Analysis: The Alien Enemies Act permits deportations due to foreign "incursions" and provides jurisdiction while these enemies are within the United States

 

Analysis after the Supreme Court overrules Judge Boasberg and sides with Attorney General Bondi

The United States Supreme Court has vacated an unconstitutional order from trial court judge James Boasberg barring the President of the United States and the Executive Branch from using the Alien Enemies Act (1798) to deport violent aliens, specifically, criminal gang members from Venezuela.  The latest example of gaslighting by our press, reports almost universally described this act as being a "war time" act which, as we shall see, does not comport with the actual language of the Act. The inference is that you are wrong if you support utilization of this Act because we are not currently at "war:" the gaslighting "tell" if that these supposed news stories do not quote any of the language of the Act and most likely no reporter or editor involved in the reporting has even skimmed the Act itself.

 

Briefly, the Supreme Court held it was not proper to Judge-shop and file a challenge to the use of the Alien Enemies Act in the District Court of the District of Columbia. As our prior posts discussed, a sole trial court judge in Federal Court issued a ruling attempting to direct how the executive branch conducted its core business, going so far as to order the direction of planes operated by the Executive Branch.  This was Judge Boasberg, who formerly served on the FISA Court which approved the FBI's secret spying upon this same President of the United States based upon affidavits filed under the supervision of now disgraced former FBI Director James Comey.  (Indeed, even Comey himself has admitted this entire process involved major errors.) These FISA warrants were, in turn, based on a Russia collusion hoax created by, inter alia, the law firm Perkins Coie.  Perkins Coie worked on behalf of Hillary Clinton's Presidential Campaign and paid the research firm Fusion GPS for the infamous "Steele Dossier" manufactured to show that the President was actually an agent of the Russian government.  This hoax and the subsequent Special Counsel investigation of the President were a key part of the "lawfare" campaign designed to stop the American public from electing and re-electing the President.  There is little doubt the case was filed in the DC court so it would be heard by judges of the same predispositions as Judge Boasberg.

 

The Supreme Court, as noted, put an end to this attempt at judge-shopping by ruling the case should instead have been filed in the District where the inmates were held such as, for example, in Texas. The headlines stress the Act as a "wartime" act and ignore the fact the Act applies to both declared wars and where these has been a foreign "incursion."  The text below is from the code found House.gov and key portions are highlighted for emphasis:

 

CHAPTER 3—ALIEN ENEMIES

§21. Restraint, regulation, and removal

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

As to jurisdiction, the Act provides that aliens residing in the United States are entitled to a hearing before deportation and the judiciary may order (or not order) their removal "from the United States," thus limiting this jurisdiction to those aliens within the United States:

§23. Jurisdiction of United States courts and judges

After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

 

The Act also provides such aliens may in fact have time to settle their affairs before deportation, but only if they have not been involved in an actual "hostility" or "crime:"

 

§22. Time allowed to settle affairs and depart

When an alien who becomes liable as an enemy, in the manner prescribed in section 21 of this title, is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native citizen, denizen, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.

The Act further provides a United States Marshall may apprehend the aliens:

§24. Duties of marshals

When an alien enemy is required by the President, or by order of any court, judge, or justice, to depart and to be removed, it shall be the duty of the marshal of the district in which he shall be apprehended to provide therefor and to execute such order in person, or by his deputy or other discreet person to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President, or of the court, judge, or justice ordering the same, as the case may be.

So now that we have quoted each and every word of the Act, you know far more than any of the journalists of commentators in corporate media and may judge for yourself whether their characterization of the Act is biased or not.

 

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Blauser v. Diubin: Whether order is signed or unsigned, appeal must be from final judgment and not "minute order" granting nonsuit

 

Appellate court explains the crucial difference between a minute order and a judgment 

The old maxim holds true:  appealability is jurisdictional, meaning that an appellate court lacks jurisdiction to consider an appeal from a non-appealable order.  In California and most other jurisdictions, an appeal must be taken from a final judgment or an order made appealable by statute.  This is illustrated by the opinion of the Fourth District, Division Three, in Blauser v. Dubin (November 19, 2024) G063715 (https://law.justia.com/cases/california/court-of-appeal/2024/g063715.html).

