The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Rear-End Collision Presumption to be Further Defined by Florida Supreme Court

By on Posted in Florida

In the blog posting dated March 25, 2011, the author discussed the Florida Supreme Court’s review of Cevallos v. Rideout, No. SC09-2238, where the Court will determine how, or if, the rebuttable presumption that a rear-driver was the sole, proximate cause of a rear-end collision applies when the rear-driver was the plaintiff. No decision has been released yet. However, the Florida Supreme Court may further clarify the scope of the presumption in Birge v. Charron, No. SC10-1755 (review granted May 13, 2011), which was the basis for the supreme court’s conflict review of Cevallos. See Charron v. Birge, 37 So. 3d 292 (Fla. 5th DCA 2010). Birge presents the additional issue of whether the rear-end collision presumption applies where a passenger in the following vehicle sues the lead driver for negligence. The supreme court will not hold oral argument on this new case.

The Charron court held that the presumption does not apply when a rear-vehicle passenger sues the lead driver for his negligence. The district court’s succinct reasoning was grounded on principles of contributory negligence; specifically, even under Florida’s now defunct contributory negligence rule, a passenger in the rear vehicle was entitled to pursue all potential tortfeasors, including the forward drivers, in a rear-end collision. 

The Charron decision on this point, though, appears to conflict with other district court decisions. For example, the Fourth District in Marcellus v. Cronan, 963 So. 2d 364 (Fla. 4th DCA 2007), held that the passenger in a lead vehicle who sued the driver of a rear vehicle could not avail herself of the presumption because the lead vehicle may have been improperly parked or stopped on shoulder of roadway at time of accident. To the same effect is the decision in Keyser v. Brunette, 188 So. 2d 840 (Fla. 2d DCA 1966), where the Second District held that the plaintiff, who was passenger in a vehicle struck by the defendant, could not rely on the presumption because the circumstances of the accident “clearly dissipated” it. Id. at 841. On the other hand, in Kimenker v. Greater Miami Car Rental, Inc., 115 So. 2d 191 (Fla. 3d DCA 1959), the Third District held that plaintiffs, who were passengers in a vehicle struck from behind by defendant, were entitled to a directed verdict on liability based on the presumption which the defendant had not rebutted with “substantial evidence.” Id. at 192.

Charron seems to be at odds with Marcellus, Keyser and Kimenker. If a rear-vehicle passenger is immune from the presumption when a plaintiff (i.e., he or she should not be penalized by the driver’s negligence), then it would seem unfair to prevent a lead-vehicle passenger from asserting the presumption by virtue of the lead driver’s negligence.

The Appellate Strategist is currently tracking the status of this case and provides periodic updates on the link to the pending Florida Supreme Court cases. Once a decision is released, it will be linked there.

Is Texas Going Federal? Statutory Changes Erode The Distinctiveness of Texas Practice

By on Posted in Texas

The Texas legislature has recently passed civil justice reform legislation. While most of the publicity concerning the legislation focused on the “loser pays” provisions, other changes also deserve note.

The new statutes permit an interlocutory appeal of a ruling on a controlling legal issue where such an appeal is approved by the trial court and accepted by the appellate court. The procedure is essentially the same as in federal cases. Texas previously allowed such interlocutory appeals only where all the parties agreed to appellate jurisdiction. This greatly limited the number and effectiveness of interlocutory appeals.

The legislature also directed the Texas Supreme Court to enact rules to implement a motion-to-dismiss practice. Until now, Texas did not have an efficient mechanism for attacking substantive deficiencies in the pleading. Apparently, the legislature contemplates a procedure similar to Federal Rule of Civil Procedure 12. The introduction of the motion to dismiss practice represents a radical departure for Texas practice.

These changes continue a trend in Texas law. Texas law is increasingly becoming “federalized.” The features that make Texas law “unique” or “quirky” or “loco” (depending on one’s perspective) are gradually being eliminated.

