Who should argue before the Court of Appeal: the appellate or trial lawyer?

Should the lawyer with the most knowledge of the case or the one who has the most appellate experience appear before the Court of Appeal?

One of the questions most frequently asked of appellate practitioners is whether the trial lawyer or the appellate specialist should conduct the oral argument.  The answer might appear obvious —  the appellate attorney — but there are advantages and disadvantages to having either the trial attorney or appellate attorney at the lectern.  

In making this decision one should recall what oral argument entails.  Such an argument requires extensive preparation because it must not be a regurgitation or even a summary of the brief the panel of justices has already read.  Rather, such an argument should focus on the key argument — and, hopefully, the various issues briefed in writing may be distilled into an argument in the singular — upon which the decision should rest.   Preparation is also necessary to be able to quickly rebut arguments made by your opponent as well as to be able to decisively answer questions posted by the court. 

Notice of the argument may be sent out eight to 12 weeks prior to the actual date. [1]  This ordinarily occurs after the parties have given their estimate of how long the argument will take, with each party providing their own estimate.  While there is a maximum amount of time, often 30 or 45 minutes, which may be allotted, there is no “average” or “default” amount.  

That being said, 10, 15, or 20 minutes are common estimates.  Bear in mind that if one reserves time for any rebuttal to your opponent’s argument, these minutes are included in your total time estimate, meaning rebuttal time will reduce the amount of time you have during your initial argument.

It may not be possible to hire someone to conduct the argument

Looking at this from a practical view, there may be financial concerns involved, as a client who may wish to pay to have an appellate brief written may not be able to pay for the cost of having the appellate attorney travel to, and prepare for, an appellate argument.  

On the other hand, the trial lawyer may have a scheduling conflict which may make it impossible to prepare for the argument and/or travel to attend such.  The worst-case scenario occurs if a trial lawyer without sufficient appellate experience who has hired an appellate lawyer to brief the matter then plans to argue before the Court of Appeal but is prevented from actually preparing by an unexpected emergency that arises in another matter.

Ethical implications to consider in deciding who should argue the appeal

This brings us to ethical parameters which may inform the decision of trial counsel to seek assistance. California Rules of Professional Responsibility, rule 11, sets forth the minimum competency required in a particular matter, explaining that such competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”  A lawyer who does not meet or have the time to attain minimal competence may therefore meet this standard by referral to a lawyer who has.

Consider whether the presence of the trial lawyer will constrain the arguments which may be made before the appellate court

The cost of hiring an appellate lawyer to conduct the argument may be money well-spent for a number of reasons, some obvious and some less so.  As but one example, the appellate practitioner may be much better suited to making an argument including an admission about what occurred at trial, such as an admission the trial lawyer may have missed a deadline coupled with an argument that there was no real prejudice from this error.   While the trial lawyer could theoretically make the same admission, given human nature and the healthy ego many lawyers possess, it is less likely they will do so.

Perhaps the best approach is to have both trial and appellate counsel attend, with the appellate lawyer arguing the legal issues and trial counsel present but silent at the counsel table in front of the justices.  This gives the impression the trial lawyer takes the matter seriously enough to both hire appellate counsel and attend the hearing.

Further, while appellate counsel should be prepared to argue the case without any “prompts” from the trial lawyer, it remains the trial lawyer’s presence means it is possible — if the need arises — for the appellate lawyer to discreetly confirm a key fact from the trial lawyer. [2]

1 - Because most appellate courts do not request input from counsel as to available dates, the argument may be set on a date conflicting with your most ambitious trial to date, daughter’s wedding, surgery, etc.  A prompt call to the Clerk of the Court should inform you as to whether or not the Court of Appeal will entertain flexibility in scheduling the argument.   Being prepared with alternative dates which are feasible for all other counsel will smooth this process.

2 - One should not count on being able to interrupt the argument to confirm a key fact with trial counsel.  Still, I have observed appellate counsel who has been asked a very specific factual question as to what occurred at trial then politely ask the appellate panel whether they may briefly request confirmation from trial counsel sitting adjacent to the lectern.  One panel I observed answered in the affirmative and trial counsel was permitted to nod yes and confirm this fact to appellate counsel.

Triable Issue as to Whether Landowner Caused Exposure to Fungi (Beebe v. Wonderful)

Defendants not entitled to summary judgment as to "substantial factor" causation because testimony of experts created triable issue as to whether contractor's employee was harmed on premises

The Fifth District has overturned a grant of summary judgment in favor of a landowner for injury to an electrical contractor’s employee from the fungi such as Histoplasma Capsulatum. (Beebe v. Wonderful Pistachios (June 6, 2023) F083502.) Plaintiff and appellant Beebe (“Beebe”) worked for an electrical contractor performing extensive work on the premises of defendant and respondent Wonderful Pistachios (“Wonderful”) and was therefore allegedly exposed to a fungus related to bird feces on a constant basis.  Specifically, Wonderful and/or its agents engaged in “hydroblasting” and other clean-up which caused the bird feces to be airborne, which is potentially dangerous because Histoplasma Capsulatum is a soil-based fungus that feeds upon bird feces.  This feces was literally everywhere, covering almost every surface in a “pole barn” area where Beebe performed his work lasting weeks at a time during which time Beebe lived in an RV near the Barn.  Beebe therefore alleged the fungus caused his Histoplasmosis and resulting surgery:  

The toxic substance(s) were allowed to accumulate and become airborne by Defendants’ actions and/or omissions herein. The substance(s) contained fungi including, but not limited to, Histoplasma Capsulatum. Plaintiff is informed and believes and based thereon alleges that when inhaled, said substance(s) caused Plaintiff’s lung infection which spread to other parts of Plaintiff’s body.” The complaint further noted: “On or about November 24, 2015, Plaintiff reported to the hospital due to symptoms including, but not limited to, weakness and numbness in his extremities. Plaintiff was admitted to the hospital and imaging scans were performed. Subsequently, lesions were discovered on, among other locations, Plaintiff’s brain, such that Plaintiff required surgical intervention. The lesions were biopsied in or about February 2016. Plaintiff was then diagnosed with Histoplasmosis. (Id., pp. 3-4.) 