In one of the typically concise and well-written opinions from the Fourth District, Division Three, the court explained the appellant's opening brief referenced a "judgment of dismissal" despite the fact the trial court adopted the increasingly common practice of not issuing any sort of final judgment.  Rather, the court granted a motion for nonsuit, a motion arguing the claim of one party against another cannot go forward, by way of an unsigned "minute order."   Such are prepared by the Clerk and entered in the record, often without the Judge's signature.

This caught the appellate court's attention, which asked the parties to brief the issue of whether the appeal was proper.  The appellant then obtained a signed copy of the minute order, filing a "notice of entry of judgment" attaching the signed order, and then filing the notice of entry of judgment in the trial and appellate courts.

The appellate court explained this signed minute order did not constitute a final judgment or order appealable by statute:

Though now signed, the minute order is (still) not labeled as a

“judgment” and it (still) does not purport to enter “judgment.” (§ 577.) Nor does it order the “dismissal” of appellant’s first amended complaint (though the cross-complaint was dismissed at the request of respondent). (§ 581d [a written, signed dismissal order “shall constitute” a judgment].)

Orders granting nonsuit motions are not among the appealable orders listed in section 904.1. “Although an order granting a nonsuit is nonappealable, an appeal can be taken from the subsequent judgment of nonsuit.” (4 Cal.Jur.3d (2024) Appellate Review, § 58; see Smith v. Roach (1975) 53 Cal.App.3d 893, 895, fn. 1.) “[I]nsofar as the appeal purports to be from the minute order granting the motion for nonsuit, it is premature and must be dismissed.” (Bauer v. Jackson (1971) 15 Cal.App.3d 358, 363, fn. 1.) (Id., p. 3.)

The Fourth District rejected the argument the a minute order and judgment are "functionally equivalent," noting such an approach would lead to confusion as to what is and is not appealable.  Moreover, the court noted California's Code of Civil Procedure section 581c(c) regarding dismissals contemplates a motion for nonsuit shall be followed by an actual signed judgment. 

The appeal was therefore dismissed without prejudice to be refiled once a final judgment or appealable order had been obtained.

Lessons for practitioners

Even though section 581c(c) provides a motion for nonsuit shall be an "adjudication on the merits," unless there is a judgment as a to particular party, that party may not appeal the granting of the nonsuit.  Alternatively, a signed "order of dismissal" is equivalent to a judgment per Code of Civil Procedure section 581d.  However, an order of dismissal must actually state a party is dismissed and should be entitled an "Order of Dismissal of [name of party]" and make specific reference to section 581d in order to make this crystal clear.

More broadly, for the sake of clarity any "minute order" or other order of the court that a party wishes to appeal should be reduced to a judgment.  Further, this judgment should be signed by the Court and attached to a "notice of entry of judgment" filed with the trial court and served upon all parties, this being crucial because doing so starts the 60-day period in which an opposing party may appeal.  If this notice is not given the other party may have up to 180 days to appeal resulting in a surprise "notice of appeal" once the case has been long-closed.  Of course, in any timely appeal, this "notice of entry of judgment" should be made part of the appellate record.

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Hot topic -- Posting a Bond to Stay Enforcement of Judgment Upon Appeal

Why a Civil Defendant May Need to Post a Bond to Appeal

A certain high-profile defendant has been in the news lately in regards to posting a bond to stay enforcement of a large judgment, so large it is likely (though far from certain) that it will be reduced on appeal.  I will not name the defendant but suffice it to say that the coverage of this issue has evidenced more political bias than understanding of the legal concepts involved.  A review of California law involving appeals and enforcement of judgments may therefore be helpful.

A judgment creditor may generally start enforcing the judgment upon notice of entry of the judgment

The plaintiff or other party with a monetary judgment in their favor becomes the judgment creditor while the party with a monetary judgment against them is a judgment debtor.  Once the Clerk of the Court has "entered" a judgment in the record, said judgment may generally be enforced up to ten years from its date.  Such enforcement may begin immediately unless, for example, the trial court grants a stay or the judgment debtor chooses one of the options below. 

 

As a practical matter, there is usually some delay in enforcement as a judgment creditor should obtain one or more "abstracts of judgment" from the Clerk of the Court in the county where the judgment has been entered.  The creditor must then "record" these in any counties where the debtor wishes to enforce the judgment by, for example, filing a lien.

General Rule: judgments are stayed pending filing a notice of appeal

A defendant in a civil suit generally has 60 days after being given proper notice of entry of judgment to file a notice of appeal. (California Rules of Court, rule 2.)  As an aside, there is a complex series of extensions related to filing post-trial motions such as a motion for a new trial.

