Construction defect case demonstrates a “two-fer” on grounds for obtaining review by petition for writ of mandamus

I frequently get calls from prospective clients who are “rarin’ to go” on a writ petition to challenge a trial court ruling that has them outraged but is not immediately appealable. That “rarin’ to go” attitude usually does not last beyond the point where I tell them that more than 90% of writ petitions are summarily dismissed without the petitioner ever being heard on the merits. That news usually significantly diminishes the will to petition the Court of Appeal, even as it intensifies the prospect’s outrage, as the prospect feels aggrieved not just by the trial court ruling but also by the fact that the odds of any recourse are so slim.

That’s because writ review in the Court of Appeal is discretionary. Even before convincing the appellate court the trial court erred, the petitioner must convince the appellate court that its petition should be heard on the merits. One can do this by demonstrating that an appeal after final judgment would afford inadequate relief (Code Civ. Proc., § 1086), that the ruling threatens disclosure of privileged documents (or otherwise rings a bell that cannot be unrung), or that the issue presented is one of first impression on which the trial courts require guidance or which is important to a state industry.

In McMillin Albany LLC v. Superior Court, case no. F069370 (5th Dist., Aug. 27, 2015), the Court of Appeal spells out plainly two reasons it granted review in a construction defect case in which homeowners sued their contractor. The contractor sought a stay of the action until the plaintiffs complied with the prelitigation procedures of the Right to Repair Act (the “Act,” Civ. Code, §§ 895 et seq.), which requires the plaintiffs to “give notice of the claimed defects to the builder and engage in a nonadversarial prelitigation procedure, which affords the builder an opportunity to attempt to repair the defects.” Plaintiffs broke off negotiations regarding a stay, dismissed their statutory cause of action under the Act, and asserted that they were not obligated to comply with the prelitigation procedures of the Act to pursue their remaining common law causes of action. The contractor moved for a stay of proceedings pending compliance with the prelitigation procedures and, when the trial court denied it, petitioned the Court of Appeal for a writ of mandate directing the trial court to vacate its ruling and grant the motion for a stay.

Before holding that the plaintiffs were still required to comply with the Act’s prelitigation procedures despite dismissing their only cause of action asserted under the Act, the court gave a very clear statement of why it granted review on the merits. First, the contractor had “no plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086.) The court points out that if the contractor were forced to wait for a final judgment to challenge the ruling, it would lose the benefits of any stay it was entitled to pending compliance with prelitigation procedures, even if it prevailed on appeal. Second, the issue presented could escape review entirely if not heard in a writ proceeding, despite being “an issue of first impression, which is of interest to builders, home buyers, their attorneys, and others.” Though the court did not mention the fact, two building trade associations submitted Amicus briefs on behalf of the contractor, demonstrating the importance of the issue to a major industry.

Kudos to the court for being so straightforward in explaining why it reviewed the petition on the merits. Too often, writ opinions are ambiguous on the point.

“Octa-Mom” wins one in court

“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v. Superior Court , case no. G042509 (4th Dist. Jan. 8, 2010).

Paul Peterson filed a petition to appoint a guardian to handle financial affairs for the octuplets. (Peterson asserted that his non-profit organization wanted to ensure that financial compensation received from photos or video of the octuplets was preserved for their majority, which explains why no guardianship was sought for the remaining children.) Suleman moved to dismiss, and petitioned for a writ of mandate after the trial court denied her motion. As unsympathetic a person as Suleman may have been in the press, Peterson looks pretty bad, too:

This is an unprecedented, meritless effort by a stranger to a family to seek appointment of a guardian of the estates of the minor children. The petition‟s allegations are insufficient to infringe on a parent‟s civil rights or to rebut the presumption under California law that a parent is competent to manage the finances of his or her children. There is nothing in the petition that shows that the best interests of the children in the management of their finances are not being served by Suleman.

I always liked the joke “It’s on the internet, so it must be true!” Peterson learns that a court petition is not the time to try to take that whimsical expression seriously:

What information do we have before us? Petersen is not a relative under section 1510, subdivision (a). Petersen has never met and never had any contact with Suleman, her children, or any member of her family. All of the information presented in the petition for appointment of a guardian has come from television or the Internet. Petersen has provided no documentary evidence (much less admissible evidence) that raises a reasonable inference of wrongdoing. The information provided can be summed up as follows: Suleman and her children have appeared on television and the Internet, presumably in exchange for money. No evidence of financial mismanagement on the part of Suleman is offered. Petersen admits he does not know whether Suleman has taken the appropriate steps to ensure that 15 percent of each child‟s portion of any earnings has been placed into a [statutorily mandated] Coogan Trust Account.

(My emphasis, footnote omitted.) Not only does Suleman get the guardianship petition dismissed, she also succeeds in stopping an investigation ordered by the trial court into her family’s finances.

The average person following this on the news probably wrote off Suleman’s chances of prevailing. Lawyers not paying close attention may also have rolled their eyes, in light of the overwhelming odds against having a writ petition heard on the merits, let alone winning. However, Suleman presented a statutory interpretation issue of first impression of great importance — who has standing as “another person on behalf of the minor” under Probate Code section 1510, subdivision (a) to bring a guardianship petition — that not only caught the court’s eye, but actually resulted in a win.

