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Procedural Cases Cuenllas v. VRL International (2001) Green & Shinee v. Superior Court (The People) (2001) B138892 Katelaris v. County of Orange (2001) G025177 Ritzenthaler v. Fireside Thrift (2001) C028640 - Make Sure §998 Offers Include Attorneys' Fees Kalaba v. Gray (2002) B148401 - EXPERT WITNESS DESIGNATION - TREATING PHYSICIAN Rodas v. Spiegel (2001) B141290 *************** Cuenllas v. VRL International (2001) The Second Appellate District determined that a minute order needs to be titled "Notice of Entry" [of order] to start the 60-day time limit for filing a Notice of Appeal. Green & Shinee v. Superior Court (The People) (2001) B138892 This is a criminal case which concerns me as a civil attorney. The prosecution in this case was able to obtain and execute a search warrant at a law firm for documents that attorneys for potential, unindicted defendants contended were protected as attorney-client privileged. What bothers me is that the decision is only eight pages long and does not mention the circumstances under which the warrant was granted, and whether or not the warrant was specifically limited to these documents. The decision states that when the warrant was executed, the firm that had the documents sealed them and turned them over to a special master. What it does not mention is who the people were executing the warrant, if they first had the opportunity to go through files on other cases, or if they had to see portions of the files relating to the clients in this case that were unarguably protected. Arguably, they could have had to look at every piece of paper in the firm to see whether or not those documents were the documents they were looking for. I’m kind of astounded to report this decision, but the Third Appellate District (Sacramento), in Home Insurance Company v. Zurich Insurance Company (2002) C036889, is saying that it is okay for an attorney not to accurately represent available insurance coverage in a mediation. The misrepresentation is protected by litigation privilege. If the representation is fraudulent, it is an intrinsic fraud. Extrinsic fraud would be impermissible. (See below for a discussion of the difference between the two.) Holding Since any such statement is absolutely privileged under the litigation privilege of Civil Code section 47, subdivision (b), it will not support a direct fraud action for damages. In addition, such a misrepresentation constitutes intrinsic, not extrinsic, fraud and provides no basis for equitable relief. Comments on Application According to the Court, the true state of available insurance coverage should have been discovered during the discovery process. If the discovery responses detailing available insurance were inadequate, then the parties should have conducted additional discovery. So, here’s a suggestion for discovery. The Judicial Counsel Form Interrogatories on Insurance, No. 4.1 and 4.2, cover the insurance issue really well. Before mediation, make sure that you have complete, verified responses to these interrogatories. There are remedies available if discovery responses are not accurate. Discussion of Litigation Privilege Under Civil Code section 47, subdivision (b), “A privileged publication or broadcast is one made: . . . (b) In any . . . judicial proceeding, . . .” “Despite its explicit wording, the privilege described by section 47(b) has been given expansive application by California courts. Although originally enacted with reference to defamation actions alone, the privilege has been extended to any communication, whether or not it is a publication, and to all torts other than malicious prosecution. Thus, the privilege has been applied to suits for fraud, negligence and negligent misrepresentation, and interference with contract. Any doubt as to whether the privilege applies is resolved in favor of applying it. The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. Where the insurer provides a defense for a party, the realities of the insurer’s role in litigation dictate that the insurer be treated as an authorized party for purposes of the litigation privilege. Extrinsic v. Intrinsic Fraud Extrinsic Fraud is extrinsic where the defrauded party was deprived of the opportunity to present his or her claim or defense to the court, that is, where he or she was kept in ignorance or in some other manner, other than his or her own conduct, fraudulently prevented from fully participating in the proceeding. Intrinsic Any fraud is intrinsic if a party has been given notice of the action and has not been prevented from participating therein, that is, if he or she had the opportunity to present his or her case and to protect himself or herself from any mistake or fraud of his or her adversary, but unreasonably neglected to do so. When a claim of fraud goes to an issue involving the merits of the prior proceeding which the moving party should have guarded against at that time, or if the moving party was guilty of