Wonderful and the other defendants then brought a motion for summary judgment, arguing plaintiff could not provide their actions were a “substantial factor” in the harm, arguing the fact Beebe presented with symptoms sometime after exposure to the fungus at their location indicated Beebe might have contracted Histoplasmosis from exposure somewhere else.  The motion was granted by the Hon. David R. Lampe of Kern County Superior Court and Beebe timely appealed.  

Beebe explained a plaintiff does not have to preclude all other causes to bring a claim for “substantial factor” before the jury

Justice Smith wrote the opinion for the Fifth District and explained there was in fact a triable issue as to whether the defendants were the “cause in fact” of the harm.  Beebe distinguished the prior case of Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal. App. 4th 1326, upon which the trial court relied.  Miranda upheld summary judgment in favor of the defendant from an employee’s injury due to “valley fever” and the alleged exposure to the endemic Cochi fungus, finding it relevant the fungus could be carried over large areas by strong winds.  The Beebe court noted that here, by contrast, there was evidence supported a much stronger inference the employee was exposed to the fungus at Wonderful’s premises:

Here, Beebe adduced ample evidence showing that WP&A’s Firebaugh Facility was on a migratory route for flocks of swallows that had been nesting at the Facility for years, particularly in the pole barn. Hundreds of swallows would nest there for long periods every year, including the entire time Beebe worked at the Facility. There can be no doubt that the presence of the birds was significant and problematic, given that WP&A personnel made various attempts (some ill-advised) in the relevant time period, to prevent the birds from roosting in the pole barn and other areas of the Facility. 

The evidence also showed that the accumulation of bird feces was an extreme problem at the Facility, with some spots having layers of feces an inch or two thick. The accumulations interfered, at times, with the work the Braaten electricians [such as Beebe] were performing at the site (Beebe himself had to personally remove bird droppings at times). Although efforts were made to dry sweep or use leaf blowers to clear feces off the floor of the pole barn, the feces were simply deposited on the surrounding soil and not removed from the site. Beebe testified he was not exposed to concentrated accumulations of bird feces anywhere other than the Firebaugh Facility. (Id., pp. 30-31.)

Beebe stressed that in order to prove factual causation a plaintiff must prove the case of the harm with “reasonable probability,” meaning factual causation involves “reasonable medical probability.” (Id., p. 24; emphasis added.)  A plaintiff does not have to prove that no other causes could have contributed to the harm, and, consequently, does not have to provide factual causation with “certainty.” (Id.)

Crucially, the appellate court found the trial court had improperly excluded two of Beebe’s experts on the grounds their testimony was “speculative;”  Even though a trial court’s ruling on evidentiary matters is viewed through the lens of an “abuse of discretion” standard, the trial court’s ruling did not survive analysis under this standard and plaintiff’s expert’s conclusions should not have been excluded.  Therefore, the appellate court considered the declarations proffered by both sides, which declarations created triable issues of material fact as to the factual cause of Beebe’s harm. 

Lessons for practitioners when dealing with issues of causation raised in a motion for summary judgment

Such motions often become a “battle of the experts” to the same extent as would a trial.  For example, in Beebe the experts disagreed on a number of crucial issues, such as the prevalence of injury from Histoplasmosis in the area or whether exposure to Histoplasma Capsulatum would ordinarily cause symptoms immediately or if they might present later. 

Beebe thus illustrates how difficult it is to obtain summary judgment based upon a “cause in fact” argument where the defendant alleges there are other possible causes of the harm such that the defendant’s conduct was not a “substantial factor” in the harm.  Which possible causes were more likely to be the actual cause of the harm is ordinarily a triable issue the parties address at trial by the use of expensive — and sometimes difficult to obtain — expert witness testimony.

Sanctions May Be Imposed for Frivolous Appeal Intended to Delay (Champlin v. Avery)

 

Plaintiff is sanctioned $15,000 for filing an appeal with no merit in an attempt to delay the removal of a mechanic’s lien

The Second District, Division Six, has sanctioned counsel for appellant Avery and his counsel of record, Steven Slavitt, $15,000 for filing and maintaining a frivolous appeal designed for the purpose of delay. (Champlin/GEI Wind Holdings v. Avery (June 2, 2023) B319563.)  Plaintiff and respondent Champlin/GEI Wind Holdings (“respondent”) entered into an agreement to develop a wind energy project in Oahu.  Appellant and defendant Keith Avery (“appellant”) was to receive both a return on capital and a “monthly services fee:”

Appellant, acting through West Wind Works, LLC (3W). . . and respondent entered into a Development Services Agreement (DSA) to develop a wind energy project on Oahu, Hawaii. Pursuant to the DSA and related agreements, appellant had a 5 percent interest in Champlin Hawaii, an entity formed to jointly develop wind energy projects on Oahu. These agreements provided that all distributions from Champlin Hawaii would be made to respondent until respondent received a 15 percent internal rate of return on its invested capital. Then, appellant’s limited liability company, 3W, would participate in distributions. Appellant was paid a monthly services fee, starting at $2,000 per month, with a cap of $250,000. 

