California Appellate Law Blog

A Demand for Private Contractual Arbitration Does Not Arise from Protected Activity Subject to Anti-SLAPP Motion

Danielle Arteaga — Thu, 30 Apr 2009 08:00:00 -0800

On April 17, 2009, the California Court of Appeal for the Fourth Appellate District, Division Three, issued its opinion in Century 21 Chamberlain & Associates v. Haberman, 09 C.D.O.S. 4609.

Century 21 filed an action against Haberman and Pacific West Association of Realtors (PWAR), arising from the sale of Haberman’s house. Century 21 asserted two causes of action: (1) account stated, arising from Haberman’s failure to pay on a loan secured by a deed of trust; and (2) declaratory relief, arising from Haberman and PWAR’s insistence that the parties arbitrate Century 21’s claims.

In response to Century 21’s complaint, Haberman filed an anti-SLAPP motion to strike the complaint, arguing that Century 21’s causes of action arose from Haberman’s constitutionally protected activity. The trial court denied Haberman’s motion, and the Court of Appeal affirmed.

The Court found that Century 21’s cause of action for account stated could not arise from protected activity, because it necessarily arose from Haberman’s failure to repay the loan as agreed. It also found that the cause of action for declaratory relief did not arise from protected activity. Although the cause of action arose from Haberman’s arbitration demand – arguably an exercise of free speech – the arbitration demand itself did not fit any of the four categories of protected activity enumerated in Code of Civil Procedure section 425.16. Private arbitration is not a judicial proceeding, but an alternative to it. It is also not an “official proceeding authorized by law”, because it is not subject to administrative mandate nor is it required by statute. Finally, a demand for private arbitration is neither a public issue nor an issue of public interest.

As the Court noted, “It would be anomalous if the anti-SLAPP statute could be used to strike a declaratory relief cause of action seeking to avoid arbitration. Generally, the court must determine whether a dispute is subject to contractual arbitration, unless the parties clearly and unmistakably agree otherwise. [Citations.] It would provide cold comfort to parties resisting arbitration to recognize their right to a judicial determination of arbitrability, yet strike their means for obtaining that determination before arbitration.”

Trial Court Has No Authority to Sanction Non-Party Insurer

Danielle Arteaga — Mon, 27 Apr 2009 08:00:00 -0800

The Court of Appeal for the Second Appellate District, Division Seven, issued an interesting decision this week regarding the importance of insurance adjusters attending mandatory settlement conferences and other court-ordered alternative dispute resolution dates.

Vidrio v. Hernandez 09 C.D.O.S. 4465 concerned a personal injury action by Vidrio against Hernandez (insured by Mercury) arising out of an automobile accident. The matter was mediated without resolution, and Hernandez’s counsel subsequently served Vidrio and another plaintiff with Code of Civil Procedure section 998 offers of $1,000 each.

The court then ordered the parties to participate in a mandatory settlement conference. Local court rules required that an adjuster with “full authority” to settle the case also attend. Mercury complied. However, in response to Vidrio’s offer to settle for $30,000, Hernandez and Mercury refused to increase their offer from the section 998 offers previously served.

The trial judge was incensed, and at a subsequent order to show cause hearing found that Mercury had failed to participate in the mandatory settlement conference in good faith. It sanctioned Mercury $1,500 payable to the court and $357.50 payable to Vidrio’s counsel.

The Court of Appeal overturned the sanctions award. It found that the only authority for the imposition of sanctions against a non-party insurance carrier came from Local Rule 2.30, allowing the court to sanction a party or non-party required to attend a mandatory settlement conference for an unexcused failure to do so. However, the Court of Appeal noted that nothing in that rule or any other applicable statute provided a proper basis for awarding sanctions for the failure to “participate meaningfully in settlement negotiations.” The Court of Appeal observed that “Hernandez filed an appropriate settlement conference statement; her lawyer and Mercury attended the conference and participated in it. While the trial court’s frustration at the parties’ lack of movement is understandable, no more was required.”

Attorney-Client Privilege Rulings to Become Appealable Collateral Orders?

Danielle Arteaga — Tue, 21 Apr 2009 12:39:47 -0800

In a recent article in The National Law Journal (reprinted in The Recorder on April 20, 2009), Michael P. Shea discussed the merits of permitting appellate review of orders denying claims of attorney-client privilege as immediately appealable collateral orders.

Mr. Shea makes a compelling case for this change, noting that certain federal courts already permit it; alternative remedies are ineffective (or worse); and no onslaught of appeals should result from a the change.

The Importance of Grammar and a Shout Out to SPOGG: The Society for Promotion of Good Grammar

Danielle Arteaga — Tue, 21 Apr 2009 12:25:47 -0800

I am a big fan of SPOGG, mostly because I teach legal research and writing courses to paralegal students on Wednesday nights, but also because I’m a little bit of a grammar nerd. If you are the red-pen-wielding type, you will be a fan of SPOGG, too.