negligence in failing to prevent the fraud or mistake or in contributing thereto, or failed to take advantage of liberal discovery policies to fully investigate his or her claim, any fraud is intrinsic fraud. Generally, the introduction of perjured testimony or false documents, or the concealment or suppression of material evidence is deemed intrinsic fraud. Facts A driver of a car insured by Maryland Casualty with a policy limit of $500,000 per accident, rear-ended another car. That car was insured by Home, also with a policy limit of $500,000 per accident. Maryland (which was acquired by Zurich) assumed the defense of the driver of the first car and settled with the drivers of the second car for $15,000 and executed a release, even though their damages were much more than $15,000. That was because Maryland had told Home that coverage under the policy was only $15,000. The drivers of the second car went to arbitration with Home under the underinsured motorists provisions of the Home policy and were awarded over $200,000. When Home discovered the representations made by counsel retained by Zurich on behalf of the driver of the first car were false, Home sued Zurich to set aside the $15,000, for fraud, equitable relief, and subrogation. The full text of the decision can be read at http://www.courtinfo.ca.gov/opinions/documents/C036889.DOC. Kalaba v. Gray (2002) B148401 - EXPERT WITNESS DESIGNATION - TREATING PHYSICIAN This case is going to be helpful for those of you handling personal injury actions (yes, including mold cases) and medical malpractice cases. In Kalaba v. Gray (2002) B148401, the Division One of the Second Appellate District (Los Angeles) held that in order for a Plaintiff to designate a treating physician as an expert, the treating physician must be identified by name and address. Designating “all past or present examining and/or treating physicians” is not an effective expert designation, because that does not give the opposing party enough information to take those depositions. Holding An expert designation of retained experts must be accompanied by the "expert witness declaration" described in Code of Civil Procedure section 2034, subdivision (f), no expert declaration is required for a treating physician who will be called to testify at trial as an expert witness. The transformation from treating physician to expert does not occur unless the treating physician is identified by name and address in the proponent's designation, and it is not enough that a plaintiff has "designated" as experts "all past or present examining and/or treating physicians." Discussion of 2034 Under section 2034, subdivision (a), any party may demand the exchange of expert witness information. In response, a party may provide either a "list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial," or a "statement that the party does not presently intend to offer the testimony of any expert witness." (§ 2034, subd. (f)(1)(A), (B).) If a designated expert has been retained for the purpose of forming and expressing an expert opinion at trial, the designation must also include or be accompanied by a declaration signed by the attorney for the party designating the expert and setting forth a brief narrative statement of the expert's qualifications, the general substance of the testimony the expert is expected to give, a representation that the expert will be sufficiently familiar with the pending action to submit to a deposition, and a statement of the expert's hourly or daily fee. (§ 2034, subd. (f)(2)(A)-(E).) Subdivision (j) of section 2034 provides that, except when a motion for relief has been granted, and on objection of any party who has himself timely complied with the statute, "the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: (1) List that witness as an expert (2) Submit an expert witness declaration. (3) Produce reports and writings of expert witnesses . . . . (4) Make that expert available for a deposition. . . ." The full text of the decision is available at http://www.courtinfo.ca.gov/opinions/documents/B148401.DOC. Katelaris v. County of Orange (2001) G025177 The Court found that the statement "I caused to be prepared and mailed . . ." in a declaration regarding service of process, together with a statement about familiarity with a firm's mailing practice of depositing mail the day it was dated, was sufficient personal knowledge of service. Rodas v. Spiegel (2001) B141290 EASING EXPERT'S CONCERNS: Communication by contractor/expert made in judicial or quasi-judicial proceeding is privileged and protected, even if incorrect or false, as long as it is made without malice This malicious prosecution action was bought by a flooring contractor against someone that evaluated damaged flooring installed by that flooring contractor, and came to the wrong conclusion about the cause of that damage. The Second Appellate District, Division One (Los Angeles) held that a report and testimony provided by a contractor retained by an insurance company