About two years after these agreements were made, appellant assigned his 5 percent interest in Champlin Hawaii to respondent. . .  The parties also amended the DSA. . . . [and] provided for a bonus to be paid to appellant after the project achieved its commercial operation date (COD) or was sold, and respondent achieved its 15 percent pre-tax internal rate of return. (Id., pp. 2-3.)

When the project was terminated, appellant maintained he was entitled to additional compensation and filed a mechanic’s lien in Hawaii:

Respondent terminated the DSA in March 2015, after appellant stopped working on project-related matters and the project missed many of its development milestone dates. . . .  In December 2018, respondent sold its interest to a third party. . . resulting in an actual internal rate of return of 8.60676 percent. 

In May 2020, appellant filed a mechanic’s lien in Hawaii, alleging he was entitled to additional compensation under the amended DSA. Respondent filed its complaint against appellant in California. It alleged that appellant breached the DSA by, among other things, failing to mediate before filing the mechanic’s lien and ignoring the DSA’s choice of law and forum selection provisions. Appellant’s cross-complaint alleges only that respondent breached the DSA when it “sold the project . . . without [appellant’s] knowledge or approval,” resulting “in the termination of [appellant’s] compensation . . . .” (Id., pp. 3-4; footnote omitted.)

Respondent brought a motion for summary judgment and/or summary adjudication upon its complaint and/or the cross-complaint.  Appellant, however, did not oppose the motion until the day before the hearing, failing to properly oppose the motion for summary judgment by filing opposing papers 14 days in advance providing admissible contrary evidence cited in a separate statement as to what facts were or were not disputed. (See, e.g., Code of Civil Procedure section 437c(b).)  

Appellant also acknowledged his cross-complaint did not reflect the legal theory upon which his claim was made and made a last-minute oral request to amend the complaint, which was denied.  The Hon. Thomas P. Anderle, of the Superior Court County of Santa Barbara therefore granted summary judgment in favor of respondent upon both the complaint and the cross-complaint.

The actions of appellant in the trial and appellate courts showed a lack of understanding of basic civil procedure

The appellate court affirmed all rulings of the trial court.  Moreover, it found the entire appeal to be without merit and noted the willful ignorance of the appellant and his counsel as to these merits warranted reiteration of the “duties of counsel” toward the court: 

. . .[W]e must opine on the duties of counsel as an officer of the court. We expect counsel to know and follow basic law relating to civil procedure. That did not happen here. We will impose sanctions for the filing of a frivolous appeal from a discretionary trial court ruling. We publish this opinion for several reasons, not the least of which is a guidepost to the bar not to file a frivolous appeal. We ourselves had occasion to warn attorneys concerning the abuse of discretion standard on appeal twenty-five years ago. [Citations.] We borrow the phrase from our previous opinion: This appeal “was ‘dead on arrival’ at the appellate courthouse.” [Citation.]  This does not mean that we do not consider the contentions of counsel. We do. But sometimes, the contentions are frivolous in light of the record on appeal. That is the case here. (Id., pp. 1-2.)

As Champlin pointed out, appellant did not make a formal request to amend or otherwise file a motion to amend the complaint.  Appellant thereafter filed a notice of appeal from both the denial of oral request to amend the cross-complaint and the order granting the motion for summary judgment, both of which are non-appealable orders and not final judgments.  Nonetheless, the appellate court utilized its discretion to treat the appeal as if it had been from an actual judgment following the granting of the motion, and therefore considered the merits of the appeal.

Which, of course, the appellate court found lacking.  In particular, the appellate court was critical of the failure of appellant to follow correct procedure in the trial and appellate courts.  This included appellant’s improper reliance upon “facts” which had not been established by citation to a separate statement supported by admissible evidence, such as appellant’s claims that he was entitled to additional monies under the amended DSA.  

Appellant also failed to appreciate the importance of the standard of review, to wit, the manner in which an appellate court looks at trial court rulings.  While an appellate court ordinarily utilized a “de novo” review whereby the appellate court looks at the evidence without deference to the trial court’s determinations, appellant’s failure to provide a proper opposition to the motion for summary judgment made this impossible:  

Trial counsel at the motion for summary judgment also represents appellant in this court. He ignores all of the traditional rules of appeal. He is correct that our review of a grant of summary judgment is de novo. That does not mean we consider counsel’s conclusion that there are issues of fact to be resolved at trial. These “facts” are not in the record, i.e., not in a separate statement of disputed facts or supported by declarations or other evidence. (Champlin, p. 11.)

The appellate court also noted appellant did not understand that the trial court’s ruling denying the motion to amend was left to the sound discretion of that court, meaning it would be disturbed absent an abuse of discretion:

He is also correct in saying that pleadings are to be liberally construed. That does not mean his oral motion to amend the cross-complaint should have been granted. This is a discretionary ruling. Again, counsel does not appreciate traditional rules on appeal. [Citation.]

The Second District therefore upheld the grant of summary judgment, finding appellant was not entitled to any additional monies beyond what he had already been paid.  Writing for a unanimous panel, Justice Yegan explained the appellate court’s finding there was no merit to any of appellant’s claims should “end” this matter and result in the removal of the mechanic’s lien filed in Hawaii.

