"After a review of these authorities, we conclude that National did not subject itself to specific jurisdiction in California merely by accepting premium payments from California and by processing and paying claims submitted by its insureds for services rendered in this state. National did not 'come here' voluntarily, no matter how many insureds did. It was the unilateral decision of Elkman and other insureds to relocate to California which caused National to accept payments from this state and to process and pay claims for services rendered in this state. These circumstances do not support a findin National purposefully availed itself of forum benefits so as to make it subject to specific jurisdiction in California.
Justice H. Walter Croskey
Elkman v. National States Insurance Company (B205919, May 14, 2009)
pp. 20-21
Week of May 11, 2009
Week of May 4, 2009
"Thus the court went beyond the record when it cast the boats as floating apartments or condominiums, and appellant's lease of his slip as analogous to a lease for a dwelling. Respondent contends appellant waived the absence of such evidence on appeal, but respondent cites no authority showing a party opposing summary judgment or adjudication waives the moving party's failure to present evidence to support judgment for the moving party.
Justice Laurence D. Rubin
Nicholls v. Holiday Panay Marina (B202356, May 5, 2009)
p. 10
Week of April 27, 2009
Defendant appeals the judgment, claiming the court erred in spectacular fashion by allowing the wrong plaintiff (standing is contested, as plaintiff is an alleged assignee of the patent owner)to sue the wrong defendant (defendant is the ultimate parent corporation of a French entity that manufactured the licensed products at issue) in the wrong court (federal courts have exclusive jurisdiction over cases in which the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law).
Justice Raymond J. Ikola
Applera Corporation v. MP Biomedicals, LLC (G038984, April 30, 2009)
p. 2
Week of April 20, 2009
"Defendants' argument is curious for another reason. If the rule summarized in Gogri and Franklin applies (which it does not), then Fries's dismissal was invalid because her right to dismiss was foreclosed by the tentative ruling. In that case, subsequent discovery orders are not void - but the basis for defendants' costs awards also disappears. This would seem to be a poor bargain, and, in fact, it is not what defendants appear to be seeking. Instead, it seems defendants would like this court to find the dismissal sufficiently valid to support their costs awards, but not so valid as to deprive the court of jurisdiction to rule on the discovery motions. Not surprisingly, they cite no law for this 'a little bit dismissed' theory."
Justice Peter J. Siggins
Fries v. Rite Aid Corporation (A120488, April 22, 2009
p. 12
Week of April 13, 2009
"As a result of these weighings, modern law, if not replete with examples of 'wrongs' for which there is no remedy, at least offers numerous examples. Thus, although a spouse may sue for loss of consortium deriving from the injury to his or her spouse, an unmarried cohabitant may not. (Cf. Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 404-405; Elden v. Sheldon, supra, 46 Cal.3d at pp. 277-279.) Although it is easily forseeable that a child may suffer grievous harm when a parent is personally badly injured - similar to a spouse's loss of consortium - no recovery is allowed to a child for damages based on the immediate injury to a parent. (Borere v. American Airlines, Inc. (1977) 19 Cal.3d 441, 444; Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App. 4th 26, 32.) And, while that same child may recover for personal distress if he or she witnesses the injury to the parent, a sibling who is not present at the moment of injury cannot. (See Dillon, supra, 68 Cal.2d 728, and subsequent cases.
Justice Betty Ann Richli
The Mega Life and Health Insurance Company v. Superior Court of Riverside County (E045969, April 14, 2009)
p. 6
Week of August 18, 2008
"As we have noted, Pelton-Shepherd did not file a motion for leave to reopen discovery so that its motion to compel could be heard after the discovery motion cutoff date. It is disingenuous for Pelton-Shepherd to suggest the trial court properly exercised its discretion in granting a motion Pelton-Shepherd never made."
Justice Ronald B. Robie
Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (C055449, Aug. 19, 2008)
p. 33
Week of August 11, 2008
"The arbitration clause in issue was part of an agreement between two business entities governing their business relationship. While the language of the arbitration provision might be broadly construed to cover every type of business dispute that might arise between the two signators, it cannot seriously be argued that the parties intended it to cover tort claims arising from an alleged violent physical assault by an employee of one company against an employee of the other in the context of an intimate domestic relationship between the them."
