Reyes v. Gilbert (CA1 7/25/19)

There is a nuggest here which makes some sense, which is that a new trial for failure to make disclosure or discovery has to be based on disclosure or discovery. Otherwise we’re not sure that the court’s analysis is particularly artful.

Plaintiff was hurt when a car in which he was a passenger ran off the road into a canal. He sued the Town of Gilbert alleging inadequate signs and barricades. He lost at trial but won his motion for new trial based on the Town’s failure to disclose an engineering report concerning the road. The Town appealed.

The Court of Appeals reverses and remands with instructions to reinstate the verdict.

The opinion recounts at length the facts of the accident (the driver was drunk and reckless), the facts of the entire evening of the accident, and, in one of the eleven footnotes, the facts of the driver’s criminal punishment. None has anything to do with the issue or the holding. Perhaps someone found them interesting, though they are standard teenage-one-car-accident stuff. Or perhaps this is another example of a phenomenon we remarked on recently — trying to make the holding emotionally satisfying — since the driver could perhaps have crashed regardless of how the Town signed the road. (Of course a causation defense, especially if there were a general verdict, could have raised issues in this appeal but this blog entry is going to be long enough as it is so we won’t worry about why they’re not here.)

The court gives us a lengthy section on “Applicable Law and Standard of Review.” The “applicable law” cited is that roads needn’t be perfectly safe and that their design can assume that drivers will follow the rules of the road. How that law is “applicable” to an appeal about new trial under Rule 26.1 is not explained. As for the standard-of-review section, we have said too much about those to repeat that rant here. This particular one is clearly intended to justify the result rather than to explain, however unnecessarily, the parameters of analysis.

There was a traffic study of the area from 2003, made in connection with a then-proposed subdivision. Plaintiff had filed a public-records request for studies of the road. The Town didn’t provide the 2003 study in response to the request nor under Rule 26.1. It apparently wasn’t clear whether the trial court granted new trial based on the request, on Rule 26.1, or on both. So the court addresses both.

A request for public documents is not a discovery request under the Rules of Civil Procedure. It is made under a statute that includes its own sanctions (39-121.02). It is thus not a basis for new trial even if the statue were violated.

Regarding Rule 26.1 the court examines the facts and the allegations and decides that the 2003 report had nothing to do with the case or “at best . . . contained marginally useful information” and so the Town “had no reason” to disclose it. The trial court therefore erred. What kind of error, you ask? Was it an error of law? Was there no substantial evidence to support it? Was it arbitrary and unreasonable? The opinion’s standard-of-review section had raised all as possibilities. One would normally expect the court to identify which one it had picked, especially since its disagreement with the trial court sounds so much like one of fact. But it doesn’t.

The court then says that even if the Town violated Rule 26.1 there was no prejudice. The 2003 study didn’t “materially” contradict the town’s expert witness. As for “speculation” that the report supported an additional theory of negligence, that’s not prejudicial because Plaintiff and his expert could have come up with it on their own. (The court cites no authority for this; we assume that it didn’t look for any since the cases don’t necessarily say that.) Plaintiff can’t, therefore, have a new trial because letting him use a report that raises a new issue that the Town kept secret until after the trial would mean that his disclosure of the issue would be untimely. (Don’t believe us? Read the last part of ¶38.) So the trial court abused its discretion (at least here the court identifies a legal basis of error).

(Opinion: Reyes v. Gilbert)

 

 

Coffee v. Hon. Ryan-Touhill (CA1 6/20/19)

Rule 42.1(e) allows a change of judge “if the appellate decision requires a new trial.” What if the decision requires re-holding an evidentiary hearing?

After what sounds like a somewhat idiosyncratic evidentiary hearing the family court ordered a change in a parenting plan. Father took special action. The Court of Appeals accepted it and granted relief, ruling that the order “cannot stand” because Father was denied due process. It directed the trial court to hold a proper hearing, allowing Father to present certain evidence. Father then moved in the trial court for change of judge under Rule 42.1 (e) (remand for new trial). The judge denied it, opining that the Court of Appeals didn’t “reverse” her and didn’t order a new trial, and also that there was no evidence that she had any “ill-feelings” toward Father. Father again took special action. The trial judge (whose evident unwillingness to reconsider her ruling regardless of any new evidence did her cause no favors) apparently then suggested that she could not hold a hearing until the Court of Appeals revested jurisdiction.

The Court of Appeals accepts the special action.

Before addressing Rule 42 it discusses the jurisdictional question. It points out that a special action does not divest the trial court of jurisdiction. This is pure dicta — the action did not raise the question and everybody here had jurisdiction — but it seems that even trial judges need to be reminded. (So in theory the trial court could have held the new hearing since Father had not obtained from the Court of Appeals an order staying it. But as a practical matter the judge was in no hurry to do anything.)

Then the court grants relief. “Trial” includes a contested evidentiary hearing. Directing the lower court to “revisit the same . . . issue based on the same factors and new evidence” is the same as requiring a new trial. The rule requires no magic words such as “reversed” or “new trial.”

Nor does it require proof of judicial animus. “Actual bias is not required.” The potential for subconscious bias is enough.

The rule does require a “remand.” Although jurisdiction is not remanded in a special action, since the trial court does not lose it, “an order granting relief and directing additional evidentiary proceedings to redo an earlier proceeding is the functional equivalent of a remand.”

(Opinion: Coffee v. Hon. Ryan-Touhill)

 

Dashi v. Nissan (CA1 6/13/19)

The court rules that “implied obstacle preemption” precludes a tort claim for failure to equip a car with safety devices not required by the government. But the analysis is fact-and-circumstance intensive, focusing on the particular devices at issue here. Whatever other gadgets future plaintiffs decide in retrospect that they should have bought will apparently need to be litigated separately.

Plaintiff sued Nissan because its vehicle did not have certain braking systems, available in other cars, that she alleged rendered it defective and unreasonably dangerous. Nissan moved for summary judgment, arguing that NHTSA regulations — which make such systems optional — pre-empt the claim. The trial court granted the motion.

The Court of Appeals affirms, holding that the claim is impliedly preempted. “A federal agency may trigger implied obstacle preemption when it refuses to adopt a specific equipment standard in furtherance of a federal regulatory objective, thus deliberately leaving manufacturers with equipment alternatives.” The court recounts at length the NHTSA’s study of the devices and its decision that requiring them would inhibit the development of the technology. Then in recounts at more length the federal DOT’s “express views on implied preemption.” It concludes that allowing the common law to require the devices would create an obstacle to the full accomplishment of federal objectives.

The court finishes by distinguishing Plaintiff’s cases in favor of others. There is of course quite a number for both parties to choose from.

(Opinion: Dashi v. Nissan)