Champlin is a stark lessen for practitioners who wish to avoid sanctions at the appellate level

One crucial lesson is that if counsel is not fluent in the procedural nooks and crannies of motion practice and has no experience in appellate procedure it is incumbent upon said counsel to seek assistance. (See California Rules of Professional Responsibility, rule 11, setting forth the minimum competency required in a particular matter and noting this competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”)

The appellate court in turn concluded the subject appeal was frivolous, and, even worse, was intended for the purpose of delay.  As Champlin aptly pointed out, despite a choice of law provision that disputes were to be decided in Santa Barbara county, appellant filed a mechanic’s lien in Hawaii.  Worse, the filing and maintenance of the appeal delayed the resolution of the mechanic’s lien, to the detriment of respondent.

Parties who intend to file an appeal where said filing extends the life of a lien or other encumbrance should consider whether this filing will later be viewed as a frivolous tactic designed for purposes of delay.  Counsel should also consider whether they have a good-faith basis to ignore a clearly-worded choice of law provision by making the deliberate choice to file in another jurisdiction.

Here, of course, the failure to consider the merits of the appeal resulted in appellant and counsel being ordered to pay respondent $10,000 and the Clerk of the Court $5,000. [1]  In summary, a 

trial lawyer may need the help of an attorney with particular expertise in 1) civil motion practice, and, 2) appellate procedure, including someone with sufficient experience to determine whether an appeal has sufficient merit to avoid a claim it is “frivolous.” [2]

1 - These sums were chosen to deter future conduct and to compensate for the harm caused by defending against the appeal and the mechanic’s lien.  However, respondent claimed these expenses were much greater than the $10,000 awarded, leaving open the question as to whether respondent may seek the remainder of its attorney fees in a California or Hawaii court.  This is because the opinion does not set forth whether, in addition to its mandatory arbitration and choice of law provisions, the amended DSA contained an attorney fee clause provision.  The opinion is also silent as to whether respondent’s complaint pled entitlement to attorney fees.

2- Such practitioners may include those certified by the California Bar as Certified Specialists in the area of Appellate law. 

Veterinarian may be liable for intentional infliction of emotional distress for fraudulent treatment of pet (Berry v. Frazier)

 

In California, a plaintiff may plead fraud and intentional infliction of emotional distress against a D.V.M. for the botched euthanasia of a pet and thus may state a claim for punitive damages 

In Berry v. Frazier (May 15, 2023) A164168, plaintiff engaged a service to provide humane in-home euthanasia of her cat.  This service in turn engaged defendant Frazier, a Doctor of Veterinarian Medicine, who ultimately ended up utilizing an intracardiac injection, allegedly without anesthesia, upon plaintiff’s feline.  As the doctor allegedly said, this was because an overdose of medication would “take too long:” 

Frazier and an assistant arrived at Berry’s home in the late afternoon. The euthanasia was to take place in the backyard, where Frazier and his assistant prepared the cat for the insertion of a catheter. During this initial attempt to sedate the cat, Frazier told Kraus and Berry [the owners of the cat], “ ‘Go over there,’ ’’ indicating they should move 30 feet away. They complied, and waited for Frazier to indicate when they could return. After a few moments, Frazier told them that he was unable to place the catheter even though he had tried to do so in all the cat’s limbs. Berry and Kraus became upset and Kraus suggested an overdose of an oral medication (buprenorphine) that had been prescribed for the cat. Frazier responded that it would “ ‘take too long,’ ” but did not explain how long or why the length of time was significant. 

Frazier then suggested euthanasia by “ ‘heart stick’ ” injection, the colloquial term for intracardiac injection, a procedure by which fluid is injected directly into the heart. When Kraus said he had never heard of the procedure, Frazier responded, in a calm and reassuring demeanor, with comments like, “ ‘[i]t’s a small needle,’ ” “ ‘it’s very quick,’ ” and the cat will “ ‘never know what’s happening’ ” and “ ‘won’t feel a thing.’ ” When Berry became emotional, Frazier again calmly described the procedure, adding phrases along the lines of “ ‘it’s the right thing.’ ” Based on Frazier’s representations and in reliance on Frazier’s expertise, Berry consented. Frazier then instructed Berry and Kraus to go inside the house, which they did. Frazier and his assistant completed the procedure and left with the cat.

Berry later learned of the “horrors” of using an intracardiac injection to euthanize a conscious cat. Contrary to Frazier’s representations, it was

“ ‘extremely painful’ ” and generally considered “ ‘inhumane’ ” when performed on a conscious cat. [Footnotes omitted.] (Id., pp. 3-4.)

Berry sued, alleging causes of action for 1) breach of fiduciary duty, 2) conversion of chattel, 3) trespass to chattel, 4) “fraud/deceit /intentional misrepresentation,” 5) intentional infliction of emotional distress, and 6) violation of Civil Code section 3340.  She also alleged entitlement to punitive or exemplary damages.  The trial court sustained the defendant doctor’s demurrer to the second through sixth causes of action and plaintiff dismissed the sole remaining cause of action.  The Hon. Ethan P. Schulman of the San Francisco County Superior Court then denied the motion to strike portions of the complaint, including the request for punitive damages, as moot. 

Judgment was then entered for the defendant and plaintiff appealed.  The California Cout of Appeal for the First District, Division Three, found the appeal from the judgment timely and proper, citing Abatti v. Imperial Irrigation Dist. (2012) 205 Cal. App. 4th 650, at 655.  Specifically, there were no portions of the complaint still pending and the parties had not stipulated to further litigate any claims.  At the same time, the appellate court dismissed the purported appeal from the Motion to Strike ruling as being made from a non-appealable order and not a final judgment. 