California Supreme Court Short List Profiles: Stanford Law Professor Mariano-Florentino Cuellar

By on Posted in California

Appellate Strategist’s survey of potential nominees to the California Supreme Court  begins with Mariano-Florentino Cuellar. Cuellar graduated from Calexico High School in Calexico, California. After earning a bachelor’s degree from Harvard in 3 years (magna cum laude, 1993), he received a Master’s degree in political science from Stanford in 1996, followed by a law degree from Yale in 1997, and a Ph.D. from Stanford in 2000. He then served as law clerk to Chief Judge Mary M. Schroeder of the United States Court of Appeals for the Ninth Circuit. 

Since the culmination of his clerkship in 2001, Cuellar has been a professor at Stanford Law School, first as an Assistant/Associate Professor and then, since June 2007, as a Full Professor and Deane F. Johnson Faculty Scholar. According to his faculty biography, his work at Stanford involves “the intersection of law, public policy, and political science.” His courses deal with issues of administrative law, regulation and bureaucracy, executive power, and national security. 

Professor Cuellar’s tenure at Stanford has included governmental, as well as academic, endeavors. In fact, even before he assumed his faculty position at Stanford, he interrupted his Ph.D. program to serve as Senior Advisor to the Under Secretary (Enforcement) of the Treasury from 1997 to 1999, in which role he focused on financial crime enforcement, terrorism financing countermeasures, immigration, and border security. In 2008 and 2009, he served as Co-Chair of the Immigration Policy Working Group for the Obama-Biden Transition Project, where he worked to formulate policies on immigration, borders, and refugees. In 2009 and 2010, he served as Special Assistant to the President for Justice and Regulatory Policy, in which role he led the White House Domestic Policy Council’s work on criminal justice and drug policy; civil rights and liberties; immigration, borders, and refugees; public health and safety; rural development and agriculture policy; and regulatory reform.

Beyond Stanford, Professor Cuellar is associated with the Council on Foreign Relations, the American Bar Association, the American Law Institute, the American Constitution Society, the La Raza Lawyers’ Association of California, and the National Hispanic Bar Association, among others. He is married to former Santa Clara County Superior Court Judge Lucy H. Koh, who is now a federal district court judge for the Northern District of California pursuant to an appointment by President Obama.

Because Cuellar has not served on the bench, his views on topics that might come before the Court must be gleaned from his writings and appearances in the media. A brief sampling of his academic writing is heavy on federal matters:

  • Mariano-Florentino Cuellar, The Political Economies of Criminal Justice, 75 U. Chi. L. Rev. 941 (2008) (responding to the proposition that politicians increasingly govern by framing social policy choices as criminal justice problems, and concluding that “reshaping the [crime-governance connection] to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration.”)
  • Mariano-Florentino Cuellar, Auditing Executive Discretion, 82 Notre Dame L. Rev. 227 (2006) (proposing an audit framework similar to “sample adjudication of class action” in lieu of the deferential or non-existent judicial review of executive decision-making and concluding “(1) Judicial review fails to constrain a broad range of discretionary executive decisions subject to mistakes or malfeasance. (2) The limitations of traditional judicial review do not imply that discretionary executive branch decisions should be immune from some form of review. (3) Arguments for broad executive discretion are often radically underdeveloped and fail to withstand scrutiny.”)
  • Mariano-Florentino Cuellar, The International Criminal Court and the Political Economy of Antitreaty Discourse, 55 Stanford L. Rev. 1597 (May 2003) (arguing that the United States objects to the ICC on “process-oriented” grounds because a “focus on procedure sounds marginally more principled to international audiences than a brute realist assertion that American interests are best served by keeping unfettered control of military decisions.” “Yet this comes with costs: It elides the debate over the value of the brute realist position that American military power should be subject to few meaningful constraints and instead makes it look like the most important question is about the procedural shortcomings of a court that is precisely meant to address the arbitrariness in international criminal justice that critics use to assail it.”)