Got a stay? Challenge the judge anyway!

Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”  In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case.  No dice.  And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court.

Tri Counties asserted that the the judge should be disqualified for conducting an independent investigation into a factual issue relevant to class certification.  It learned of the investigation from the trial court’s tentative ruling in the class certification motion and, in a supplemental memorandum, urged it as a ground to deny certification.  When the trial court certified the class, Tri Counties sought appellate review of the certification order by petitioning for a writ of mandate, citing the improper investigation as a ground to grant the petition, but did not seek the trial judge’s disualification.  Only after that petition was denied did Tri Counties submit its 170.3 statement of objection, which the trial court struck as untimely.  Tri Counties then filed a writ petition challenging that order.

Tri Counties contended that the stay issued in connection with the first writ petition prevented it from filing its statement of objection until the conclusion of that proceeding.  The court notes, however, that the stay did not take effect until more than three moths after Tri Counties became aware of the improper investigation, leaving it plenty of time to challenge the judge.

The second reason the court gave was more interesting.  It holds that proceedings regarding the qualification of a judge are distinct from the ordinary proceedings, and the stay affects only the latter:

Second, although unnecessary to our conclusion that the statement of objection was untimely, it is our view that petitioner could have filed a statement of objection even while the stay was in effect.  Our general stay of proceedings was obviously directed to the underlying proceedings between the parties to the action (i.e., to the litigation itself), not to questions of the judge’s qualification to preside over those proceedings.  A judge’s qualification to preside as judge in a particular case is foundational to, and hence distinct from, the ordinary proceedings between the parties that would be tried or heard by the judge.  (See § 170.5, subd. (f).)  Because of this basic distinction between a judge’s qualification and the underlying litigation, we do not believe that our stay could reasonably be understood as barring petitioner from promptly filing a statement of objection in the trial court.  We note further that disqualification of the trial judge was not raised in the writ of mandate petition challenging the class certification order, thus the filing of a statement of objection to pursue disqualification would not have interfered with or affected our appellate review of that order.

This is an interesting and important distinction.  It’s also quite interesting that the court went out of its way to discuss it, since it was unnecessary once it found Tri Counties had delayed too long even before the stay went into effect.

An Important Discovery Ruling Overcomes a Deferential Standard of Review

For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile. Not only does it set a high bar for reversal, but it can be very difficult to define within the circumstances of a case. (I’ve written before about the somewhat hazy nature of the “abuse of discretion” standard of review.)

Against this backdrop, Alch v. Superior Court, case no. B203726 (2d Dist. Aug 14, 2008) presents a very interesting discussion of the standard as it introduces its decision reversing the trial court’s refusal to allow discovery (which is not, by the way, immediately appealable, and thus is found in this writ decision).

First, the backdrop of the case:

Television writers filed class action lawsuits against studios, networks, production companies and talent agencies, asserting an industry-wide pattern and practice of age discrimination. The writers served subpoenas on third parties, including the Writers Guild of America, seeking data on Writers Guild members from which they could prepare a statistical analysis to support their claims of age discrimination. A privacy notice was sent to 47,000 Writers Guild members, advising them of their right to object to disclosure of personal information on privacy grounds. Some 7,700 individuals filed objections. The writers moved to overrule the objections. The trial court sustained the objections in their entirety. The writers sought a writ directing the trial court to vacate its order and allow access to certain of the requested information, arguing the information was critical to proving their claims and privacy concerns were minimal. We grant the writ petition.

Before even reaching its analysis, the court of appeal explains why it is able to reverse despite the formidable obstacle usually presented by the abuse of discretion standard applicable to review of orders denying discovery:

We are well aware that a reviewing court may not substitute its opinion for that of the trial court if there is a basis, supported by the evidence, for the trial court’s ruling, and that we may set aside an order denying discovery only if there was no legal justification for the order. (Tien v. Superior Court (2006) 139 Cal.App.4th 528, 535.) We also recognize that the trial court was faced, to some extent, with a moving target: the information initially subpoenaed was more comprehensive – and considerably more sensitive on the privacy scale – than the information the writers requested in their motion to overrule the objections, and the latter, too, was more inclusive than the information ultimately sought when the writers asked for reconsideration. These differences, however, highlight the error in the trial court’s analysis. It used a broad brush to deny the writers access to all data about the objectors out of hand, and wholly failed to consider whether a more nuanced approach to the different categories of data would satisfy the balance that must be struck between privacy interests and a litigant’s need for discovery. (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658 (Valley Bank) [considerations which will affect the exercise of the trial court’s discretion in evaluating privacy claims include the “‘ability of the court to make an alternative order which may grant partial disclosure’”; where possible, “‘courts should impose partial limitations rather than outright denial of discovery’”].)