Plaintiff properly pled trespass and conversion of chattel

The Berry court rejected the defense claim that there could be no claims for conversion or trespass because the facts merely alleged “professional negligence.”  As the appellate court explained, such defense arguments “ignore the specific allegations that Berry had a legally protectable right to decide the time and manner of the euthanasia of her cat because the cat was her personal property.” (Berry, p. 16.) 

Plaintiff also properly pled intentional infliction of emotional distress and fraud based upon facts showing an intentional misrepresentation

Defendant also argued plaintiff could not state a claim for intentional infliction of emotional distress under her third cause of action, citing McMahon v. Craig (2009) 176 Cal. App. 4th 1502.)  In McMahon, plaintiff plead intentional infliction of emotional distress resulting from malpractice which caused the death of the plaintiff’s dog.  McMahon held the pet’s owner was not entitled to damages for loss of companionship and related emotional distress, as such a claim is not recognized by California law:

We recognize the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog. But given California law does not allow parents to recover for the loss of companionship of their children, we are constrained not to allow a pet owner to recover for loss of the companionship of a pet. (McMahon, pp. 1519–1520.)

Berry, however, did not find McMahon dispositive, explaining that liability in McMahon was limited because it involved the measure of damages for professional malpractice.  Here, by contrast, plaintiff alleged not only fraud but also trespass to personal property:

In McMahon, the plaintiff alleged defendants engaged in negligent veterinary malpractice and lied to her to cover up their malpractice. (Id. at p. 1506.) While the complaint included a cause of action for conversion, McMahon did not address that cause of action in resolving the appeal. (Id. at pp. 1508– 1520.) Nor did the McMahon court address a cause of action for trespass to chattels. (See Plotnick, supra, 208 Cal.App.4th at p. 1606 [court held plaintiff could recover emotional distress damages for trespass to chattels cause of action, finding McMahon was inapposite as it “did not involve an action for trespass to personal property”].) (Id., pp. 14-15.) 

The First District further explained McMahon was inapposite because it did not involve a claim for fraud.  In stark contrast, here plaintiff alleged Dr. Frazier made an intentional misrepresentation to her.  Therefore, his actions were directed toward plaintiff Berry and not merely her animal:

In urging that Berry’s claimed loss (her right to “ ‘give the cat a good death’ ”) is not actionable because Berry was not the subject or beneficiary of the veterinary care, Frazier asks us to consider McMahon v. Craig (2009) 176 Cal.App.4th 1502 (McMahon) at page 1510: “[A]lthough a veterinarian is hired by the owner of the pet, the veterinarian’s medical care is directed only to the pet. Thus, a veterinarian’s malpractice does not directly harm the owner in a manner creating liability for emotional distress.” McMahon is inapposite as that court was not concerned with, and therefore had no occasion to address, the nature of damages that could be recovered for a claim of fraud based not on a veterinarian’s malpractice but rather on intentional misrepresentations made to induce a pet owner to consent to an unnecessary, unjustified, and painful procedure. [Citation.] (Id., p. 12; emphasis added.)

Plaintiff could not state a separate cause for action based upon Civil Code section 3340, though this statute could be the basis for a claim for punitive damages

The Berry court termed section 3340 “broadly-worded.” This section provides for punitive damages for “willful” and “inhumane” injury to animals and states in full:

For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.

According to Berry, this section remains valid and relevant, but it does not support a separate cause of action.  Rather, it permits an award of punitive damages where a plaintiff proves its elements.  In other words, section 3340 may be the basis for punitive damages to be pled as part of the damages in other causes of action.

More importantly, Berry held that this section may support a claim for punitive damages independent of such a claim being made under Civil Code section 3294.  This latter section sets forth the basis for punitive damages in California and requires a plaintiff prove such by way of “clear and convincing evidence.”  Section 3294 also defines the “malice, oppression, and fraud” necessary to state a claim for punitive damages.  

However, as Berry explained, the procedural safeguards found in section 3294 do not apply to a claim for punitive damages under section 3340, which, as quoted above, applies where there has been an injury to an animal “in disregard of humanity.”  In holding each section could be read independently of the other, Berry aptly noted sections 3294 and 3340 were both enacted in 1874.  While the legislature has amended section 3294 multiple times over the years, it has not made similar changes to section 3340 despite the opportunity to do so. 

Advice for practitioners defending or prosecuting claims for injuries to animals

In summary, Berry overturned the judgment in favor of the defendant and remanded the matter back to the trial court.  Plaintiff was to be given an opportunity to amend her complaint to attempt to state a claim for punitive damages under section 3340 as to any remaining causes of action.

Counsel for plaintiffs are therefore advised to consider whether, under a cause of action involving a claim for injury to an animal which may be considered “inhumane,” they may claim punitive damages under either, or both, section 3340 (for injuries to animals “in disregard of humanity”) or section 3284 (for “malice, oppression, or fraud”).  

Defendants should, of course, be prepared to test the applicability and scope of these allegations by way of demurrer and/or motion to strike.  They should be aware that while section 3340 may provide the basis for a claim for punitive damages, it should not be pled as a separate cause of action.

Depending on the facts pled, a defendant may also wish to make public policy arguments in presenting their defense.  On the one hand, public policy supports discouraging any licensed professional from making fraudulent misrepresentations.  On the other hand, the doctor in Berry was likely paid only a modest fee for his services, being in turn hired by the service plaintiff engage.  Moreover, even plaintiff admitted the doctor attempted to use a catheter before pivoting to the injection plaintiff alleges was inhumane.  Despite this, the defendant doctor now faces potentially ruinous liability, given that any award of punitive damages is uninsurable. (See Insurance Code section 533 prohibiting the insurability of claims based upon intentional conduct.)  Therefore, California public policy may not favor making it riskier for a veterinarian to attempt at-home euthanasia of a pet. 

