Ahmad v. State (CA1 11/13/18)

We reviewed the first opinion in this case here; go there for the facts. The Supreme Court vacated that and remanded for reconsideration in light of Soto v. Sacco (2017). It reaches the same result as the original, for essentially the same reasons.

Soto says that a remittitur order must be specific. This one wasn’t, so the court again reverses it. But its original opinion said much same thing (Soto admitted that it broke no new ground) so we wonder whether that’s the part of Soto that the Supreme Court had in mind when vacating.

The court again explains that $30 million for the loss of an adult son is just fine because the statute says “fair and just” and this “provides ‘a very broad base for the measure of damages.'” Perhaps the part of Soto that the Supreme Court had in mind was the part that said that “fair and just” is no broader than the normal personal-injury standard.

Or perhaps it was the part about comps. The original opinion had argued that comparable verdicts shouldn’t be considered; Soto says that they can be but are marginally relevant. The new opinion acknowledges that but, predictably, comes down on the side of “marginal.”

The new opinion says specifically what we inferred from the original: Defendant argued that the award included a punitive component. “[P]laintiffs’ counsel potentially implicated punitive damages by suggesting that the jury was tasked with preventing future deaths.” But the trial court overruled the objection and its order of remittitur didn’t specifically find any aspect of the award puntitive. “The jury’s conduct does not suggest” that it didn’t follow the instructions. Since there was apparently no evidence of the jury’s conduct other than its award, the theory seems to be that $30 million is proof of its own validity.

Which is consistent with the statement that “[T]he $30 million sum for the two parents, combined with the attribution of 5% of the fault to the state, suggests that the verdict was the result of a temperate deliberative process.” Unless merely fillng out the form of verdict is a sign of temperence and deliberation, the statement assumes its own conclusion. (In fairness, it is of course possible to read deliberation into these numbers. The problem is that the deliberation they suggest is about how to give the Plaintiffs $1.5 million even though the State was only 5% at fault.)


Doneson v. Farmers Insurance (CA2 10/3/18)

This little insurance case is interesting mostly for its reminder about the parol evidence rule. It has also that rarest of things, a good footnote.

Plaintiff was injured in a car accident. Workers comp paid part of his medical bills but he had to repay that amount, per the workers comp statute, when he recovered from the third-party tortfeasor. He sought med pay from his own carrier, Farmers. Farmers denied the claim because its med pay provision excluded “bodily injury . . . during the course of employment if workers’ or workmen’s compensation benefits are required.” Plaintiff sued, arguing that since he had to repay the benefits they were not “required.” The trial court granted Farmers’ motion to dismiss. Plaintiff appealed.

The Court of Appeals affirms. It concludes that the policy language is not reasonably susceptible to Plaintiff’s interpretation. Plaintiff had a Nevada case dealing with an exclusion that covered workers comp “to the extent . . . required to be payable” by concluding that “payable” was ambiguous. But Farmers had a California case in which the exclusion said “payable or required to be provided” concluding that while “payable” alone might be ambiguous, “required” was not.

Plaintiff also argued that the trial court should have considered parol evidence. But under Taylor (1993) “the party seeking to introduce extrinsic evidence must show that the language of the contract is ‘reasonably susceptible’ to their proposed interpretation.”

There is one footnote in this opinion and, while we normally dislike them, this one is appropriate. Plaintiff tried to cite a trial court ruling in another case. The footnote points out that it “has no precedential value and we disregard it.” A slap on the hand is warranted but has no proper place in the text, thus the footnote.

(Opinion: Doneson v. Farmers)


Cook v. Grebe (9/11/18)

This little case, in addition to illustrating practice pointers about fee requests that apparently need  illustrating, is an example of how judicial fashion changes. Thirty years ago this opinion might have been tossed out in three pages, especially in Division Two. Ten years ago it would have taken twelve. This year it takes just over six, which is about right.

Plaintiff claimed adverse possession and also sued for a private nuisance. Defendant counterclaimed to quiet title and also alleged conversion, unjust enrichment, and trespass. Defendant won the adverse possession/quiet title issues, Plaintiff the rest.  (One of the ways the opinion saves space is to omit the underlying facts. They have nothing to do with the issue on appeal but even a few years ago that would not have prevented a factual recitation equally lengthy and useless.)

Defendant then moved for an $82,000 fee award under 12-1103 (quiet title). Plaintiff objected, arguing that Defendant wasn’t the prevailing party — that the case was basically a “draw” — and that she shouldn’t recover fees for claims Plaintiff won. The trial court found Defendant entitled to fees under 1103 and awarded $50,000.

The Court of Appeals affirms. Under 1103 “the determination of who is the prevailing party . . . turns on whether a party successfully quieted title, regardless of whether claims that do not involve quieting title are included in the same lawsuit.”

Now the practice pointers.  Fees under 1103 are discretionary — but the court notes that Plaintiff didn’t argue that. His argument wasn’t that, even if Defendant were the prevailing party, the trial court should use its discretion under these circumstances to deny fees.  (Is the court’s mentioning this the sort of we’re-smarter-than-you comment that we complained about the other day? Not really; the case discussed the court’s discretion and it’s fair to mention that the full extent of that discretion was not requested. And the court’s comment was, perhaps deliberately, worded in a slightly elliptical fashion.)

Instead Plaintiff argued vaguely that the amount of the request was unreasonable, without analyzing Defendant’s China Doll affidavit and pointing out which fees were unreasonable or unrelated to quiet title. Defendant showed nothing in the record to indicate that the trial court abused its discretion.

Of course the fact that the trial court awarded only about 40% of the requested fees killed this appeal once the prevailing-party issue was decided. What did Defendant say about that reduction? More of the above but also that it was arbitrary because “neither party argued for a 40% reduction.” Which adds a final practice pointer: any ill-considered idiocies floated in your brief or at oral argument will quite likely be used against you in an appellate court of law.

(Opinion: Cook v. Griebe)