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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Short take-away -- "friends with benefits" may not may not qualify as a "dating relationship" under California law

A "friends with benefits" relationship may or may not qualify as a "dating relationship" under California law for purposes of application of domestic violence law. (M.A. v. B. F. (February 5, 2024) G061598.)  The Fourth District Division Three summarized the issue and its holding as follows:

We are asked here to determine whether a relationship characterized in modern parlance — and by the plaintiff in this case — as “friends with benefits” constitutes a dating relationship under Family Code section 6210, so as to support a tort claim for domestic violence. Whether such a dating relationship exists is inherently a fact-intensive inquiry, not susceptible to resolution based on shorthand labels or descriptors. We therefore do not hold a “friends with benefits” relationship is necessarily a dating relationship or that it can never be one. We simply conclude, on the specific record before us, substantial evidence supports the trial court’s finding that the relationship between plaintiff M.A. and defendant B.F. was not a dating relationship within the meaning of the relevant statutes. We affirm. (Id., pp. 1-2.)

This issue arises because California's Civil Code section 1708.6(a) provides the tort of "domestic violence" requires a "relationship."  Further, Penal Code section 13700 defines domestic violence to include "dating or engagement relationship" and Family Code section 6210 has a similar definition.

The majority in M.A. affirmed the trial court's judgment in favor of B.A. under a "substantial evidence" standard of review, showing deference to its review of the evidence.  It therefore found the trial court had the discretion to find, or, in the case here, to not find, a "friends with benefits" situation involved a "relationship," noting "different inferences" could be drawn from the facts. (Id., p. 13.)  The majority also noted section 6210 uses the phrase "frequent, intimate associations” but does not define such.

Justice Sanchez dissented from the majority opinion written by Justice Gooding.  The dissent concluded that under the facts here plaintiff M.A. fell under "the category of victims the law was meant to protect" no matter the on-and-off nature of the encounters between her and defendant. (Id., p. 6.)

What the opinion does not explain

It is unclear from the record here why the plaintiff did not also bring a tort claim for assault and battery or other related torts, which claims do not require she prove the parties were in a "relationship."  It is, for example, unclear from the opinion whether such a claim would be time-barred.  Footnote seven only states that:

We note M.A. had remedies available to her under the law to seek redress for her injuries, including tort claims against B.F. for assault and battery. 

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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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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).

Short take-away - Website is not a public "place" subject to the ADA and the Unruh Act (Martin v. Thi E-Commerce)

Short take-away - A website with no physical location cannot be sued for failure to fully implement screen reading for blind visitors

Plaintiffs admittedly seek out websites that are not fully accessible to the disabled and therefore sued a website unrelated to the entrance to any physical location, i.e., a "stand alone" e-commerce website.  They alleged the website was not fully compatible with screen-reading technology to assist blind visitors, resulting in a violation of California's Unruh Act barring discrimination based on disability.  More specifically they argued the website is a place of "public accommodation" under the Federal Americans with Disabilities Act ("ADA") and compatibility with screen reading technology was therefore required.

Acknowledging that both Federal and California courts were split as to how to apply the statutory language "place" to a website, the Fourth Appellate District, Division Three, held that a site that exists purely in cyberspace was not a "place" as fined by the ADA. (Martin v. THI Commerce (September 13, 2023) G061234.) 

Acting Presiding Justice Sanchez wrote for the majority and interpreted the phrase "place of public accommodation," as defined in the Americans with Disabilities Act, as excluding websites that have no relation to any physical location.  Therefore, a website not required for entrance to a physical location (in contrast to a website used to make entrance reservations) is not subject to the provisions of the ADA as "the ADA unambiguously requires a physical location." (Martin, p. 2.)  The demurrer sustained by the Hon. Theodore R. Howard of the Orange County Superior Court as to the entire complaint was therefore upheld by the Fourth District.

Justice Delaney dissented, noting that Mirriam Webster's Collegiate Dictionary (2003) provides that "'Place’ includes. . . ‘an indefinite region or expanse.'"  The dissent argued the intent of the ADA was to be applied broadly and the examples given as to places of public accommodation in the statute were meant to be examples only and should not limit its application to future technology. 

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