to compel in order to enable the nonmoving party and his attorney to consider whether and in what manner they will oppose the motion.' We note that a party is obligated to comply with the discovery statutes cooperatively and in good faith, regardless of what sanctions it may or may not be subject to. The suggestion that a party’s cooperation during discovery depends on how heavy the hammer is that hangs above its head is troublesome.

[Emphasis added.]

The decision in London v. Dri-Honing Corporation (April 19, 2004), Case No. C043096, can be found at these links in PDF
and Word formats.

Contact! Two New Decisions Consider Jurisdiction of Over Out-of-State Defendants

Unless you are an attorney -- and quite possibly even if you are -- there is nothing particularly riveting about "long-arm" statutes, which address the extent to which the courts of one state can exercise jurisdiction over out-of-state litigants without violating the Constitution. We last reported on this topic here. Two new Court of Appeal decisions address the extent of "contacts" with California -- or "purposeful availment" of some benefit within California -- that will support jurisdiction over non-California-based businesses.

♣ In an action against a group of Las Vegas casinos, the Court of Appeal reversed a trial court dismissing the case for lack of jurisdiction over the defendants. The casinos advertised within California via billboards, print ads and broadcast advertisements, and utilized the services of an independent California company for the purpose of attracting a limited number of "high-end" customers from California. The appellate court found a sufficient connection between the hotels' California-focused activities and the claims asserted by the plaintiff:

Snowney’s alleged causes of action for violation of the unfair competition law, breach of contract, unjust enrichment, and false advertising all arise from or are substantially connected to the Hotel Defendants’ efforts to solicit California patrons. The false advertising count arises directly from the defendants’ local advertising in California in that the complaint, liberally construed [citation omitted], alleges that the advertising was false or misleading.

The counts for violation of the unfair competition law also arise directly from the Hotel Defendants’ forum contacts to the extent the counts are based on a violation of the false advertising law [citation omitted]. To the extent those counts are based on alleged unfair or fraudulent business practices apart from false advertising in California, we conclude that the counts are substantially connected to the defendants’ California contacts. Many of the California residents who visited the hotels presumably did so as a result of the defendants’ advertising in California, or made their reservations via electronic or telephonic communications that were purposefully directed at California residents. We conclude that those California contacts are substantially connected to causes of action that challenge an alleged mandatory surcharge imposed on all hotel guests. We need not detect a causal connection between the defendants’ California contacts and the alleged charging of a nightly energy surcharge without prior notice. [Citation omitted.] Rather, we conclude, in light of the nature and intensity of the contacts, that the contacts are sufficiently related to the alleged causes of action to justify the exercise of personal jurisdiction. Our conclusion also applies to the breach of contract and unjust enrichment counts, which are based on essentially the same alleged wrongdoing.

♣ In another case, the Court of Appeal has concluded that there is a sufficient basis for jurisdiction in California for purposes of a suit against a Nebraska-based telemarketing firm arising from transactions in which "a California resident initiates a phone call to buy a product, reaches a telemarketer who handles the order, the telemarketer then initiates a sale of a separate product and allegedly makes misrepresentations during the sales pitch for the separate product."

Because the original transaction began with the California resident calling out of the state, the usual rules of jurisdiction would not permit suit in California if the claim arose solely from that call. The appellate court reasons, however, that the nature of the allegedly unlawful transaction -- in which the Nebraska telemarketer initiates an "upsell" transaction, offering additional products and services unrelated to those that the California customer had called to order -- was the equivalent of a new marketing call in to California, thus providing the necessary contact to support the exercise of jurisdiction.

The court's decision in the casino case, Snowney v. Harrah's Entertainment, Inc. (March 11, 2004), Case No. B164118, can be found at these links in PDF and Word formats. The telemarketing case, West Corporation v. Superior Court (March 17, 2004), Case No. D042633, can be found at these links in PDF and Word formats.

Because I Could Not Stop for Death: Trial Court Abused Its Discretion in Refusing Continuance After Death of Plaintiff's Attorney

The Court of Appeal for the Second District has ordered the continuance of a trial for six months and the reopening of discovery after the trial judge refused to do so. The opening paragraph of the appellate court's decision begins with a firm statement of the obvious:

If plaintiff's counsel's serious physical illness and its debilitating effects culminating in death during the final stages of litigation are not good cause for continuing a trial and reopening of discovery, there is no such thing as good cause. A plaintiff in a personal injury action is not chargeable with the continued good health of his or her attorney. Forcing such a plaintiff to trial without counsel or adequately prepared counsel is not likely to ensure fairness, the overall policy of the law.

Briefly, counsel for plaintiff in a personal injury case was suffering from advanced pancreatic cancer. Based on his ill health, he obtained an order continuing trial for three months. Counsel died one month later. The plaintiff sought and obtained new counsel, who needed time to prepare for trial. When new counsel made that request, the trial court refused to grant any but the briefest of continuances -- the new date conflicted both with counsel's schedule and with plaintiff's own impending surgery -- and refused to reopen discovery to permit new counsel to prepare for trial. In granting plaintiff's petition for a writ, the Court of Appeal finds that the trial judge abused his discretion as a matter of law.

Perhaps the most remarkable portion of the appellate decision is the description of events at the hearing on the second motion to continue the trial. Both the judge and defense counsel are portrayed as almost irrationally firm in their positions, refusing to grant any quarter in light of the plaintiff's unusually difficult position.

Real party [i.e., the defendant] opposed the continuance, arguing the trial date had already been continued once to accommodate [attorney] Stewart's illness. Real party asserted he would be 'at a disadvantage' if petitioner designated additional experts because costs would increase. He also claimed petitioner had unreasonably delayed finding new counsel. Real party concluded by asserting: '[I]t is obvious that plaintiff would not be injuriously affected by denial of the continuance. The time of the court should not be wasted by failure of plaintiff and counsel to be prepared and for plaintiff to shop around for attorneys.'

At the hearing, the trial court noted that it continued the first trial date for three months due to Stewart's illness and said: 'And now a month after he dies, you come in and ask for more time. That could have been done better.' Petitioner explained that he learned of Stewart's death on September 29, 2003, and that he started looking for a new lawyer that day. He denied real party's claims he had 'known for months' that Stewart was terminally ill. Real party contended petitioner should not be permitted to supplement his expert witness list because the terminally ill Stewart had missed the deadline to do so: 'That was his decision as attorney. You can't change that after you die. That will prejudice my client.' Without requiring real party to provide any additional explanation of the potential prejudice, the trial court continued the trial date to January 26, 2004, and denied the request to reopen discovery. The trial court apparently did not consider that Rosenberg was unable to start trial on that date, or that petitioner was scheduled for spinal surgery December of 2003.

Tough crowd.

The decision in Hernandez v. Superior Court (February 23, 2004), Case No. B171030, can be found at these links in PDF and Word formats.