Category: Litigation Tips

At Lewis & Llewellyn, we routinely handle matters at both the trial court and appellate level.  As any litigator should know, whether or not an order is appealable, and the timing of the notice of appeal, can present some complex issues.

Last month, California’s Fifth District Court of Appeal issued an opinion holding that a “judgment” filed by a trial court was not, in fact, final and therefore was not appealable.  The lesson for lawyers – don’t file a notice of appeal until all the issues in your case have been decided, even if all that remains to be determined is the amount of punitive damages.

In Baker v. Castaldi, 235 Cal. App. 4th 218 (2015), plaintiff sued defendants for allegedly stealing his antiques.  Baker sought compensatory and punitive damages.  Phase one of the trial addressed liability and compensatory damages, as well as whether Baker was entitled to punitive damages.  Phase two, if required, would address the calculation of those punitive damages.

At the conclusion of phase one, the court issued a document titled “judgment” awarding plaintiff $610,500 in compensatory damages plus interest and costs against the defendants.  Punitive damages, which the court found were warranted, were to be determined in phase two which the court described as a separate trial.

Several appeals of the “judgment” were filed.  The Court of Appeal for the Fifth Appellate District, however, ruled that this “judgment” was neither final nor appealable.

The Court held, “[a] judgment is final where no issue is left for future consideration except the fact of compliance or noncompliance with the order.”  In this instance, the trial court issued a judgment regarding compensatory damages and liability, but still specified that the amount of punitive damages to be awarded would be decided in a subsequent proceeding.  Therefore, the Court of Appeal reasoned, “the ‘judgment’ did leave open an issue for future consideration: The amount of punitive damages.”

The lesson for litigants is clear.  A party cannot avoid a decision on damages by immediately appealing a ruling on liability.  As the Court of Appeal made clear, the amount of damages is “essential to a final determination of the rights of the parties.”  Therefore, the appeal will have to wait.

Many attorneys assume that using a peremptory challenge means they are entitled to reject a potential juror without stating a reason.  One prosecutor found out the hard way that this is not entirely true, particularly when faced with a Batson/Wheeler motion.

In People v. Cisneros, 2015 WL 521878 (Cal. App. 2d. Dist. Feb. 9, 2015), a recent opinion published by the Court of Appeal, a man was accused and convicted of making criminal threats against his girlfriend.  He appealed, alleging that the prosecutor had discriminiated against men in exercising peremptory challenges during jury selection.  The Court of Appeal agreed.

The Court of Appeal found that the prosecutor – who had used seven of her nine peremptory challenges to strike men from the prospective jury – had failed to provide an adequate, gender-neutral reason for exercising two of the challenges after opposing counsel raised Batson/Wheeler motions.  For the two challenges found to be improper, the prosecutor asserted, when asked by the trial court, that she believed the next jurors in line were each a “better fit.”

As the Court of Appeal held, “whenever counsel exercises a peremptory challenge, it necessarily means that he or she prefers the next prospective juror to the one being challenged (whether the individual qualities of the next person are known or unknown).  It is, in effect, no reason at all.  Thus, simply reciting this truism while striking a prospective juror who is member of a protected class is not an adequate nondiscriminatory justification for the excusal, particularly when, as here, in each instance to reach the preferred next prospective juror the prosecutor elected to strike a prospective male juror rather than one of the many prospective female jurors then seated in the jury box.”

However, as the Court of Appeal noted, the “bar [is] not high” – the prosecutor’s explanation for striking another juror for being “kind of rough around the edges” and another for being “overly-analytical” survived Batson/Wheeler motions.  Therefore, every lawyer should have a valid reason in mind when exercising a peremptory challenge, as long as that reason isn’t the next juror would be a “better fit.”

At Lewis & Llewellyn, we represent some of the world’s leading companies in responding to third party subpoenas, in both state and federal courts across the country.  Practitioners should take note that the Ninth Circuit Court of Appeals recently created some potentially helpful law regarding cost shifting for federal third party subpoenas.  Under Federal Rule of Civil Procedure 45(d)(2)(B)(ii), a court order commanding production in response to a subpoena “must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.”  Though this language was added when the Rule was amended in 1991, it had not been interpreted by the Ninth Circuit until the recent decision in Legal Voice v. Stormans Inc., 738 F.3d 1178 (9th Cir. 2013).