Judgments are generally "stayed" upon filing an appeal, meaning they cannot be enforced, but, as discussed below, there are exceptions, the most important involving the enforcement of judgments for sums of money. (Code of Civil Procedure section 916; Code of Civil Procedure section 917.1.)

Exception:  monetary judgments

Crucially, monetary judgments are not automatically stayed pending an appeal. (Code of Civil Procedure section 917.1)  This is for the obvious reason that a judgment debtor would then have an incentive to appeal even if there is no merit to the appeal; such a delay, of course, may make it less likely the judgment creditor will later be able to find the judgment debtor's assets.

There is an exception to this exception, though.  Judgment amounts that are for "costs of suit" only are stayed despite the rule noted above.  If a party makes a successful offer under Code of Civil Procedure section 998, i.e., a reasonable offer to compromise is made and then rejected, the enforcement of costs awarded to a successful offeror under section 998 is stayed upon filing a notice of appeal. (Id.)

How to appeal without paying the judgment creditor 

A judgment debtor is subject to attempts to seize their assets, garnish their wages, or place a lien upon their accounts if the judgment is not stayed pending appeal.  Because it may be difficult to recover funds once paid to the judgment debtor, the judgment creditor should explore the options below to avoid payment of the judgment while the appeal is pending.

1. Posting a bond or undertaking by an "admitted" or "personal" surety

This is most often done by posting a bond by "an admitted surety insurer," meaning a "surety" - someone who will post the bond and then be responsible for payment of the judgment if the appeal is not successful - that is licensed in California. (Id.)  The bond amount would be 150% of the judgment. (Id.)  The additional amount beyond the judgment itself may be necessary to cover the "simple interest" upon the judgment at the annual rate of ten percent.

It goes without saying that an admitted surely will require payment in some percentage of the bond or undertaking to provide this service.

The posting of a bond or undertaking may also be done by a friend or relative, i.e., a "personal surety." (Id.)  The amount posted by the personal surety must be 200% of the judgment. (Id.)  

The requirements for being a personal surety are found in Code of Civil Procedure section 995.510 and include 1) being a resident of California, and 2) having net assets in California that exceed 200% of the judgment.  Neither an attorney nor the "principal," the judgment debtor, may act as a personal surety. (Id.) 

2. Depositing money with the Court

If one cannot obtain a bond or undertaking and nevertheless wishes to appeal, does one have to pay the judgment directly to the creditor to avoid seizure of assets?  The answer is no:  the judgment debtor may deposit money or negotiable securities directly with the Court. (Code of Civil Procedure section 917.1)

The complete text of section 917.1 is quoted below:

917.1. (a) Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following:
(1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action.
(2) Costs awarded pursuant to Section 998 which otherwise would not have been awarded as costs pursuant to Section 1033.5.
(3) Costs awarded pursuant to Section 1141.21 which otherwise would not have been awarded as costs pursuant to Section 1033.5.
(b) The undertaking shall be on condition that if the judgment or order or any part of it is affirmed or the appeal is withdrawn or dismissed, the party ordered to pay shall pay the amount of the judgment or order, or the part of it as to which the judgment or order is affirmed, as entered after the receipt of the remittitur, together with any interest which may have accrued pending the appeal and entry of the remittitur, and costs which may be awarded against the appellant on appeal. This section shall not apply in cases where the money to be paid is in the actual or constructive custody of the court; and such cases shall be governed, instead, by the provisions of Section 917.2. The undertaking shall be for double the amount of the judgment or order unless given by an admitted surety insurer in which event it shall be for one and one-half times the amount of the judgment or order. The liability on the undertaking may be enforced if the party ordered to pay does not make the payment within 30 days after the filing of the remittitur from the reviewing court.
(c) If a surety on the undertaking pays the judgment, either with or without action, after the judgment is affirmed, the surety is substituted to the rights of the creditor and is entitled to control, enforce, and satisfy the judgment, in all respects as if the surety had recovered the judgment.
(d) Costs awarded by the trial court under Chapter 6 (commencing with Section 1021) of Title 14 shall be included in the amount of the judgment or order for the purpose of applying paragraph (1) of subdivision (a) and subdivision (b). However, no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14.