to determine the cause of damage, which was provided to the Contractor's State License Board investigating a complaint, is absolutely privileged under Civil Code Section 47. Civil Code Section 47 (http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=5291617714+0+0+0&WAISaction=retrieve) protects communications in judicial and legislative proceedings, but not false communications made with malice. In this case, the communications by the defendant were incorrect and false, but unintentionally so. Facts Plaintiff Rodas installed hardwood floors in a two story home. Farmers' Insurance insured the home. About a month after installation of the floor, a roof leak occurred. The homeowner filed a claim for water damage to the floor caused by a roof leak. The homeowners' insurer, Farmers, paid for damage to the second floor but not the first. The homeowner then complained about the Plaintiff's installation to the CSLB. In 1997, Farmers hired defendant Spiegel to inspect the home. The homeowner and Farmers did not tell Spiegel about the water damage. Spiegel evaluated the flooring and determined that problems with the flooring were caused by a lack of expansion space at the walls during installation, combined with an insufficient acclimation period before the floor was sanded and finished. Spiegal prepared a cost estimate of $7853.88, which included removing baseboards, sanding, and refinishing. Two months later, at Farmers' request, Spiegel prepared a bid of $43,758.87, which was the cost of moving furniture out, demolition of the floor, and installation of the new floor. Spiegel's assessment of the damage and first bid were sent to the CSLB. Ritzenthaler v. Fireside Thrift (2001) C028640 - Make Sure §998 Offers Include Attorneys' Fees This case involves a California Code of Civil Procedure §998 offer made by Defendants and accepted by Plaintiffs. The §998 offer did not address attorneys' fees. The decision has a discussion of why the Defendants thought their offer included attorneys' fees, and the Plaintiffs did not, and why the Appellate Court agreed with Plaintiffs. The defendants ended up paying attorneys' fees four times the settlement amount, and had to pay the Plaintiffs' costs on appeal. The full text of the decision can be viewed at http://www.courtinfo.ca.gov/opinions/documents/C038640.PDF. The moral of the story is this: if you are making a §998 offer, make sure it expressly includes attorneys fees. If you are responding to a §998 offer that doesn't expressly include attorneys' fees, you might want to clarify the offer. If you have already accepted a §998 offer that didn't include attorneys' fees, you might have more to recover . . . Stephens v. Superior Court of San Diego (Lawrence John Stephens Trust) (2002) D038328 - PEREMPTORY CHALLENGE OF A JUDGE Division One of the Fourth Appellate District (San Diego) has just made it harder for those of us that often represent parties that appear in a case after it has been going on for some time (a common occurrence in construction defect and other complex litigation) to peremptorily challenge a judge. In Stephens v. Superior Court of San Diego (Lawrence John Stephens Trust) (2002) D038328, held that if a judge has presided over a hearing, proceeding or motion that did involve a determination of contested fact issues relating to the merits, a subsequent peremptory challenge motion is precluded as untimely, even if it is filed by a party that just appeared. Discussion of 170.6 Section 170.6 permits a party to an action or proceeding to disqualify a judge for prejudice based on a sworn statement, without having to establish the prejudice as a fact to the satisfaction of a judicial body. If a peremptory challenge motion in proper form is timely filed under section 170.6, the court must accept it without further inquiry. Section 170.6, subdivision (2) provides in part: "If [a peremptory challenge motion is] directed to the trial of a cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance." Section 170.6, subdivision (2) also provides: "The fact that a judge . . . has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the [peremptory challenge] motion provided for herein at the time and in the manner hereinbefore provided." Section 170.6, subdivision (2) additionally provides: "In no event shall any judge, court commissioner, or referee entertain the motion if it be made after the drawing of the name of the first juror, . . . or after trial of the cause has otherwise commenced." Although section 170.6 does not expressly so provide, it follows that, since the peremptory challenge must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings. This is a trust case, so I am not going to summarize the facts. However, The full text of this decision can be viewed at http://www.courtinfo.ca.gov/opinions/documents/D038328.PDF.
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Copyright 2000-2002, The Law Offices of Cynthia Coulter Mulvihill, APC
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