Each quarter that I teach, I (vainly) try to impress upon my students the importance of understanding and following the rules of grammar in their legal writing by illustrating the consequences of not doing so. Generally, this lecture is received by a fair amount of whining, eye-rolling and an I-already-know-this exasperation. The complaining is then followed by papers plagued with sentence fragments and comma splices, a failure of subject-verb agreement, an obvious attempt to spell-check followed by an equally obvious failure to proofread, and a sometimes hilarious attempt to “over-write” that ends in the misuse of words the student cannot possibly have consulted a dictionary for definition before using.

So, I decided I needed some back-up. If my students did not believe me, perhaps they would believe the learned justices in the appellate courts who had taken an attorney or two to task for sloppy brief writing.

In my quest for assistance, I have collected some terrific appellate opinions that illustrate the point. My favorite of these opinions is a district court’s order on summary judgment found in Bradshaw v. Unity Marine Corp., Inc. (S.D. Tex. 2001) 147 F.Supp.2d 668.

In the midst of addressing the merits of the defendant’s motion for summary judgment, the Court engages in the following evaluation of counsels’ briefing:

Before proceeding further, the Court notes that this case involves two extremely likeable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact – complete with hats, handshakes and cryptic words – to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that the utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.

The district court’s commentary goes on, but you get the idea. My students seem to understand the significance of the fact that counsels’ names are forever attached to this unflattering opinion, and at least the next papers my students submit tend to reveal a more purposeful effort at proofreading and quality writing.

Sometimes, the consequence is a bit harsher than simply being mocked by the court in writing. I recently stumbled upon a decision out of the Court of Appeals of Wisconsin, Johnson v. Roma II – Waterford, LLC (2009) 2009 WL 929049 (Wis.App.). Johnson memorializes the travails of the hapless Mr. Hudec, who inadvertently filed a “draft” answer to a complaint, rather than the final version. Opposing counsel obtained a default judgment against Mr. Hudec’s client, based on the client’s failure to answer certain portions of the complaint, and Mr. Hudec sought to have it set aside. The trial court refused, finding that Mr. Hudec’s “mistake” was not excusable neglect.

Mr. Hudec made matters worse for himself on appeal. His brief was in such shambles, the Court of Appeal direct Mr. Hudec, in footnote 8, to “[t]ips for proofreading [] found online at the University of Wisconsin-Madison’s “The Writing Center”. See http://writing.wisc.edu/Handbook/Proofreading.html”. The Court of Appeal then reported Mr. Hudec to the Office of Lawyer Regulation.

What are your thoughts about the importance of grammar, proofreading and quality legal writing in general? Feel free to share your stories here. I could use them on Wednesday nights.

Ric Blumhardt and Allan Isbell Achieve Another Appellate Victory in Gundogdu v. King Mai, Inc.

Danielle Arteaga — Tue, 21 Apr 2009 12:10:36 -0800

The Court of Appeal for the First Appellate District, Division Three, recently published its decision in Gundogdu v. King Mai, Inc. (2009) 171 Cal.App.4th 310. King Mai, Inc. was represented on appeal by Archer Norris's Ric Blumhardt and Allan Isbell and Lorber, Greenfield & Polito, LLP's Ron U. Lunski. Together, they successfully convinced the Court of Appeal to affirm summary judgment for King Mai, Inc. on the grounds that the Gundogdus’ claims were barred by the ten-year statute of limitation in Code of Civil Procedure section 337.15 as applied to a claim for defective construction of residential property.

In 1995, King Mai constructed a home, which it sold to the Gundogdus in 1997, sixteen months after completion of construction. The Gundogdus subsequently brought an action against King Mai for negligence and breach of implied warranty arising from alleged defects in the home’s original construction. The action was brought more than ten years after construction of the home, but less than ten years after it was sold to the Gundogdus by King Mai. King Mai successfully moved for summary judgment on the ground that the Gundogdus’ action was completely barred by section 337.15.

On appeal, the Gundogdus argued that the ten-year statute of limitation had been equitably tolled pursuant to section 337.15, subdivision (e), during the sixteen-month period of King Mai’s passive ownership of the property and completion of construction.

The Court of Appeal rejected this argument, observing that the defects the Gundogdus claimed to have caused their damages were defects that occurred during the construction of the building; not during King Mai’s passive ownership of it. To interpret section 337.15(e) as tolling the ten-year statute under such circumstances would be to circumvent the very protection that the statute of limitation was designed to avoid – a contractor’s indefinite exposure to liability for its work. Because the Gundogdus’ complaint was necessarily premised on King Mai’s liability as the developer of the property – and not as its owner – there was no reason to apply the exception to the ten-year statute in subdivision (e).