Justice Sandra L. Margulies
RN Solution, Inc. v. Catholic Healthcare West (August 15, 2008, A118077)
p. 13
Week of December 3, 2007
"The City nevertheless argues that the property was not in a dangerous condition because vehicles rarely hit hydrants at the terminal. This argument ignores the evidence that prior to the reconfiguration of the terminal, no hydrants were situated in the path of traffic. Rather, they were located in container storage areas out of the path of traffic. Thus, the absence of a large number of prior accidents involving fire hydrants would not be a material factor in determining whether the location of the hydrant was a dangerous condition. The City also points out that no other vehicles collided with this particular hydrant before or after Young’s accident. We find no significance to this fact. The hydrant was exposed to traffic for only 30 hours before Young’s accident and for two months after the accident. Following the accident, SSA requested that flashing barricades be installed in front of the hydrant until it could be relocated. It is not clear from the record whether such barricades were actually installed, but if so, such an obvious warning would undoubtedly have a bearing on the number of accidents."
Justice Kathryn Doi Todd
City of Long Beach v. Stevedoring Services of America (Dec. 4, 2007, B187003)
p.12
Week of November 26, 2007
"ACSC knew its older managers objected to its compensation reduction plan. Jurors could reasonably infer it used pretexts to deny Wysinger a transfer and created a hostile work environment in retaliation for his EEOC complaint. Kane told Wysinger, "[W]e are going to crush" the managers opposed to the plan. He told Coleman, "It doesn't matter what you did for this company in the last 30 . . . years. None of that matters. And you can die at your desk. We'll replace you tomorrow. Nobody cares." The jury could find that this callous and retaliatory conduct merits an award of punitive damages"
Presiding Justice Arthur Gilbert
Wysinger v. Automobile Club of Southern California (Nov. 29, 2007, B191028)
P. 14
ABA Journal Blawg 100
I was surprised and pleased to learn that this blawg had been selected for the ABA Journal Blawg 100. The complete list is on the ABA Journal site, where you can vote for your favorite blawgs in twelve categories. If you'd like to vote for this blawg (and I'd be delighted if you did) you can do it here.
Week of November 19, 2007
"It has apparently become common practice in the trial courts for litigants to file a “notice of unavailability” under the guise of Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299. The notice purports to advise the other parties to the action—as well as the court—that the deliverer will not be available for a prescribed period of time and that no action may be taken during that period which adversely affects the unavailable party. To the extent this practice attempts to put control of the court’s calendar in the hands of counsel—as opposed to the judiciary—it is an impermissible infringement of the court’s inherent powers."
The Court
Carl v. Superior Court (Nov. 21, 2007, G038766)
p. 2
Week of November 12, 2007
"Next, plaintiffs contend LA Sound is not liable for the misrepresentations on the application. They claim LA Sound did not know about the joint venture. They further claim the insurance broker was St. Paul's agent and solely responsible for the application's accuracy. But LA Sound was a party to the joint venture agreement. And an insurance broker by definition represents policyholders, not insurers."
Justice Raymond J. Ikola
LA Sound USA, Inc. v. St. Paul Fire & Marine Insurance Company (Nov. 14, 2007, G036691)
p.8
Week of November 5, 2007
"We agree with our colleagues in Division Five that Insurance Code section 1871.7* was not designed to prohibit fraud on the part of insurers, but rather to prohibit submission of fraudulent claims to insurers, and thus we affirm the judgment of dismissal.
This is appellant's third attempt to assert a claim under section 1871.7 based upon an insurance company's claims handling practices."
Justice Madeleine Flier
State of California ex rel. John Metz v. Farmers Group, Inc. (Nov. 9, 2007, B196455)
p. 2
*Footnote omitted
Week of October 29, 2007
"Although Northrop does not expressly say so, it appears to be arguing that, even if the 10-year statute applies to enforcement actions, the four-year statute applies to recognition actions. For this there is no authority, not even Dore v. Thornburgh, which was an action to enforce a foreign judgment and predated the Uniform Act’s recognition provisions by 75 years. Moreover, the suggestion that a shorter statute of limitations should apply to a “recognition” action than to an action seeking enforcement of the judgment after it is recognized is irrational, as it would completely undercut the Legislature’s intent to enforce foreign judgments in like manner with sister state judgments.
Justice Laurence D. Rubin
Guimaraes v. Northrop Grumman Corporation (Oct. 30, 2007, B194205)
p. 8
Bonus Quote: From page 9 of the same case: "Northrop further argues that the Legislature’s requirement that foreign judgments be enforced “in the same manner” as sister state judgments does not include time limitations, which govern “when” an action may be brought, not “how” it must be brought. Neither legal authorities nor common sense supports this proposition. The definition of “manner” includes “a mode of procedure” (Webster’s Ninth New Collegiate Dictionary (1989) p. 724, column 2), and timing is a matter of procedure."
