Empire West v. Talamante (5/7/14)

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The court here makes an arguably rather subtle distinction rather than allow a party to play “gotcha” with the attorney-client privilege.

DOS Land Holdings sued Empire for breach of contract because Empire, a title company, allegedly fouled up the legal description of a property by leaving out an easement. The Complaint alleged (for reasons unexplained, its counsel essentially admitting that the language was surplusage) that DOS “reasonably believed” that the closing documents included the easement. Empire seized on this language, arguing that it must refer to or rely on the advice of counsel and that DOS had thereby waived the privilege. The trial court denied Empire’s motion to discover DOS’s communications with counsel but the Court of Appeals accepted special action and, in an unpublished opinion, allowed the discovery. The Supreme Court accepted review; this opinion overturns the Court of Appeals.

Empire relied on State Farm v. Lee (2000), in which the court held that State Farm waived the privilege by alleging, in defending a bad-faith case, that its employees reasonably believed that its interpretation of a policy provision was correct. The point of this opinion is to explain why State Farm’s reasonable belief is different from DOS’s reasonable belief. “[M]erely alleging the reasonableness of one’s beliefs does not, in itself, waive the privilege; rather, the litigant must advance a subjective evaluation or understanding that incorporates the advice of counsel.” DOS’s reasonable belief was not an essential element of its cause of action, the breach-of-contract claim does not rely on its mental state or subjective knowledge. Mentioning  reasonable belief in the Complaint did not “interject” advice of counsel into the case; “[w]e will not find a waiver based merely on imprecise or superfluous pleading.” As to State Farm, the court seems to feel that it was using its employee’s beliefs as a sword  while trying to use the privilege as a shield against discovery of what they actually knew, whereas this is a simple contract case in which Empire either did or didn’t do what it was supposed to do.

Whether the distinction works we leave the the reader. The opinion itself is reasonably well done; it opens well and is (by modern standards) brief.

(link to opinion)

Guerra v. State et al. (CA1 5/6/14)

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THIS OPINION HAS BEEN VACATED

This is a wrongful-non-death case.

After a serious car crash involving several victims the DPS told a family that their daughter had died; in fact she had survived. The family celebrated the miracle of her deliverance by suing the DPS and all the officers involved for negligence, negligent training, and intentional infliction. The trial court granted the defendants summary judgment. The Court of Appeals affirms on the negligent training and intentional infliction counts, for which there was basically no evidence, but reverses on negligence.

The court tells us, in a footnote, that the plaintiffs argument was based on a particular section of the Restatement that an earlier case had said was “clearly inapplicable” to this type of situation. So the court sidesteps this minor annoyance and decides the case on a different basis.

That earlier case (Vasquez 2008), among others, held that the state has no duty to identify victims accurately. The court now holds, though, that by telling the next-of-kin of its identification the state assumes a duty to them. “Given [sic] the primary purpose of the notification is to benefit the survivors, coupled with the weight society gives law enforcement’s statements, and the inarguably devastating emotional impact a family member’s death has on survivors, when the State undertakes the actual NOK notification it must communicate the information with reasonable care being given to the accuracy of what is conveyed.”  The court does not use that Restatement provision, nor for that matter much other law that clearly points to such a conclusion.

In keeping with CA1 tradition the opinion recites facts at length, many of which have nothing to do with the holding. The court’s presentation gives the  impression, perhaps deliberately, that rather than acting negligently the defendants were doing their best under difficult circumstances.

(link to opinion)

Barkhurst v. Kingsmen (CA1/5/1/14)

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A minor case about duty – minor because the plaintiff’s argument was pretty thin – that also makes a curious comment about appeal fees.

Barkhurst was assaulted by a drunken minor in the parking lot of a bar in Kingman. This happened during a dance the bar put on during the Kingman rodeo. The Kingsmen is a volunteer group that organizes the rodeo; its web site had listed the dance along with other events put on by rodeo sponsors. Barkhurst sued it on a dram shop allegation. The trial court granted it summary judgment. The Court of Appeals affirms.

It holds that the Kingsmen had no duty to Barkhurst. “As a general matter, there is no duty to prevent a third person from causing harm to another unless the defendant stands in a special relationship with the third person or with the victim.” The Kingsmen did not control the bar or its activities, which distinguishes the cases Barkhurst relied on. Public policy does not “create a duty upon [sic] persons who sponsor and promote events at which liquor is served to prevent serving underage patrons.”

Barkhurst also argued on appeal that the bar was the apparent agent of the Kingsmen. But he hadn’t done so in the trial court so the Court of Appeals declines to address the argument.

The court denies the Kingsmen’s request for a fee award, though, for the reason that to get that the appeal must be “groundless and not made in good faith.” Apparently the court could agree with the “groundless” part but “nothing in the record indicates the appeal was not pursued in good faith.” One wonders what indicia of bad faith the courts expect normally to show up in the record.

(link to opinion)