1 - For a discussion of negligent versus intentional infliction of emotional distress, see our discussion of (Downey v. City of Riverside (April 26, 2023) D080377.

California landowner owes a duty of due care to tenant falling off roof attempting to enter premises after being locked-out (Razoumovitch v. Hudson Ave. LLC)

A landowner owes a broad duty of due care to almost anyone else, no matter the circumstances, unless California public policy clearly dictates a reason to depart from this broad rule

In California, Civil Code section 1714(a) defines the duty of due care owed in a broad fashion, failing to limit the persons to whom the duty is owed.  Rather, this section states vaguely that “everyone” owes a duty of due care “to another:” 

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

However, in the landmark case of Rowland v. Christian (1968) 69 Cal. 2d 108, the Supreme Court held that not all persons owe a duty of due care to all other persons in all circumstances.  As the Supreme Court explained 43 years later, Rowland provides there are several considerations which, when balanced by the court, may justify an exception to the general duty of reasonable care embodied in section 1714. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764.)  As Cabral set forth, these considerations, sometimes called the “Rowland factors” include: 

. . . [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Id., p. 771.)

According to Cabral, courts only balance the landmark “Rowland factors” and consider whether or not a duty of due care is owed where there are clear “public policy reasons” for doing.  This is because “in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ [Citations.]” (Cabral, 51 Cal. 4th at 771, quoting Rowland, 69 Cal. 2d at 112.)  Indeed, Cabral teaches that under any Rowland analysis of duty:

. . . [T]he Rowland factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, we have explained that the court's task in determining duty ‘is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed. . . . (Cabral, 51 Cal. 4th at 772.)

This broad formulation of duty has led California courts to effectively foreclose the ability of landowners who, by any measure of common sense, should not be held liable to have their case dismissed before trial.  This is so despite the obvious misbehavior of the plaintiff in causing the harm.  In other words, landowners must now defend actions where the actions of the plaintiff are indefensible because they cannot obtain summary judgment by making a “no duty” argument.  

As but one example, in Razoumovitch v. Hudson Ave. LLC (May 12, 2023) B316606, the Second District, Division Seven [1], issued an opinion holding a tenant who accesses a roof area after being locked out of their apartment is owed a “duty of care” by their landlord.  This is true even where the roof area is not designed to be accessed by tenants. [2]

Raasomovitch was injured while trying to break into his own residence and appeals after his landlord is granted summary judgment

There is no doubt Rasomvitch was on the roof not due to any invitation, whether express or implied, but, instead, because he needed to circumvent the locked door and find a more unusual method of entering the premises:

Razoumovitch explained [at deposition] he and two roommates lived on the top floor of their four-story apartment building, in a unit with a balcony. On the night of his fall, Razoumovitch and one of his roommates, Gonzalo Pugnaire, returned to the apartment at 1:30 a.m. after having drinks at a bar and discovered they had locked their keys in the apartment. 

Their third roommate was either not home or not responding to their attempts to get his attention. After repeatedly trying without success to reach the off-site building manager, Razoumovitch and Pugnaire went to the roof of the building where, attempting to enter their apartment through the balcony, Razoumovitch lowered himself over the edge of the roof, so that he hung from the edge with his feet dangling in the air. After inching his way along (what counsel for the 726 Hudson defendants called) a “roof outcropping” where he hung at an uncertain distance above his balcony, Razoumovitch attempted to drop onto the balcony’s thick masonry wall. On landing there, however, he lost his balance and fell. Asked if there was any emergency circumstance requiring him to get into his apartment, Razoumovitch answered, “Well, it was just needing to be home and, you know, have a place to sleep.” The 726 Hudson defendants asserted Razoumovitch admitted “there was no emergency or pressing need for him to immediately access his apartment that night . . . . (Id., pp. 3-4.)

Razoumovitch argued the landlord should have restricted his access to the roof, which access was made necessary, of course, because Razoumovitch had been locked out of his apartment.  Said plaintiff would not utilize the services of a locksmith or wait until the daytime when the landlord could be contacted; in fact, he insisted on attempting to enter the apartment by way of dangling from the roof and then argued the landlord should have “warned” him this was dangerous:

[Razoumovitch] alleged the defendants “were responsible for creating the dangerous condition that caused [his] injuries” and failed to warn him of any dangerous condition. Specifically, he alleged they had not sufficiently restricted access to the building’s roof, had not placed sufficient barriers around the roof’s perimeter, and had not placed an alarm or other device on the roof-access door that would have warned them that someone was accessing the roof. (Id., p. 2.)

The Hon. Audra Mori of the Los Angeles County Superior Court granted a motion for summary judgment brought by the defendant landowners.  Plaintiff appealed, and Justices Segal and his colleagues in the Second District reversed.

Public policy does not indicate there should be an exception to the rule a landowner owes a duty even though the tenant was on the roof without the encouragement of his landlord

Razoumovitch noted the defense had attempted to apply the analysis of duty to the specific facts of the case, an approach no doubt followed by many other jurisdictions and one which might appear to be the approach most logical.  The Second District, however, characterized this as a “mistake” and found these specific facts not dispositive.  Rather, according to its reading of Cabral and Rowland, a court should instead “consider whether carving out an entire category of cases from that general duty rule is justified by clear considerations of [public] policy. (Razoumovitch, p. 14, citing to T. L. v. City Ambulance (2022) 83 Cal. App. 5th 864, at 876.)  Razoumovitch did not, however, sufficiently discuss how one would decide whether the facts here — a tenant who is locked out making a foolish attempt to enter an apartment via the roof — fall within one “category of cases.”  In other words, how may one distinguish between a class of cases where a duty is owed versus another category, where a duty is not, without considering the “specific facts” of that case.