Week of October 22, 2007
"The record establishes that Arthur represented, both orally and in writing, that he was authorized to sell the property. However, no written authorization to sell was ever produced at trial, and the only testimony on the issue was that the Tseng Brothers did not sign a written authorization. Notwithstanding the complete absence of evidence of written authorization, the trial court found that the purchase agreement was 'entered into with the express authorization and consent, both orally and in writing, of all four Defendants."
Acting Presiding Justice Orville A. Armstrong
Elias Real Estate, LLC v. Tseng (Oct. 25, 2007, B192857)
p.4
Week of October 15, 2007
"PG&E takes the position that it could infer Romero was properly joined from the fact that he was named a defendant pursuant to section 382. We disagree. No inference of proper service necessarily can be drawn from the mere fact that a party is named as a defendant, and service could not have been alleged in the complaint because it would have occurred subsequent to the filing of the complaint."
Acting Presiding Justice Cole Blease
Romero v. Pacific Gas & Electric Company (Oct. 18, 2007, C053700)
p. 10
Week of October 8, 2007
"Further, citing a 1921 Pennsylvania Supreme Court decision, [fn. 8] he contends he has an unfettered right to circulate a petition and to present it to the sovereign, which right “cannot lawfully be infringed, even momentarily, by the state.” He argues “[a] citizen’s right to petition his government is sacred. The right to redress grievances by placing them before the sovereign has been fundamental to Western Civilization since the 13th Century—since the signing of the Magna Carta. Throughout our history, the Right to Petition has, traditionally, been jealously guarded as ‘one of the most precious rights of our democratic process.’ [Citation.]” In taking this position, Stansbury overlooks the fact there is no constitutional right to place an invalid initiative on the ballot. (Dunkl, supra, 86 Cal.App.4th at p. 389.) Moreover, he ignores entirely the body of law which recognizes preelection challenges to initiative measures."
fn.8 Spayd v. Ringing Rock Lodge (1921) 270 Pa. 67
Justice Douglas P. Miller
City of Riverside v. Stansbury (Oct. 12, 2007, E040125 & E042973)
p. 13
Week of October 1, 2007
"We do not find it self-evident a law firm's commendable willingness to provide its services on a pro bono basis to low income clients should necessarily justify a diminishment in the fee award when that pro bono representation proves successful."
Justice Earl Johnson, Jr.
Cruz v. Ayromloo (Oct. 3, 2007, B190959)
p. 9
Comment: The opinion makes it very clear that if the respondents had appealed the trial court's ruling that the fee award should be reduced because the respondents' counsel had agreed to represent them pro bono, the Court of Appeal would have reversed that ruling. In two lengthy footnotes that contain a multitude of citations Justice Johnson explains that pro bono representation should neither prevent nor reduce a fee award. It may be that the Justice, who retired two weeks later, wanted to do as much as he could to encourage future pro bono work before he left the bench. The successful respondents in this action were thirty-two tenants who were evacuated by the City of Los Angeles because the building they were living in was unsafe, and were then illegally evicted when the landlord refused to let them move back in. Their case highlights the need for pro bono representation.
Week of September 24, 2007
"In 1992 or 1993, to assist in prosecuting its lawsuit, SSI hired an investigator to surreptitiously obtain Disney documents. Other than a purported admonition to obey the law, SSI provided no direction or supervision for the investigator’s activities. Working at least until 1995, the investigator took thousands of pages belonging to Disney, including documents marked privileged and confidential. He obtained the documents by breaking into an uncertain number of Disney office buildings and secure trash receptacles, and by trespassing onto the secure facility of the company with which Disney had contracted to destroy its confidential documents."
Acting Presiding Justice Thomas L. Willhite, Jr.
Stephen Slesinger, Inc. v. The Walt Disney Company (Sept. 25, 2007, B178340)
p. 2
Read my discussion of this case on the California Civil Litigation Blawg.
Week of September 17, 2007
"In support of its warranty argument, Wells Fargo vaguely directs us to divisions 3 and 4 of the code. Our review of the 120 or so sections within these two divisions reveals a number of warranties made by a depositor presenting a check (see, e.g., §§ 3416, 3417, 4207, 4208), but we have been unable to locate a specific section providing that a depositor, by presenting a check for payment, warrants there are sufficient funds in the payor bank to cover the item. Unearthing no authority to support this argument, we do not consider it further."
Justice Richard M. Aronson
Holcomb v. Wells Fargo Bank, N.A. (Sept. 20, 2007, G037638)
p. 11