In Legal Voice, Stormans, Inc. sued Washington State, seeking to enjoin enforcement of rules requiring pharmacies to maintain and dispense certain drugs.  Stormans subpoenaed the Northwest Women’s Law Center (“Law Center”), which had played an important role in the law’s enactment, but was a not a party to the underlying action.  The Law Center objected to the subpoena, and Stormans moved to compel.  The District Court granted the motion to compel as to six of the fourteen requests in the subpoena, but refused to grant the Law Center’s request under Rule 45(d)(2)(B)(ii) for Stormans to pay its cost of compliance.  On appeal, the Ninth Circuit overturned the District Court’s ruling, holding that “Rule 45(d)(2)(B)(ii) requires the district court to shift a non-party’s costs of compliance with a subpoena if those costs are significant.”  Id. at 1184.

Importantly, the court found that the rule “provides no exceptions,” “is mandatory,” and that “when discovery is ordered against a non-party, the only question before the court in considering whether to shift the costs is whether the subpoena imposes significant expense on the non-party.  If so, the district court must order the party seeking discovery to bear at least enough of the cost of compliance to render the remainder ‘non-significant.’”  Id. (citing references omitted).  The court subsequently found that the $20,000 the Law Center had incurred complying with the subpoena was “significant.”

This case is a potentially powerful tool for battling overly burdensome or costly discovery requests served on third parties.  Attorneys on the receiving end of a subpoena, or even a motion to compel, should keep this case in mind in responding – and potentially objecting – to subpoenas here in the Ninth Circuit and elsewhere.

At Lewis & Llewellyn, we practice in state and federal courts throughout the country. Attorneys who practice in federal court in Southern California – specifically the Central District of California – should be aware of new local civil rules that took effect on June 1, 2014.  The amended rules chiefly concern, among other things: (i) mandatory chambers copies for all pleadings filed electronically with the court; (ii) formatting for Supreme Court case citations in briefs, and (iii) additional sanctions on attorneys and parties for failure to follow local rules.

These seemingly picayune details can often determine whether a court grants or denies a critical motion.

Until recently, a litigant filing a motion in San Francisco Superior Court could simply notice the hearing for a date of his or her choosing, so long as it complied with the statutory minimum of 16 court days’ notice.  However, an amendment to local rule 8.2 requires the moving party to obtain a hearing date and reservation number by sending an email in advance to the Court.  After obtaining the hearing date, the moving party must file the motion within 24 hours.  The Court is setting limits on the number of matters to be heard each day to better manage the calendar.  In light of the new rule, the practitioner would be well advised to plan in advance and not leave the filing of motions to the last possible day.

Many California attorneys likely assume that you can use denials to requests for admission as admissible trial evidence.  Plaintiff’s counsel in Gonsalvez v. Li, 2015 WL 164606 (Cal. Ct. App. Jan. 13, 2015) made the assumption, and it cost him a jury verdict of more that $1.2 million.

In a recent decision by the California Court of Appeal, the Court held that California’s discovery statutes do not permit use of a party’s denial or lack of admission in response to a request for admission as evidence at trial.  Gonsalvez, 2015 WL 164606 at *7.  In Gonsalvez, a BMW salesman, Kenneth Gonsalvez, sued defendant Ran Li after Li caused an accident during a BMW test drive, resulting in extensive injuries to Gonsalvez.  At trial, plaintiff’s counsel questioned Li about his qualified denials to various requests for admission, including a request that he admit that he was “driving too fast for the conditions.”  Plaintiff’s counsel, over defense counsel’s objections, again cited to Li’s qualified denials in his closing argument, and the jury returned a verdict of more than $1.2 million in Gonsalvez’s favor.