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Attorney disqualification is improper remedy for failure to produce documents and respond to subpoena

The Second District, Division Seven, has ruled that while an attorney who fails to produce documents and/or produce a privilege log may be subject to sanctions, or perhaps even referral to the State Bar, a trial court erred when it instead disqualified said counsel from representing one of the parties. (Sunholm v. Hollywood Press Association (February 27, 2024) B324842.)  This is true even though the document withheld may have contained the other party's privileged information and, further, the to-be disqualified counsel was less than forthright about whether he currently possessed privileged material.

In Sundholdm privileged documents were accidentally filed and served upon counsel for plaintiff, who had sued the Holywood Foreign Press Association after he was expelled.  HFPA mistakenly attached a draft copy of its by-laws to its complaint notwithstanding that these by-laws were marked as attorney-client privileged material.  HFPA made an ex parte application to strike these by-laws from the record, which request was granted.  An amended complaint was then filed with the final version of the by-laws attached, as these did not contain any privileged material.  

Counsel Quinto of One LLP, attorney for plaintiff Sundholm, was then the subject of a motion to disqualify brought by the HFPA after it was alleged that he had, inter alia, 1) kept a copy of the privileged material, and 2) failed to respond to a deposition subpoena to produce documents including the privileged material.  This motion to disqualify of HFPA was made alongside its motion to compel production of the document which Quinto possessed and coyly said might be privileged.  Sundholm then sought to dismiss the remainder of his complaint against HFPA to avoid either motion being granted.  

Wendy W. Y. Chang, Judge presiding of the Superior Court of Los Angeles County, found the court lacked jurisdiction to consider the motion to compel due to the dismissal of the remainder of the complaint. The trial court nonetheless held it could rule upon the motion to disqualify and granted said motion.

The appellate court overturned the trial court’s grant of the motion to disqualify, not because it endorsed Quinto’s conduct, but because such was not the proper remedy for Quinto’s action.  In an opinion written by Justice Feuer, the court held:

We agree with the trial court that Quinto improperly refused to produce documents in response to a subpoena from HFPA seeking HFPA documents in Quinto’s possession that were privileged or to provide a privilege log. But disqualification of an attorney affects a party’s right to counsel of choice, and it should not be used to punish an attorney for improper conduct. Quinto’s conduct could have been addressed by an award of sanctions or, if appropriate, reporting the conduct to the State Bar of California. The drastic remedy of disqualification of counsel is appropriate only where the attorney improperly or inadvertently received information protected by the opposing party’s attorney-client privilege, the information is material to the proceeding, and its use would prejudice the opposing party in the proceeding. Here, there was no showing the HFPA documents would prejudice HFPA in the proceeding. We reverse. (Id., p. 2.)

Key to the court’s finding the trial court erred was the drastic nature of the remedy of disqualification of counsel.  The Second District explained disqualification is appropriate only where the following test is met: 1) opposing counsel improperly or inadvertently receives information protected by the opposing party’s attorney-client privilege, 2) the information is material to the proceeding itself, and 3) use of such by opposing party would result in actual prejudice of party seeking disqualification.  HFPA, however, could not establish it suffered prejudice from the retention of the privileged material given the suit against it was dismissed.

Analysis: mistakes — whether inadvertent or intentional — were made by counsel for both parties

Counsel for HFPA — Robert Ellison— admitted that a draft copy of the by-laws which included attorney-client privileged information was filed with the Court and served on opposing counsel.  Though swiftly corrected, this was a potential breach of the duty of due care owed to the client, necessitating the ex parte application to strike this matter.

At the same time, counsel for Quinto failed to either produce the privileged document or produce a privilege log detailing what document was being withheld.

Unresolved ethical issues, including “back ups” of information which should be "returned"

The Court of Appeal found that because HFPA could not establish prejudice from the retention of the privileged information, it did not need to consider whether Quinto acted unethically.  However, as the Court of Appeal explained at footnote six, the scenario in Sundholm implicates the ethical duty of counsel to disclose and possibly return inadvertently-disclosed privileged material:   

              

Pursuant to State Fund, supra, 70 Cal.App.4th at pages 656 to 657, “When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified. We do, however, hold that whenever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact.” (See Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817-818 [adopting the State Fund holding and extending it to material protected by the work product doctrine].) 

The opinion therefore does not provide sufficient guidance to say with certainty whether or not Quinto acted unethically, instead merely hinting that he may have.  The appellate court also did not discuss the issue of what is to occur after a party notifies the other party it has inadvertently received privileged material.  