Professor Cuellar’s appearances in the media have often revolved around his role in shaping the Obama Administration’s immigration policy. His appointment to President Obama’s Immigration Policy Working Group was interpreted by experts as confirmation that President Obama was committed to comprehensive immigration reform.  Moreover, both the National Council of La Raza and the League of United Latin American Citizens greeted Professor Cuellar’s appointment with approval.

Though economic factors have put the immigration debate on the back burner, President Obama’s recent attempt to jump-start the issue suggests that his need for Professor Cuellar’s services may become more pressing in the near future. Whether that impacts Governor Brown’s appointment, or Professor Cuellar’s willingness to serve, remains to be seen.

Four New Civil Opinions Coming on Thursday at the Illinois Supreme Court

By Kirk Jenkins on Posted in Illinois

 The Illinois Supreme Court has announced that on the morning of Thursday, May 19th, it will file opinions in four civil cases (pdf):

  • General Motors Corporation v. Pappas, No. 108893— (1) Does the 2005 amendment to the Property Tax Code, 35 ILCS 200/23-20, providing for the payment of interest on property tax refunds at the lower of 5% or the percentage increase in the urban CPI for the previous year, apply prospectively only? (2) Did trial court retain jurisdiction to grant judgment interest after the notice of appeal was filed? See Taxation.
     
  • O’Brien v. O’Brien, No. 109039 — (1) Does the standard set in 735 ILCS 5/2-1101(a)(3) for a motion for substitution of a judge for cause, which requires a showing of actual prejudice, survive the due process standard set forth in Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009)? (2) If so, where a party alleges that a judge has had ex parte communications with a party, does the statutory standard apply, or is the objective appearance of impropriety standard set forth in Rule 63(c)(1) of the Judicial Code applicable? See Civil Procedure.
     
  • The Board of Education of Auburn Community Unit School District No. 10 v. The Illinois Department of Revenue, No. 110395 & 110422 — Does the Property Tax Extension Limitation Law ("PTELL") apply to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL? See Taxation.
     
  • Bell v. Hutsell – No. 110724 — (1) Where defendants did not personally furnish alcoholic beverages, is liability for breach of a voluntary undertaking to monitor and inspect barred by the bar on civil social host liability? (2) Is there a private right of action under the Liquor Control Act for permitting one’s minor child or his or her invitees to possess, distribute or consume alcoholic beverages? See Tort Law.

 

Against “Rough Justice” Part One: The Fidelity Imperative

By on Posted in Class Actions

In his recent article in the online magazine, Slate, Richard Thompson Ford discusses the key class action case, Wal-Mart v. Dukes, currently pending before the Supreme Court. Ford notes some of the problems of handling such an enormous number of claims as class actions. Under the Dukes trial plan, each class member’s entitlement to back pay will be determined by a mathematical model, without permitting Wal-Mart to challenge the merits of a particular class member’s claim.

Ford is okay with this because, in his view, “rough justice is better than no justice at all.” His rationale is revealing. He notes that proving individual discrimination is difficult and that “even if the statistics prove that Wal-Mart discriminated against a lot of women, very few would be able to prove they were one of them.”

Ford’s concern for “rough justice” is typical of advocates for procedures that aggregate many claims together for a single adjudication. Generally, these advocates worry about “false negatives” in civil litigation—the risk that a wrong will go unpunished rather than false positives—the risk that an innocent party will be forced to pay. While advocates of “rough justice” are right to worry that procedures should not be so cumbersome as to preclude legitimate claims, their proposed remedy is worse than the disease for several reasons. This post explores one of those reasons. Other reasons will addressed in future posts.

Ford’s concern that many women would be unable to prove a claim gives away the game. He advocates the class action approach not simply because it deals with numerous claims more efficiently, but because it allows persons to recover as part of an aggregated claim who would not have been able to recover as an individual claimant. It allows losers to become winners, not because the merits of the individual cases require that result but because weaknesses in individual claims are obscured when the dispute is litigated on a mass basis.

