Yet another notice-of-claim case, this one involving waiver-by-litigation.

Ponce’s house burned down a few days after the house next door did. He blamed un-extinguished embers that escaped through openings made by the firefighters. He filed a notice of claim but did so 16 days late – 196 days rather than 180. Then he filed suit. The fire district litigated it for a year before moving for summary judgment on the notice issue. The trial court granted it.

The Court of Appeals reverses. Although the District had not initiated any discovery it had participated in a lot of it, much of it having nothing to do with the notice issue. It also did such things as to move for change of venue. And although it claimed that it needed Ponce’s deposition to support its notice defense, it argued the motion in such a way that what he said didn’t matter. It also contended that it needed the deposition of Ponce’s expert in aid of another argument it made in its motion for summary judgment. But the notice issue didn’t have to wait for that; there was no reason that it could not have been resolved promptly.

So the District said that summary judgment was proper on that other argument, a fact-dependent claim that Ponce’s expert wasn’t qualified. The Court of Appeals disagrees. Judgment reversed.

(link to opinion)

                                             THIS OPINION HAS BEEN VACATED

This presents the issue raised in Melendez but this panel comes to the opposite conclusion.

Newman had refused an offer of UIM coverage but argued that the offer was invalid because it didn’t quote a premium. The trial court disagreed and gave Cornerstone summary judgment. Then, in Melendez, this court agreed with the argument. Newman got a different panel, though. Apparently it took a hint from the fact that the Supreme Court had later re-designated Melendez a memorandum (or took some other hint; how information works its way along the judicial grapevine is not for outsiders to know – in fact, you’re not even supposed to know that there is one).  The court concludes that the statute doesn’t require a premium quote with the offer.

Except to say that Newman relied on it the court does not mention Melendez. Whether that is intended as a comment is an exercise for the reader. Melendez is a memo now, so there’s an excuse.

(link to opinion)

This is a garden-variety appellate screwup. That there are such things normally reflects badly on the profession – so badly that the court has changed the rules. The new ones went into effect on January 1;  this is the first opinion we’ve seen that mentions them. But they didn’t help this plaintiff – who, fortunately for the profession, was pro per.

Lopez appealed a minute entry. He then filed a second notice of appeal after the judgment was entered – but it was a week late. The Barassi rule didn’t save him because the entry of judgment wasn’t merely ministerial – the trial judge still had a ruling to make, on fees, after the minute entry.

The court (which was addressing jurisdiction sua sponte) then looked at new rule 9(b)(2)(B), which basically says that a boneheadedly-filed notice of appeal will be deemed to have been filed when it should have been. (This will of course end all confusion and error, and we will certainly not see a new line of cases explaining what the new rules mean.) But the new rules apply to cases “pending” on January 1. The court says, citing Black’s, that  “a case that has become final is no longer ‘pending’ . . .” And this case became final when the time to appeal the judgment ran out, in June 2013. Appeal dismissed.

The rules weren’t changed for the benefit of pro pers, though. Experience (and a case like this, of which we’ve blogged several) teaches that quite a number of practicing lawyers don’t know the difference between a minute entry and a judgment – and can’t reliably count or calendar thirty days – any better than poor Mr. Lopez. Dumbing procedure down has for decades been the court’s response to the slender competence of so many of the lawyers it foists on the public. It hasn’t worked.

(link to opinion)