Razoumovitch thus concluded the general duty of due care applied here because the defense had not shown there were clear public policy considerations that indicated otherwise.  While the Second District did discuss and distinguish other case law cited by the defense it did not discuss in any real detail California public policy vis a vis the bizarre behavior of the plaintiff.  All of the following appear to indicate that a logical and fair consideration of public policy does not favor permitting recovery by a plaintiff such as Razoumovitch:

• Plaintiff caused this situation because he became locked out of his apartment

• The landlord gave no encouragement to use the roof area in question

• There is no indication the landlord has promised to provide 24-hour “lockout service” or, for that matter, that plaintiff paid for such as part of his rent
• There may have been other roommates in the apartment at the time plaintiff attempted to enter
• Plaintiff had been drinking at the time of the incident
• Despite this, plaintiff attempted, late at night, a move that required him to lower himself from the roof and then dangle his feet in the air

Razoumovitch did discuss the oft-cited proposition that someone is not owned a duty of due in regards to warning of an obvious defect.  But the court also noted this rule has a crucial exception and does not apply where the injury is “foreseeable” because the plaintiff has a “necessity” to encounter the harm. (Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, at 673.)  Of course, it may be obvious why this exception for the necessity to encouter an obvious danger should not apply to Razoumovitch, as he admitted there was no medical, safety, or pending emergency requiring him to enter the apartment and, therefore, he could have spent the night anywhere else he chose.  Still, the Razoumovitch court somehow found Kinsman, where the plaintiff was exposed to asbestos while working at an oil refinery facility, relevant as to whether a duty was owed to warn Razoumovitch of the obvious danger from the roof.  The Second District therefore tersely stated the defendants “do not address this exception to the general rule that a landowner has no duty to remedy or warn of an obvious danger” and found the defendants owed plaintiff a duty of due care. (Razoumovitch, p. 17.)

The appellate court also held defendants had not shown they were entitled to summary judgment on the grounds they were not the proximate cause of the harm

Razoumovitch also discussed the defense argument that they were not the “proximate cause” of the harm because the injury was not “foreseeable.”  Of course, proximate cause is ordinarily considered a legal issue, this prong of caution being distinguished from “cause in fact,” which requires consideration of disputed facts.  Nevertheless, Razoumovitch found that here the issue of proximate cause could not be decided as a matter of law “on the record here,” noting at page 19 that it may have been ”necessary” for plaintiff to attempt to access his balcony by way of the roof:

. . . [E]vidence regarding the proximity of Razoumovitch’s balcony to the edge of the roof and the evidence tending to show at least some degree of practical necessity for entering his apartment through the balcony, causation was a factual issue. [3]

1 -The opinion by Justice Segal was joined by Justices Perluss and Feuer 

2 - One could imagine a rooftop area developed for the use of tenants, but there here was no allegation there was a rooftop garden or deck designed for relaxation or recreation

3 - While the court did not expressly adopt a rule a landlord owes a duty to provide a “lockout” service at all times, the fact the court mentioned this argument multiple times shows some at least sympathy for the situation plaintiff caused for himself.

Condo tenant owes no duty to visitors to remedy defect in common area (Moses v. McKeever)

 

Appellate court rejects claim tenant owes a duty to visitors because they have “implied control” over the porch owned by the homeowner association

The First District has held a tenant who does not have express control over the common area in a condominium association does not have a duty to either maintain this area or warn his invitees of any defective or dangerous condition. (Moses v. McKeever (May 5, 2023) A164405,)  As Justice Swope explained, the scope of the duty owed by a tenant as to common areas was dispositive and plaintiff Moses therefore could not state a claim for negligence.  In summary, Moses found the defendant tenant was entitled to summary judgment as to the entire complaint.

Plaintiff brought her claim after she fell while leaving the defendant’s residence:

. . . [Plaintiff] Moses provided her declaration stating that, upon her arrival to Roger-McKeever’s condominium, she mentioned to Roger-McKeever that the entryway was dark. Roger-McKeever acknowledged the issue and “was apologetic indicating that there was an electrical problem with the porch light.” According to Moses’s declaration, Roger-McKeever explained that her landlord had not been responsive in repairing the light. A photograph attached to the declaration depicted three steps leading up and away from a street sidewalk and to a short walkway that ended at a door to Roger- McKeever’s condominium (the entryway or walkway). Moses stated in her declaration that when she was leaving the condominium, she was not able to see the second step and lost her footing and fell. She also provided a declaration from a mechanical engineer, who opined that the steps were “grossly” out of compliance with applicable building code, and that the absence of a handrail and the riser heights of the steps were probable causes of the accident. (Moses, p. 3.)

Defendant maintained that, as a tenant, he had no duty to control the area outside his leased premises, especially as the lease gave him responsibility for maintaining any area outside the actual unit.  The trial court granted summary judgment in his favor and plaintiff appealed.  The appellate court upheld the judgment in favor of the defendant/tenant. [1]

  

Specifically, Moses found that a tenant whose lease gives neither the right nor responsibility to maintain a “common area” does not owe a duty to prevent or warn regarding any dangerous conditions over which the tenant has no control.  This is true even as to someone  invited to the premises, such as plaintiff.