Ford’s argument is not really about class actions at all. His “rough justice” position ultimately boils down to a preference that a member of a group that has experienced discrimination should be permitted to recover, even if the particular individual cannot show that she has been affected by that discrimination.

Whatever the merits of this view, it is simply not the law. To obtain money damages, a plaintiff must show that she has been personally injured. Converting a case to a class action should not be permitted to change this result. The Rules Enabling Act prescribes that the rules of procedure are not to be used to alter a party’s substantive rights.

Procedural devices such as class actions are meant to implement the law more efficiently, not to change what a claimant must establish to win the case. Hence, the American Law Institute’s Principles of Aggregate Litigation speaks of the essential requirement of “fidelity” in all forms of aggregate litigation. Aggregation of claims must be used to implement the law faithfully, not to alter it. Indeed, to use class procedures to change the law is undemocratic. It alters the policy choice enacted by Congress when it restricted the back pay remedy to those who had personally been victims of discrimination.

It’s tempting to use techniques such as class actions as a kind of a short cut to justice. But too often such short cuts never reach the intended destination. Sometimes they take you places you never wanted to go.

Illinois Supreme Court Sets Civil Argument Schedule for May

By Kirk Jenkins on Posted in Illinois

On Friday the Illinois Supreme Court published its Call of the Docket [pdf] for the May term, and the Court will hear oral argument in five civil cases. The cases, with the issue or issues presented in each, are:

May 11:

Palm v. 2800 Lake Shore Drive Condominium Association,No. 110505 – Are the provisions of the Chicago Condominium Ordinance giving the right to compel production of documents, and authorizing interim awards of attorneys’ fees, preempted by purportedly conflicting state law? See Civil Procedure.

May 17:

Sierra Club v. Illinois Pollution Control Board, No. 110882 – (1) Does a petitioner in an individual adjusted standard proceeding before the Illinois Pollution Control Board have a burden of proof with respect to the standards set forth in Section 27(a) of the Illinois Environmental Protection Act? (2) Must the Board make written findings or identify substantive evidence supporting its resolution of the Section 27(a) factors in such a proceeding? (3) Do environmental activist groups have standing to seek judicial review of the Board’s decision in an individual adjusted standard proceeding? See Government Law.

Petersen v. Petersen, No. 110984 – Where a judgment of marital dissolution, ordering the payment of child support, expressly reserves the issue of each party’s obligation to contribute to the college or other education expenses of the parties’ children, is a subsequent order allocating such expenses a "modification" of the child support order within the meaning of the Marriage and Dissolution of Marriage Act, 750 ILCS 5/510, such that only sums incurred on the notice date of the petition and afterwards may be awarded? See Domestic Relations.

City of Chicago v. Stubhub! Incorporated, No. 111127 – May municipalities such as the City of Chicago require electronic intermediary services to collect and remit amusement taxes on resold tickets? (Certified by the United States Court of Appeals for the Seventh Circuit, Case No. 09-3432, 624 F.3d 363.

Wirtz v. Quinn, No. 111903 – Does Public Act 96-34 violate the single subject rule of the Illinois Constitution?  See Government Law.

Supreme Court Says Arbitration Agreements Can Derail Class Actions

By Angelo Carosio on Posted in Class Actions

In a 5-4 decision, the U.S. Supreme Court has reaffirmed the right of businesses to compel arbitration of consumer complaints, and to block class action litigation through the enforcement of individual arbitration agreements. In so holding, the Court invalidated the prior California Supreme Court rule in Discover Bank v. Superior Court, 36 Cal.4th 148 (2005) that classifies most collective-arbitration waivers in consumer contracts as unconscionable.  The Court held that the Discover Bank rule was preempted by the Federal Arbitration Act. The High Court’s decision may pave the way for businesses to insist on including arbitration agreements in individual consumer service contracts as a means of derailing class action lawsuits.