In the analog era, of course, the answer was often that the party “returns” the privileged material to the party who inadvertently disclosed such. As California Rules of Professional Responsibility, Rule 4.4, comment [1] states:

[1] If a lawyer determines this rule applies to a transmitted writing,* the lawyer should return the writing* to the sender, seek to reach agreement with the sender regarding the disposition of the writing,* or seek guidance from a tribunal.* (See Rico v. Mitsubishi (2007) 42 Cal.4th 907. . . .

But what does this mean in the digital era?  

Even if a document is “returned” to its sender, it most likely has already been scanned.  Moreover, even if it has ostensibly been “deleted,” a copy of the privileged material may be saved on a local or remote backup server.

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Short take-away: PAGA action cannot be dismissed solely on manageability grounds

 

Short take-away:  Trial courts do not have inherent power to strike PAGA claims because they are supposedly "unmanageable"

The California Supreme Court has resolved a split of authority between appellate districts as to whether a trial court has inherent power to strike a Private Attorney General Act claim on grounds it is not manageable. (Estrada v. Royal Carpet Mills (January 18, 2024) S274340.)   Such PAGA claims are made under the "Labor Code Private Attorneys General Act of 2004," found at Labor Code section 2698, et seq.

Plaintiff Estrada filed suit, asserting Royalty violated Labor Code provisions requiring that it provide required break and rest periods, as well as seeking PAGA penalties for these Labor Code violations.  Plaintiff filed amended complaints realleging the individual claims as a class action.  The trial judge, the Hon. Randall J. Sherman, of the Orange County Superior Cout, held a bench trial as to the issue of individual vis a vis class claims and, though a class had already been certified, issued an order decertifying the class due to inconsistent individual claims, dismissing the PAGA claim, and entering a judgment of dismissal.

The Fourth District, Division Three, reversed the trial court and the Supreme Court granted review.  Chief Justice Guerrero wrote for a unanimous court and explained:

We now conclude that trial courts lack inherent authority to strike PAGA claims on manageability grounds. In reaching this conclusion, we emphasize that trial courts do not generally possess a broad inherent authority to dismiss claims. Nor is it appropriate for trial courts to strike PAGA claims by employing class action manageability requirements. And, while trial courts may use a vast variety of tools to efficiently manage PAGA claims, given the structure and purpose of PAGA, striking such claims due to manageability concerns — even if those claims are complex or time-intensive — is not among the tools trial courts possess. (Id., p. 2; footnote omitted.)

The Supreme Court explained that while trial courts do have inherent authority to establish procedures where no procedure exists, this does not extend to a broad power to dismiss claims.  Estrada  thus quoted from Weiss v. People ex rel. Dept. of Transportation (2020) 9 Cal. 5th 840, at 865, on this point:

While "[t]here may be cases in which the use of a nonstatutory motion procedure to dismiss a cause of action before trial is called for, . . . courts should be wary of such requests.” (Id., p. 8.)

Therefore, Estrada concluded that the requirement of "manageability" present in class action suits did not apply to PAGA claims. (Id., p. 20-22.)

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Court may consider attorney incivility in deciding whether to lower attorney fees awarded (Snoek v. Exaktime)

 

Courts may consider the incivility of counsel in deciding whether to lower the amount awarded to a party for said attorney's efforts

The Second District, Division Three, of the California Court of Appeal has upheld a trial court ruling reducing the amount of attorney fees awarded to a party due to the incivility of counsel for that party.  (Snoek v. Evaktime (October 21, 2023) BC708964.)  The Hon. Michael P. Linfield, Judge Presiding, of the Los Angeles County Superior Court, applied such a modifier against the plaintiff for the conduct of his counsel when the trial court awarded attorney fees:

Plaintiff Steve Snoeck appeals from the trial court’s order awarding him $686,795.62 in attorney fees after the court applied a .4 negative multiplier to its $1,144,659.36 adjusted lodestar calculation “to account for [p]laintiff’s counsel’s . . . lack of civility throughout the entire course of this litigation.” The court awarded Snoeck fees after he prevailed on one of his six causes of action against his former employer ExakTime Innovations, Inc. on his complaint for disability discrimination under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and related causes of action. The jury [had previously] awarded Snoeck $130,088 in damages on his claim ExakTime failed to engage in a good faith interactive process with him. (Id., p. 2.)

