Ruffino v. Lokosky (CA1 7/12/18)

The court discusses service of process in the context of the internet.

Plaintiff sued because of some allegedly defamatory posts by Defendant on Defendant’s web site. When his process server failed to make service he moved for alternative service by mail. The trial court denied the motion, spotting the fact that the process server — despite a return that seemed to show a lot of effort — hadn’t really tried very hard. Plaintiff made one more desultory try then served by publication and took default judgment. He knew defendant’s email address and phone number and knew she was active on social media. And he had been in internet contact with her before the suit. But he didn’t try to notify her in any of those ways nor ask to serve electronically.

Defendant moved to set aside the judgment. After an evidentiary hearing the trial court granted the motion, finding that Defendant was not evading service and that service attempts were insufficient. Defendant appealed.

The Court of Appeals affirms. Plaintiff argued that the court should review de novo, presumably to avoid the lower court’s findings. The court points out that it reviews Rule 60 motions for abuse of discretion and clearly-erroneous findings.

The rule on service by publication (4.1(l)) requires that the plaintiff be unable to find the address after diligent effort or that the defendant is evading service, and also that service by publication is “the best means practicable in the circumstances for providing the person with notice.” (Some of us remember when our rules were written in English rather than in semi-grammatical jargon.) For some reason the trial court made a finding on only one of those things — that Defendant wasn’t evading. But there were only three possible addresses, the process server admitted that she thought one of them was the right address, and Plaintiff had the means of contacting Defendant to confirm it but didn’t. “A reasonably diligent effort . . . would have included reaching out to [Plaintiff] via telephone, email, or even social media to verify her correct address.” You can find telephone cases that are years old but the email/social media aspects of this are somewhat novel.

The court uses them with the “best means practicable” requirement as well. It says that even if there had been diligent effort and/or evasion of service, “given our present society . . . modern methods of communication, especially email, were more likely to give . . . notice of a suit than publication.” (The telephone is an even better way but that’s not the point of the opinion.)

The court adds archly, in an unnecessary and ill-considered comment, that the newspaper used for publication was distributed in a rural area 70 miles from Defendant’s Scottsdale address. But what of the very next section of Rule 4.1(l), which specifically allows service “in a newspaper published in the county where the action is pending,” as it and its predecessors have for many years? Would using a “closer” paper have overcome the failure to make a phone call or send an email? Is “a newspaper published in the county” no longer good enough? If so, why does the rule still say that? If not, on what basis should defendent select a newspaper — by trying to read the plaintiff’s mind about which one (if any, nowadays) she’s most likely to read? (And if that’s the standard, why don’t we require publication to be done on the paper’s front page rather than rather than in parts that nobody reads anyway?) Granted, the Republic needs the income; but the niche papers that make a living printing legal notices will be sorely disappointed.

There’s not actually much new here except the reminder to pursue internet contacts. And the moral is the old one: you need to direct and assist your process servers actively, not just let them go through their comfortable motions. The dogged, clever, self-starting process servers you read stories about presumably exist but you will never find one.

(Opinion: Ruffino v. Lokosky)


Kopp v. Physician Group of Arizona (7/9/18)

The Supreme Court changes the law on the effect of dismissal.

Plaintiffs sued a doctor and a hospital for malpractice; against the hospital they alleged both respondeat superior and independent negligence in hiring and supervision. They settled with the doctor and dismissed him with prejudice. The hospital then moved for summary judgment, arguing that the claims against it were derivative. The trial court granted the motion; the Court of Appeals affirmed.

The Supreme Court reverses.

“Derivative liability is no broader than vicarious liability.” Even though the claims of independent negligence against the hospital depend on proving the doctor negligent they are not vicarious.

But, the hospital also argued, dismissal of the doctor was an adjudication on the merits against him so he can’t be proved negligent. The lower courts had followed Torres (App. 1971), holding that allegations against the hospital don’t survive dismissal of the doctor if proving the doctor’s negligence is an element of those allegations. The Supreme Court cites Chaney Building (1986) to the effect that collateral estoppel applies only to facts or issues actually litigated. Stipulated judgments aren’t litigated and bind others only if the settlement agreement said so. The court recognizes that the law since DeGraff (1945) has been otherwise; “we disavow our holding in DeGraff insofar as that case and its progeny conclude that a stipulated dismissal with prejudice ‘operate[s] as an adjudication that [the dismissed party] was not negligent.'”

At least the court acknowledges DeGraff. In all other respects it follows the script written years ago by one of the people involved in this case: this opinion isn’t radically changing existing law, you understand, that was really done years ago by another case (Chaney Building in this performance of the play) so this one is simply following the precedent, never mind that the supposed precedent had never before been read that way.

(Opinion: Kopp v. Physician Group)


Kopacz v. Banner Health (CA1 7/5/18)

This malpractice case breaks no new legal ground but contains a practice pointer and illustrates a modern quirk of Rule 56.

Plaintiff had complications following cardiac catheterization by Defendant, resulting in surgeries and a stay in a rehab hospital. Her lawsuit came after the limitations period so Defendant moved for summary judgment. Plaintiff argued that the complications had rendered her unable to understand what was happening, tolling the statute. The trial court granted the motion.

The Court of Appeals affirms.

Mental disability may constitute “unsound mind” under the tolling statute (12-502). But the showing requires “hard evidence” of inability to manage one’s affairs or to understand one’s rights. Plaintiff submitted conclusory affidavits from herself and her daughter to the effect that she’d been too sick to consider suit. The court considers them insufficient, especially in view of “hard evidence” in the hospital records showing that Plaintiff was alert, oriented, and aware of her injury just a few days after the catheterization. (Was the court weighing evidence? Well, yeah; affidavits are either conclusory or not on their face, regardless of other evidence.)

Plaintiff argued that even if her evidence didn’t qualify her for “unsound mind” it at least triggered the discovery rule. But the discovery rule deals with when information revealing the cause of action was available. In this case that was shortly after the incident. Whether Plaintiff had the mental ability to evaluate it is an “unsound mind” question.

The take-away is that mental impairment caused by the tort can indeed extend the time for suit but you need some pretty clear evidence in the medical record, a good expert opinion, or both.

After the trial judge’s ruling Plaintiff asked for a more specific statement, arguing that the minute entry didn’t address an issue discussed at oral argument. Rule 56(a) says that the trial court “should” state the reasons for its ruling on summary judgment. This court’s minute entry said that the action had accrued on a particular date — which was more than two years before the Complaint — and that the action was therefore barred. The Court of Appeals says that “even if we were to interpret the word ‘should’ in Rule 56(a) as imposing a requirement — a proposition for which [Plaintiff] offers no authority” this minute entry was sufficient.

So the part about stating reasons isn’t a requirement and can be satisfied with a truism rather than a reason. And for once we’re not being sarcastic — that’s a reasonable and appropriate way to treat the sentence. Why, then, does it exist? Well, it didn’t always.

Once upon a time — long, long ago (i.e., when we started practicing) — a good trial judge would grant summary judgment with a minute entry that said “The motion is GRANTED.” The judges realized that since they could be affirmed for any available reason, to focus attention on a subset of reasons increased the chance of reversal. But that also had the effect of increasing appellate workload, and for the same reason: although review is de novo, both the parties and the court tend to consider primarily — and often exclusively — reasons given by the trial judge. And so the “should” sentence was insinuated into the law, as a way of narrowing review in practice but not in theory. (Those who did so presumably told themselves that they were increasing judicial efficiency, a standard excuse for cutting corners.)