The case, AT&T Mobility LLC v. Concepcion, 09-893, arose out of the plaintiffs’ purchase of AT&T cellular phone service, which was advertised as including free phones with the signing of a service contract. While the plaintiffs were not charged for the phones, they were charged sales tax based on the phones’ retail value. The plaintiffs brought a complaint against AT&T in the U.S. District Court for the Southern District of California, alleging false advertising and fraud, and the case was consolidated with a putative class action. AT&T moved to compel arbitration under the terms of its contract with the plaintiffs, which provided for arbitration of all disputes between the parties, and required that claims be brought in the parties’ “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.”

The terms of the AT&T arbitration agreement actually appeared quite favorable to the consumer as described by the Court. (See Slip Op., p.2.) The terms required that AT&T pay all costs for non-frivolous claims; that arbitration take place in the county where the customer is billed; that arbitration of smaller claims may be conducted at the election of the consumer in person, by phone, or by submission; that either party may bring a small claims action in lieu of arbitration; that AT&T could not seek attorney’s fees; and that should the consumer receive an arbitration award greater than AT&T’s last written settlement offer, AT&T would be required to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.

Though the District Court noted the favorability to the plaintiffs of the arbitration agreement, it nevertheless followed the rule of Discover Bank. The Ninth Circuit affirmed, finding the FAA did not preempt the Discover Bank rule. In reversing the decision of the Ninth Circuit, Justice Scalia, writing for the majority, held that the FAA preempts California’s Discover Bank rule because that rule “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  

In relevant part, the FAA, enacted in 1925, provides that “[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The FAA puts arbitration agreements “on an equal footing with other contracts.” (Slip Op. p.5.) Like other contracts, agreements to arbitrate may be invalidated by generally applicable contract defenses such as fraud, duress, or unconscionability, but may not be invalidated “by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” (Slip Op. p.5.) 

The Court held that the Discover Bank rule was a defense of the latter kind. The rule of Discover Bank was that class-action waivers in consumer contracts affecting disputes of small amounts constitute an attempt by the party with superior bargaining power to exempt itself from its own fraud, and to cheat large numbers of consumers out of individually small sums of money.  They are therefore unconscionable contract terms and unenforceable. The Supreme Court held: “[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” (Slip Op. p.6-7.) “[A] court may not rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what the state legislature cannot.” (Slip Op. p.7.)

“The overarching purpose of the FAA . . . is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamental attributes or arbitration and thus creates a scheme inconsistent with the FAA.” (Slip Op. p.9.) The Court opined that class arbitration, as opposed to bilateral arbitration, “makes the process slower, more costly, and more likely to generate procedural morass than final judgment.” (Slip Op. p.14.) The Court noted that, by their nature, class actions requires elements such as notice to class members and a determination of adequate class representation by the class plaintiff – procedures not suitable for disposition by an arbitrator. (Slip Op. p.15.) Additionally, the Court theorized the absence of an adequate review process makes it more likely errors will go uncorrected. (Slip Op. p.15-16.) Lastly, the Court noted that the favorable terms of the plaintiffs’ arbitration agreement with AT&T make it unlikely that the plaintiffs would be left without adequate redress absent the use of class action litigation.

The Court’s ruling is likely to breathe renewed life into existing arbitration agreements, especially in California, and prompt businesses that regularly enter into service contracts with consumers to include arbitration agreements requiring that claims be brought in the complainant’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.

Preemption, Standing and Vexatious Litigants on California Supreme Court’s May Argument Docket

By on Posted in California, Employment

The California Supreme Court has scheduled oral arguments for May, including four civil cases.