In ruling upon a post-trial motion for attorney fees, the trial court found plainrtiff's counsel's rates of $535.00 to $750.00 per hour "reasonable" but made several alterations to the fees requested, including mathematical corrections and applying a 1.2 positive multiplier to the to the "lodestar" rate awarded, given the length of the case and its "contingent" nature.  However, the trial court also found that plaintiff's counsel, Perry Smith, had been uncivil in sending communications containing ad hominem attacks on defense counsel and applied a .4 negative multiplier to the entire fee award.

In an opinion written by Justice Edgarton, the Second District found the trial court acted well within its discretion when it made this reduction.  In doing so the appellate court rejected the argument the .4 reduction was an improper "sanction" as well as that such a reduction controverted the purpose of the fee-shifting provision in FEHA:

Moreover, the court’s order specifically recognized civility was not just a moral good but an aspect of attorney skill. And, as discussed, ample evidence supports the court’s reduction of the lodestar to account for plaintiff’s counsel’s skill given his incivility toward opposing counsel and the court. (Cf. Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1363 [affirming application of positive multiplier given, in part, “ ‘the skill displayed by plaintiff’s counsel in overcoming the intransigent opposition of defendant’ ”].)
Nor did the court contravene the principles of the FEHA in doing so. The lodestar adjustment method—which gives the court the discretion to augment or diminish the lodestar figure to arrive at a reasonable fee—is the gold standard for determining an attorney fee award under the FEHA. (Id., p. 34; original emphasis.)

Potential consequences for counsel whose fees are reduced due to their own actions

To the extent such a fee reduction results in a decrease in monies ultimately paid to the client (and this is a hypothetical here, as we have no way of knowing if the plaintiff actually paid any fees out-of-pocket) a counsel whose actions have caused such a reduction in what is ultimately paid to a client may face certain consequences.  

First, the client may assert that engaging in uncivil conduct harming said client is a breach of the duty duties owed by the attorney, such as duties related to being a fiduciary and competently performing legal services.

Moreover, such an attorney assuredly owes a duty to the client to explain the consequences of such a ruling in terms of the reduction in attorney fees awarded including the specific reasons such fees are being reduced.  This implicates provisions of the California Rules of Professional Conduct, including rule 1.4 which provides a lawyer must keep a client informed as to significant developments in the case.  

Further, Rule 1.7 requires informing the client of any conflict of interest, and the breach of a fiduciary duty owed a client may be said to create such a "conflict."  Specifically, case law holds that  “attorneys have a fiduciary duty to disclose material facts to their clients, an obligation that includes disclosure of acts of malpractice.” (Beal Bank SSB v. Arter & Hadden LLP (2007) 42 Cal. 4th 503, at 514.)

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One-year MICRA Statute of Limitations Applies to Claim Against Ambulance Driver Who Read-Ended Another Motorist (Gutierrez v. Tostado)

 

The one-year Statute of Limitations in California's MICRA regime bars untimely claim against driver of ambulance who rear-ended third-party motorist while transporting another patient

Plaintiff Gutierrez was driving on the I-280 when he was rear-ended by an ambulance driven by defendant Tostado.  The driver and ambulance operator brought a motion for summary judgment based on the statute of limitations found in California's Medical Injury Compensation Reform Act (MICRA).  This statute was passed by the voters in 1975 and limits the amounts recoverable due to alleged negligence in providing medical services.  

The Hon. Christopher J. Rudy of the Santa Clara County Superior Court granted the motion.  On appeal, the Sixth Appellate District upheld the grant of summary judgment over the dissent of one Justice. (Gutierrez v. Tostado (December 1, 2023) H049983.)

Upon appeal, the issue was whether the one-year MICRA statute of limitations found in Code of Civil Procedure section 340.5, as opposed to the general two-year statute of limitations for tort actions, applied.  In other words, did MICRA's provisions apply where the negligence of medical providers was directed at a non-patient such as fellow motorist Gutierrez, who just happened to be driving in front of defendants' ambulance?

 

Justice Greenwood, joined by Justice Grover, wrote for the majority and found that because Tostado was driving the ambulance he was providing "professional [medical] services" at the time of the accident.  Therefore, the time limitations found in MICRA applied.  This is important because under case law such as Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal. 4th 75, at 88, only actions “alleging injury suffered as a result of . . . the provision of medical care to patients” are subject to MICRA. (Gutierrez, p. 3; italics added.)

