Not To Be Published (03/05/24)

Tip Summary:?

-- New evidence would have defeated summary judgment, but the need for discovery was not supported by a declaration of diligence.

-- Does 998 cost-shifting apply to settlements? A three-way split?.

-- New Cal.App.Law .Pod episode?w/?Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases.

Dear Colleagues:

Each week, I look for cases presenting a likelihood to shock, surprise, puzzle, inform, anger, or elate. The summaries are mine, the reactions are yours. If you would like to share your reactions, or provide a tip, email me at [email protected] . And I am always happy to talk about these kinds of issues in your cases.

Tim Kowal

New evidence would have defeated summary judgment, but the need for discovery was not supported by a declaration of diligence

When opposing summary judgment, an important tool is to file a declaration explaining that you need additional time for discovery. The plaintiff in Gomez v. City of Rialto Police Dep't (D4d1 Feb. 29, 2024 No. D083074) [nonpub. opn.], had the right idea, but did not comply with the requirement to file a declaration with a showing of diligence.

The plaintiff was injured when a SWAT team driver collided with him en route to a bank robbery. The defendants moved for summary judgment on grounds of immunity and reasonable care, and the trial court granted the motion.

But after filing his opposition, the plaintiff took the deposition of another officer who testified that the defendant driver had not exercised reasonable care, creating a triable issue. So the plaintiff moved for both reconsideration and new trial.

While agreeing that this new evidence did create a triable issue, the trial court ruled that the plaintiff, in gathering this new evidence, had failed to exercise diligence. After all, the plaintiff had waited until after filing his opposition to take the deposition. But in a self-contradictory ruling, the trial court concluded the lack of diligence, while requiring denial of the motion for reconsideration, did not bar granting new trial, which the court did.

The Court of Appeal reversed. The trial court was correct that the plaintiff had not been diligent. And that finding required denying the motion for new trial.

Even assuming the new evidence required more time to discovery, the plaintiff failed to raise that issue. He made the request under section 437c, subdivision (h), in his opposition to summary judgment. That’s the wrong way. He needed to have filed a declaration explaining why the alleged discovery issues could not have been resolved sooner.

Making a section 437c(h) argument in the opposition does not suffice. You need a declaration of diligence.

This is a summary. Read the full article at the?KowalLawGroup.com ?blog here .

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/ .

Does 998 cost-shifting apply to settlements? A three-way split?

The parties’ settlement in the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884) was less than defendant Fiat-Chrysler’s Code of Civil Procedure section 998 ?offer. So Fiat-Chrysler said that means all plaintiff’s post-offer fees and costs are unrecoverable. But the trial court disagreed. After all, Fiat-Chrysler did not obtain any “judgment or award,” the language used in the statute. So section 998 simply does not apply. Right?

Wrong, said the Court of Appeal, reversing in a published opinion. Contrary to the plaintiff’s textual interpretation that “judgment or award” does not mean settlement, the court concluded that “a plain reading” yields just the opposite conclusion that the “more favorable judgment or award” language merely refers to a more favorable “terminat[ion].”

To support this interpretation, the court cited Madrigal v. Hyundai Motor America?(2023). But the Supreme Court has granted review in Madrigal to decide the question: “Do Code of Civil Procedure section 998's cost-shifting provisions apply if the parties ultimately negotiate a pre-trial settlement?”

Even though the Supreme Court found this statutory question worth reviewing, the Court of Appeal boldly concluded: “we find no ambiguity in the relevant terms of?section 998” that it does, definitively, apply to settlements. The court thus declined to consider legislative history on the point.

Dissenting, Justice Viramontes would have agreed with the trial court and the plaintiff that post-offer cost-shifting under 998 does not apply when the litigation ends in settlement. Justice Viramontes concluded that 998 is ambiguous whether it applies to settlements, but that after reviewing the legislative history—which the majority had failed to consider—the question should be answered in the negative and that 998 does not apply to settlements.

Comment

I always find it curious when a panel concludes that a point is “unambiguous” when a member of the very panel disagrees. If you cannot even command agreement among the court on such a bold holding, how does the court expect the parties and the public to accept that holding?

Expect a petition for review, and a likely grant-and-hold while the Supreme Court decides the underlying question in the Madrigal case.

This is a summary. Read the full article at the?KowalLawGroup.com ?blog here .

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/ .

Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration:

• $50k sanctions against appellant for blowing appellate procedure.
• Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal’s hint, so writ issued. (But the trial judge was right to let the writ issue.)
• Anti-SLAPPs don’t require a line-by-line list of allegations like regular strike motions. But there’s a split on this.
• Do you need appellate specialization credits? Maybe not as many as you think if you use Lisa Perrochet’s tip.

We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case.

Listen to the podcast here .

Video clips from the podcast are available here .

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

_______________________

I am always happy to talk with you about these kinds of issues in your cases.

-Tim

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal . He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com , and posts regular updates of appellate news and tips for trial attorneys at KowalLawGroup.com . Contact Tim at [email protected] or (949) 676-9989.

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