In short, while the trial court purported to weigh the objectors’ privacy rights against the public interest in pursuing the litigation, it failed to follow the dictates of Valley Bank in doing so. In addition to failing to analyze the different categories of data requested, the court gave short shrift to “the public interest in pursuing [the] litigation.” Indeed, it erroneously stated that the writers, in their brief, had indicated “that they may still be able to put together a meaningful statistical study based upon information from non-objectors.” On the contrary, the writers submitted evidence that no meaningful statistical study could take place if data from the objectors were omitted from it. Under these circumstances, we can reach no other conclusion than that the trial court’s orders denying access to any and all data from the objectors were without legal justification.

(Footnotes omitted.)

I suspect, however, that few litigants will be able to take advantage of Alch in the court of appeal because the only immediate route for review of discovery orders is via writ petition. The odds are greater than 9 in 10 that your writ petition will be denied summarily without reaching the merits.

The real value of Alch will be to trial attorneys trying to convince the trial court in the first instance that denial of discovery would be an abuse of discretion. Because such orders are not immediately reviewable on appeal, there has always been a dearth of appellate discovery rulings for trial lawyers to cite when arguing a motion to compel or a motion for protective order. Alch’s application of Valley Bank may lead to greater uniformity in trial court decisions, or at least greater attention being paid to the “nuance” of the scope of information sought.

Mandate Unavailable to Compel Property Reassessment

In Little v. Los Angeles County Assessment Appeals Boards, case no. B195610 (2d Dist. Sept. 27, 2007), the court of appeal holds that a property owner may not challenge a property assessment by way of petition for writ of mandate under Code of Civil Procedure section 1085.

During the real estate downturn of the 1990s, Little had successfully sought a reduction in the assessment roll base year value for his multi-unit property from $790,000 to $480,000, based on a decline in value. He then sought and obtained a second reduction to $288,000, which increased to $304,000 by 2003 from annual 2 percent increases. When the asessor’s office notified him in 2004 that it was reinstating the assessed value to $480,000, Little filed an application for a change in assessment back to $304,000. He contended that the $480,000 base year value was incorrrect because the assessor mischaracterized the type and size of the units. When that application was denied, Little filed a petition for writ of mandate in the superior court.

The assessor demurred to the petition, contending that because Little had an adequate remedy at law by way of a complaint for refund of property taxes, mandate did not lie. The superior court overruled the demurrer and denied the petition on the merits.

The court of appeal holds that the demurrer should have been sustained:

Little’s petition below sought the issuance of a peremptory writ directing the Assessor to correct the property’s base year value on the assessment roll to the 1996 base year value of $288,000, and to assess the property for 2004, 2005 and all subsequent years based upon the base year value of $288,000. Thus, Little’s petition impermissibly sought to enjoin the collection of future taxes.

California Constitution article 13, section 32, provides: “No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.”

(Emphasis in original.)

Which Bystanders to Personal Injury Can Claim Emotional Distress?

An interesting issue of tort liability is presented by Ra v. Superior Court, case no. B19766 (2d Dist. August 15, 2007).  The opening paragraph of the opinion does such a good job of framing the issue that I quote it in full here:

In Thing v. La Chusa (1989) 48 Cal.3d 644, 667 (Thing), the Supreme Court held only “closely related percipient witnesses” may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specificallylimited recovery to a plaintiff who “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim.” (Id. at p. 668.) Does the requirement of contemporary sensory awareness of the causal connection between the negligent conduct and the resulting injury limit recovery on a bystander claim to a plaintiff who clearly and distinctly perceived the injury being inflicted, or is recovery permitted for a plaintiff who was aware a traumatic event was occurring and believed it “more likely than not” her husband had been injured?

Here, the plaintiff did not visually witness the accident.  She and her husband were in a store when a sign fell on his head.  They were in different parts of the store when she heard a loud crash coming from the area of the store where she knew him to be. 

 The defendant moved for summary adjudication of the bystander claim on the ground that these facts do not satisfy the prerequisites of Thing.  The court granted the motion over plaintiff’s argument that her belief that it was “more probable than not” that her husband had been injured presented a triable issue of fact.

The court denies the writ, finding plaintiff’s belief in her husband’s probable injury is insufficient to satisfy Thing.  Bystanders found to have standing in previous cases despite their lack of visual perception of the accident had a “reasonable certainty” of injury to a close relation because of the nature of their perception, or came upon the scene while the injurious event was still in progress.  Here, plaintiff had only a “more-likely-than-not fear” that her husband had been injured.

 Note that this issue was decided on a writ petition, when it could have been appealed from a subsequent final judgment in the action.  Apparently, the court felt this issue was of such importance that deciding it on a writ petition was appropriate.

 The case also contains two lessons about writ practice.  First, even though only plaintiff’s bystander claim was summarily adjudicated, her husband was a proper party to the petition for writ of mandate because his loss of consortium claim was dependent on the bystander claim, thus satisfying the requirement that he be “beneficially interested” in the order.

 Second, even though the court applied de novo review to the summary adjudication motion, it did not reach one of plaintiff’s argument made in opposition to the motion because she did not raise it in her petition.  Counsel cannot count on de novo review to reach every issue raised below.  If you want the court to consider it, put it in the petition.