The majority answered this question affirmatively and cited to Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal. App. 4th 388, at 407, where the MICRA one-year limit applied to injury to someone injured while riding in an ambulance who was not a patient.  As Gutierrez explained at pages five to six, the MICRA time limit applied to someone not receiving medical service but who was nonetheless still injured as a result of negligence in providing such services:

 

In Canister, a police officer accompanying an arrestee in the back of an ambulance was injured when the ambulance hit a curb. At the time of the accident, the ambulance was being driven by one EMT while another attended to the arrestee in the rear of the ambulance. The officer sued for negligence. (Canister, supra, 160 Cal.App.4th at p. 392.) After finding that an EMT was a health care provider and that transporting a patient constituted professional services within the meaning of MICRA, the Canister court held that MICRA extends to “ ‘any foreseeable injured party, including patients, business invitees, staff members or visitors, provided the injuries alleged arose out of professional negligence.’ [Citation.]” (Id. at pp. 407-408.) The court concluded that it was foreseeable as a matter of law that a police officer accompanying an arrestee in an ambulance might be injured in the operation of the ambulance. (Id. at p. 408.)

 

Justice Bromberg dissented and wrote that neither the plaintiff nor the defendants could have anticipated that MICRA would apply in this situation, i.e., "a run-of-the-mill traffic accident involving an ambulance that happened to be transporting a patient on a non-emergency matter, presumably with its siren off." (Gutierrez dissent, p. 2.)  The dissent also noted the plaintiff's lawyers were unlikely to know that MICRA applied to his claim because in 1982 the MICRA provisions specifically related to paramedics were removed. (Gutierrez dissent, p. 4.)  Moreover, at the time MICRA was enacted the general statute of limitations for tort claims was one-year, meaning MICRA was not intended to shorten the time to bring claims. Rather, its purpose was to reduce the amount of monetary awards for medical malpractice to prevent a reduction in affordable and available medical care to the public.

Further review of Gutierrez

This case may ultimately be headed to the California Supreme Court, given that the case law cited by the majority and dissent lacks harmony as to when MICRA does or does not apply.

It should also be noted that earlier this year MICRA was amended by the California legislature.  The original $250,000 "cap" on claims for professional medical negligence was increased.  Wrongful death claims from medical malpractice are now "capped" at $500,000 and this amount will increase by $50,000 each January until the maximum is $1,000,000.  For other claims, the "cap" is $350,000, with yearly increases of $40,000 until the new limit reaches $750,000.

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Short take-away -- misconduct for arbitrator to base credibility upon use ofinterpreter (FCM v. Grove Pham)

 

Arbitration award reversed due to "misconduct" where arbitrator makes adverse credibility determination upon party's use of an interpreter

The California Court of Appeal for the Fourth District, Division One, has overturned an award in a contractual arbitration proceeding because it was based, at least in part, upon an improper determination a witness was not credible. (KMI v. Grove Pham (October 17, 2023) D080801.)  Writing for a unanimous majority, Justice Dato overturned the order of the Hon. Daniel A. Ottalia, Judge Presiding, of the Riverside County Superior Court.  The trial court had confirmed the petition of plaintiff FCM to confirm the arbitration award in its favor over the objections of defendant Grove Pham.  Grove argued the arbitrator committed misconduct when she made a determination plaintiff and witness Phuong Pham was not credible.  

Despite the general rule that an appellate court defers to an arbitrator's findings as to credibility, the Fourth District found the arbitrator had improperly discounted Mrs. Pham's testimony:

In the arbitrator’s view, although the transaction “was rather complicated,” her decision in the case was “made easier by an evaluation of the credibility of the witnesses.”                                         ...

The arbitrator did not find Phuong or Trish credible. In explaining why, she highlighted as the key example Phuong’s use of an interpreter:

“Among the items that stand out, is Mrs. Pham’s use of an interpreter. While the Arbitrator understands that people for whom English is a second language frequently prefer to testify in their native language in important legal matters, Mrs. Pham’s use of an interpreter appeared to the Arbitrator to be a ploy to appear less sophisticated than she really is. She has been in the country for decades, has engaged in sophisticated business transactions and has functioned as an interpreter." (Id., p 5.) 

The appellate court found this finding rose to the level of "bias" against Pham,  given the fact there was little evidence to support it.  For example, the court of appeal noted that immigrant communities may include "thriving" businesses run by persons who speak English only as a second language, and the fact that Mrs. Pham requested an interpreter did not indicate her testimony was less credible.  The court further noted that the facts plead indicated Mrs. Pham had used her daughter as an interpreter during the subject business dealings.