  

Even under the most expansive view of duty, some sort of "control" of the premises is necessary to impose liability

Moses distinguished prior case law such as Alcarez v. Vece (1997) 14 Cal. 4^th 1149.  While ownership certainly is an indicia of control, lack of ownership does not absolve a defendant of responsibility for areas which over which they may exercise at least some control.  Plaintiff Alcarez fell upon a landscaped area whose ownership was unclear; however, whether or not the defendant owned this area or not, he owned the land adjoining this area.  Justice George wrote for a four to three majority which found an adjoining landowner potentially liable for a slip and fall despite lack of clear ownership where the landowner’s agents mowed the lawn and otherwise may have had some sort of “control” over this area.

  

Alcarez, of course, has led to a plethora of attempts by the plaintiffs’ bar to expand liability to include adjoining landowners to situations that are, under any logical analysis, patently unfair.  Indeed, Alcarez is often cited as providing for liability so expansive such includes not only the actual landowner but also someone who owns or maintains the premises adjacent to the area where plaintiff suffers harm. [2]

 

Unfortunately, trial courts often take this gambit and cite to Alcarez as a reason to not give full consideration to an adjoining tenant or landowner’s request for summary judgment, misreading Alcarez as providing for at least potential liability merely because the maintenance of one property might somehow spill over to the adjoining premises.  This includes, for example, landscape maintenance extending just beyond the property line.  This is so despite the fact Alcarez said:

. . . [T]he simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. (14 Cal. 4th at 1167.)

  

The problem, of course, is that in Alcarez the Supreme Court undermined this limitation by immediately adding, “[b]ut it cannot be doubted that such evidence is relevant on the issue of control,” strongly implying that whether such “neighborly maintenance” constitutes “control” is a factual issue. (Id.)  This in turn means a landowner foolish enough to tempt liability by performing such a neighborly act must therefore undergo the time and expense of a trial simply because they have performed a good deed and therefore cannot obtain dismissal by a motion for summary judgment. 

However, in Moses the Hon. Delbert C. Gee of the Alameda County Superior Court did not agree with plaintiff’s overly-broad interpretation of Alcarez. The appellate court unanimously affirmed the grant of summary judgment, readily distinguishing Alcarez and the other case law cited by the plaintiff.  Moses makes clear that any liability based upon Alcarez still requires the plaintiff show the crucial element of control. 

 

Therefore, contrary to what plaintiff argued, Moses held the possibility the defendant could have prevented the harm on the adjoining area controlled by another is not sufficient to impose liability:

To establish a duty of care under Alcaraz, it is insufficient to speculate that Roger-McKeever could have taken certain actions to prevent injury to Moses without showing that Roger-McKeever had actual control over the area where the injury occurred. “The mere possibility of influencing or affecting the condition of property owned or possessed by others does not constitute ‘control’ of such property.” (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725–726.) To hold otherwise would undermine the general rule that a defendant is not liable for failing to protect the potential victim if he or she did not contribute to creating the risk. (Brown v. USA Taekwondo, supra, 11 Cal.5th at p. 214.) (Moses, p. 12.)

Moses rejected the idea inviting plaintiff meant the defendant "impliedly adopted" the area where plaintiff fell

Given that plaintiff could show no actual  control over the common-area plaintiff stressed that the circumstances showed “implied” control:

Moses’s primary argument is that despite Roger-McKeever’s lack of control over that area, Roger-McKeever owed her a duty of care because Roger-McKeever “impliedly adopted” the walkway by inviting Moses to her condominium. (Moses, p. 11.)

Moses therefore considered Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal. App. 5th 843, which had found that where a contractor had “impliedly adopted” the premises of a commercial enterprise, said enterprise could be held liable for the negligence of its contractor.  However, Moses found that even if such a precedent was correctly decided it should be limited to a "commercial" context:

We have not found, and the parties have not provided, any cases that extend Hassaine’s “impliedly adopted” rule to non-commercial contexts. Moreover, even in cases involving a commercial enterprise, “control” is still a required element where the business invitee was injured outside the business premises. [Citation.] (Moses, p. 16.)

A crucial difference, of course, between a tenant in a residential context and the operator of a business is the “special relationship” between the business and its patrons. (Moses, pp. 16-17.) [2]   Defendant in Moses therefore owed plaintiff no duty of due care to have prevented or warned about the harm from the porch step, making it irrelevant that plaintiff that submitted evidence supposedly showing defendant knew the lack of lighting on the porch was "dangerous."  Likewise, the fact the common area was allegedly out of compliance with the relevant building code did not expand the scope of the tenant’s duty to maintain the area he leased, tenant being a mere leaseholder and not an owner. [3]

1 - Apparently the owner of the condominium was not a party to the suit at the time the tenant brought his motion.
2 - Alcarez may be the case most miscited by the California Plaintiffs’ Bar.  This is in terms of 1) misleading the trial court as to the facts in Alcarez, and 2) brazen attempts to apply its holding to situations where its rationale cannot possibly apply.  Such arguments ignore both public policy and the extensive discussion in Alcarez, which does not contemplate an expansion of tort liability to include all adjoining landowners.
3 - The question arises as to the potential liability of the owner of the condominium.  An owner may have less knowledge as to the lack of lighting in the common area outside the unit than would a tenant supposing, for example, that a lighting fixture owned by the association has just malfunctioned.  Still, a court might find the owner of the premises, as opposed to a tenant, has a greater duty to communicate with the association as to known defects.  Indeed, the CC&Rs (Codes, Covenants, and Restrictions) of the association may be pertinent to show the responsibilities of the individual unit owners versus the association.