On appeal, Li’s counsel argued that the trial court erred in permitting plaintiff’s counsel to examine Li about his negative responses to Gonsalvez’s requests for admission.  The Court agreed with Li’s counsel, vacating the judgment and remanding the case to the trial court.  After noting a “surprising paucity of relevant authority” on the topic, the Court highlighted that the relevant discovery statues only explicitly “provide that admissions in response to RFA’s are binding on the party at trial.” Id at *5 (emphasis in original); see also Cal. Civ. Proc. Code section 2033.410.  Based on this language, and an analysis of authority in other jurisdictions, the Court ultimately held that “denials of RFA’s are not admissible evidence in an ordinary case, i.e., a case where a party’s litigation conduct is not directly in issue.”  Gonsalvez, 2015 WL 164606 at *7.

This case serves as an important reminder to litigators to flush out denials to requests for admission before trial.  Whether through special interrogatories, depositions, or even meet and confer correspondence, litigators should be sure to get to the bottom of RFA denials before it is too late.

Here at Lewis & Llewellyn, we frequently handle subpoena issuance and compliance in federal court, particularly for our Fortune 500 clients in the technology and financial sectors.  Effective December 1, 2013, Congress has made significant changes to federal subpoena practice.
Among other things:

• All subpoenas will now issue from the court where the case is pending, rather than the court where compliance is required.  Rule 45(a)(2).
• New Rule 45(a)(4) clarifies that before a “documents only” subpoena is served on the witness, notice and a copy of the subpoena must be served on all parties.
• The territorial limitations on subpoenas issued to non-party witnesses have been made more explicit.
• New territorial limitations have been placed on subpoenas issued to parties and party officers.
• Motions to quash will now presumptively be heard in the court for the district where compliance is required.

As most litigators know, e-filing has been commonplace in the Federal Courts for years.  However, the California Superior Courts have been slower to adopt this practice.  Recently, the San Francisco Superior Court has published Proposed Local Rules that, if adopted, may require attorneys to electronically file and serve nearly all civil pleadings effective January 1, 2014.

The proposed rule changes increase significantly the types of cases designated for mandatory e-filing including lawsuits involving breach of contract, business torts, personal injury and unfair competition.  Note, however, that self-represented parties and non-parties are exempt from the proposed e-filing requirements, and would still have to be served conventionally.

The budget challenge faced by the California court system has been publicized for years.  For over 10 years, individualized case management conferences have been considered the best way for the court to oversee civil litigation.  However, as a result of the courts’ very limited resources, effective February 26, 2013, the Judicial Council has amended California Rules of Court, Rules 3.712 and 3.720, to allow individual courts to exempt certain categories of general civil cases from the current mandatory case management rules.  The new rules apply to all cases filed before January 1, 2016.  Pursuant to the recent rule change, the Los Angeles County Superior Court recently exempted personal injury actions and limited civil cases from the mandatory case management conferences.  Instead, the court will set trial dates and make other case management orders, by issuing individual orders in individual cases.  It remains to be seen how other Superior Courts will respond to the recent rule change.  Stay tuned for further updates.

Effective January 1, 2013, California will align more closely with the Federal Rules of Civil Procedure regarding the duration of depositions. On September 17, 2012, the Governor signed into law section 2025.290 of the California Code of Civil Procedure, which will limit the duration of depositions to seven hours.

While the new law limits the duration of a deposition to seven hours—the same length as FRCP Rule 30(d)(1)—the law specifically lacks the FRCP’s limitation that the seven hours of deposition be completed in one day.  For litigators, this means that the duration of depositions may have been reigned in significantly, but there is still room to maneuver and strategically spread the deposition across multiple days, if necessary, as long as the total deposition does not exceed seven hours.

The new law does provide for exceptions.  For example, the parties may stipulate to waive the seven hour limitation.  In addition, the limitation does not apply to certain employee-employer lawsuits.  Finally, litigators should note that this new law does not affect existing rights to move for protective orders regarding the duration of a deposition.

When the New Year comes round and you are scheduling that first deposition of 2013, remember to consider the new seven-hour limitation and plan your depositions or stipulate to a waiver accordingly.