The Fourth District thus held the record showed arbitrator "bias" and such bias is included in the definition of "misconduct." Consequently, the rights of the plaintiff were prejudiced, and such misconduct resulting in prejudice is one of the narrow grounds for overturning an arbitration award under California's Code of Civil Procedure section 1286.2(a)(3).

Claim of Malpractice by Partnership Does Not "Relate-Back" to the Filing of Partner's Malpractice Claim (Engel v. Pech)

 

For purposes of the statute of limitations, a claim of attorney malpractice by a partnership is independent of a partner's prior malpractice claim 

The Second District has upheld a demurrer to an entire complaint on the grounds that such is barred by the statute of limitations because the partnership's claim against their former counsel did not "relate back" to the prior date an individual partner filed his own malpractice claim. (Engel v. Pech (September 28, 2023) B324560.)  The court further held that, although timely, the individual partner's claim was not viable since any actual damages were suffered by the partnership itself.  The Hon. Maureen Duffy-Lewis, Judge Presiding, of the Los Angeles County Superior Court sustained the defendant attorney's demurer to the entire complaint, and the individual and partnership both appealed. 

Key to this ruling was the fact the prior malpractice claim of the partner was, by way of amendment to the complaint, later expanded to include that of the partnership; as the appellate court explained:

A limited liability partnership and one of its partners retained a lawyer but limited the scope of representation to having the lawyer represent the partnership in a specific, ongoing case. After the partnership lost the case, the partner sued the lawyer for malpractice. In an amended complaint, the partnership was added as a plaintiff. The partner’s complaint was filed before the statute of limitations ran; the amendment was filed after. (Id., p. 2; original emphasis.)

It should be noted that the alleged malpractice by Pech related to his work representing an accounting partnership, Engel & Engel, LLP (referred to by the court as "the LLP") in an action against Wells Fargo.  However, individual plaintiff and partner in the LLP, Jason Engel, was not named as an individual party to the suit against the bank.

In amending the partner's claim against Pech to also include the LLP, plaintiffs claimed the amendment "related back" to the date of filing the prior malpractice claim and therefore was proper even though it was beyond the one-year time-limit.  The Second District disagreed, characterizing the LLP's claim as "independent" and noting this was not analogous to other instances where a complaint "related back" because a newly-added plaintiff was enforcing the same right as the original plaintiff:

An amendment adding a new plaintiff will not relate back to a prior complaint if the new plaintiff is “enforc[ing] an independent right” that imposes a “‘wholly distinct and different legal obligation against the defendant’” (Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533, italics omitted (Bartalo); Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 243 (Branick)). Because the partnership’s malpractice claims against the lawyer are distinct from—and in addition to—the partner’s malpractice claim, the partnership’s claims do not relate back and are untimely. (Id., p. 2; citation omitted.)

The Second District further noted the original complaint by the partner "misleadingly alleges that Engel himself. . . was. . . the party who prosecuted the Wells Fargo litigation" even though he was not. (Id., p. 5.)

As to the claim of Engel as an individual, the Second District found that even though both Engel and the LLP itself signed the retainer agreement with Pech, only the latter suffered damages. Writing for the majority, Justice Hoffstadt found this indicated only the LLP could bring a claim against Pech, given that the malpractice involved the Wells Fargo suit:

[T]he operative complaint is. . . explicitly limited to deficiencies in Pech’s representation during the Wells Fargo litigation, [meaning] the only entity that could have suffered damages as a result of that malpractice was the LLP, not Engel. (Id., p. 17.)

Tips for practitioners

Plaintiffs and their counsel should decide at the outset whom to include in the complaint and who has what particular claim.  Counsel should be especially careful in this regard where the subject of the lawsuit is prior business dealings that are well-documented.  Where there is such a trial of documents it is difficult to argue the plaintiff missed the statutory deadline to file because they were either 1) "ignorant" of the identity of a defendant, and/or 2) not aware of their specific role in the dealings between the parties.

Nonetheless, experience teaches that some counsel appear to rely far too heavily upon the general rule of "liberality" in amending pleadings and/or the "relation back" doctrine.  These counsel wrongly assume they may add parties who have different roles in the subject transactions and, therefore lesser or greater damages, at any stage in the proceedings by simply filing an amended complaint.

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