  • Brown v. Mortensen: The Court will address whether the Federal Credit Reporting Act (15 U.S.C. § 1681 et seq.) preempts causes of action for the improper disclosure of medical information under California’s Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.). This case attracted one amicus brief in support of appellants (by the National Association of Consumer Advocates). For more details about Brown, see the B & P 17200/Class Actions/Commercial update page.
  • Save the Plastic Bag Coalition v. City of Manhattan Beach: Does the plaintiff, an association of plastic bag manufacturers, have standing to challenge a local ban on the use of plastic bags? The Court also granted review to address whether the ordinance was properly held invalid for the failure to prepare an environmental impact report. This case has generated significant amicus interest, including four amicus briefs supporting the City’s ordinance (by Heal the Bay, Manhattan Beach Residents Association, Californians Against Waste, and [jointly] the League of California Cities and California State Association of Counties) and one supporting the plastic bag manufacturers (by the Pacific Legal Foundation). For more details about Save the Plastic Bag Coalition, see the Environmental update page.
  • Shalant v. Girardi: If a vexatious litigant subject to a prefiling order files a lawsuit while represented by counsel, may the litigant proceed in propria persona without first obtaining the approval of the presiding judge under C.C.P.§ 391.7 should counsel later withdraw? The Court of Appeal thought so, reversing the trial court’s dismissal. This case attracted one amicus brief supporting the plaintiff vexatious litigant (by the Los Angeles Society For The Prevention Of Cruelty To Animals). For more details about Shalant, see the Attorney-Related update page.
  • In re K.C.: What injury is needed for a parent to have standing to contest the denial of a petition to place his child with the child’s grandparents? This case attracted one amicus brief in favor of the Kings County Human Services Agency (by the California State Association of Counties). For more details about In Re K, see the Other update page.
     

U.S. Supreme Court Rejects Statistical Significance as Requirement to Plead Materiality

By on Posted in Drug & Device

Matrixx Initiatives, Inc. v. Siracusano (.pdf) was a securities fraud class action where claimants alleged that Matrixx failed to disclose reports of a potential link between its cold medicine, Zicam, and loss of smell. The district court dismissed the claim because the reports lacked statistical significance and, therefore, could not have formed a “material” omission under the Securities Exchange Act. The Ninth Circuit reversed the dismissal.

In a unanimous opinion, authored by Justice Sotomayor, the Supreme Court held that the district erred in employing a statistical significance requirement. Instead, the court should have considered the “total mix” of information available to investors. No single bright-line test of materiality is controlling, and the allegation taken as a whole permitted the inference that the adverse reports could have affected a reasonable investor.

Although the opinion does not concern the admissibility of expert testimony, the Court’s discussion of the reliability of a causation inference in the absence of statistically significant findings will doubtless be cited in future Daubert battles.

Also of general interest is the Court’s explanation of how the facts pleaded met the Twombly plausibility requirements. Indeed, the case may serve as a template for pleading fraud by omission.

California Supreme Court to Address Liability for Residential Parties Serving Alcohol

By on Posted in California

The California Supreme Court has granted review in Ennabe v. Manosa, S189577, in which the Second District Court of Appeal upheld a summary judgment for defendant, who hosted a party at a private residence where alcoholic beverages were available and who charged uninvited party guests an entrance fee of $3 to $5. The Court of Appeal accepted, with little discussion, that the defendant was a “social host” for purposes of Civil Code §1714(c), and hence generally immune from civil liability for furnishing alcoholic beverages both under that provision and under Business and Professions Code §25602. The unanimous panel then held that where drinks were simply available to party guests, once admitted, the host had not sold or caused to be sold an alcoholic beverage under Business and Professions Code §25602.1, and was therefore not civilly liable for damages for admitting to the party an obviously intoxicated minor who, upon leaving the party, drove his car into a pedestrian, another partygoer, killing him. The court further held that, in any case, the defendant was not “required to be licensed” for this party within the meaning of Business and Professions Code §25602.1, giving “no weight” under these facts to a contrary statement in an information guide by the Department of Alcoholic Beverage Control, because it failed to address or cite the controlling statutes.

The California Supreme Court granted review on two issues: 1) whether such a defendant is a “social host” pursuant to Civil Code §1714(c); and, 2) whether the exception to immunity created by Business and Professions Code §25602.1 applies under these facts. The high court had previously noted the first issue, without deciding it, in Cory v. Shierloh (1981) 29 Cal.3d 430, 437. For more details about Ennabe, see the Torts & Products update page.
 

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