The Gondogdus also asserted that King Mai was equitably estopped from asserting the ten-year statute pursuant to Lantzy v. Centex Homes (2003) 31 Cal.4th 363. The Gundogdus argued that King Mai falsely promised to make repairs to the property, on which promise the Gundogdus relied in delaying the filing of their complaint for damages. However, the Court of Appeal observed that the Gundogdus acknowledged on summary judgment that they were aware of defects in the home by February 11, 2004 at the latest, at which time King Mai unequivocally informed the Gundogdus it would make no further repairs to the property. The limitations period did not expire until November of 2005, and the Gundogdus failed to file their suit until April of 2006. Thus, the Gundogdus were precluded as a matter of law from arguing that they proceeded diligently once the truth of the condition of their property was discovered, as necessary to sustain a claim of equitable estoppel.

Through its analysis, the Court of Appeal underscored the different protections afforded to contractors and owners under section 337.15 as a consequence of each entity’s distinct liabilities with respect to property. It also provides valuable guidance to trial and appellate courts on the importance of the distinction between liabilities for defects arising in the course of construction and those arising after completion.

Danielle Arteaga Joins the California Appellate Law Blog

Danielle Arteaga — Tue, 21 Apr 2009 11:55:56 -0800

I am happy to introduce myself as a new contributing member of Archer Norris's California Appellate Law Blog team. I am a senior associate with Archer Norris, and my practice emphasizes insurance coverage law in both the trial and appellate contexts. I am excited to bring my perspective to the appellate law issues discussed in this blog, and I look forward to your comments and contributions.

More Advice From The Bench . . . Kozinski On Oral Arguments

Kimberly Amick — Thu, 15 Jan 2009 12:26:25 -0800

On Tuesday, Judge Kozinski of the Ninth Circuit Court of Appeals (do I really need to clarify that) sat down with David Lat, Founder of Above the Law for a conversation about collegiality on the court and some interesting tips on oral argument.

The podcast of their conversation is available here. Or you can read a summary and excerpts here.

Following in the vein of yesterday's post with Scalia's comments on writing amicus briefs, Judge Kozinski offered an interesting tidbit of advice for oral argument -- Apparently judges don't appreciate having their own opinions cited back to them. Who knew?

Lat expressed surprise when Kozinski offered a practice tip for oral argument: never point out that the opinion you are citing was written by a member of the panel.

While the moderator suggested that judges might “like being buttered up,” Kozinski offered that he could not think of a single federal judge who enjoys having his own opinions cited to him.

“It’s not just gauche,” the judge said. “It looks like you’re trying to trap me with my own opinion.”

The only thing worse, he quipped, would be “telling Willie Fletcher that ‘this is something your mom said.’” Ninth Circuit Judge William Fletcher, a Clinton appointee, is the son of Senior Judge Betty B. Fletcher, a member of the court since 1979.

Kudos to ATL for the heads up.

Justice Scalia on Amicus Briefs . . . and Plows

Kimberly Amick — Wed, 14 Jan 2009 14:46:22 -0800

This is a brief, and albeit random bit of information, but I was going through an old notebook looking for an outline and found a quote from Justice Scalia on amicus briefs that made me chuckle. This is from a seminar he gave with Bryan Garner last summer in D.C. on their book Making Your Case: The Art of Persuading Judges.

"Don't re-plow the ground that you expect the parties to plow unless you expect the parties to plow with a particularly dull plow."

Now say that five times, quickly.

Tracking Ninth Circuit Opinions Just Got Easier

Kimberly Amick — Wed, 07 Jan 2009 13:22:46 -0800

The Ninth Circuit is now offering an RSS feed for all new opinions. You don't get the digest version that you would by using Callaw or Westlaw or another similar service, but it gives you instant access to the decisions.

Another good source for tracking opinions from the 9th is the Ninth Circuit blog put out by several federal public defenders. More of the focus is on criminal cases, but they write good, succinct analysis of the opinions.

Finally, the Ninth Circuit has also been posting links to files of oral arguments for some time. Interesting when you've got the time or inclination.

Disputes Over Cumis Fees Must Be Arbitrated Regardless of Bad Faith Claims

Kimberly Amick — Fri, 19 Dec 2008 12:05:56 -0800

In Compulink Managements Center, Inc. v. St. Paul Fire and Marine Ins. Co., et al California’s Second District ruled that, regardless of Compulink’s claims for bad-faith, the parties’ dispute over the reasonableness of independent counsel’s fees must be arbitrated pursuant to Cal. Civil Code Section 2860.

Not a very glamorous subject, I know, but an important decision for many litigators wanting to get paid by their client’s insurers.

Civil Code Section 2860 mandates arbitration of any dispute over the reasonableness of independent counsel’s attorney’s fees that must be paid by an insurer. Here, the court clarifies whether, when a coverage action is brought alleging numerous and various claims against the carrier, only one of which happens to be a dispute over the reasonable of independent counsel’s fees, the arbitration of the fee issue is still required. Their answer was “yes”.

The trial court had denied St. Paul’s petition to compel arbitration, stating that Compulink’s bad faith claims took the action beyond the purview of Section 2860. The Second District disagreed, finding that the plain language of the statute required arbitration of any fee dispute and did not provide for an exception in cases where bad-faith allegations were made by the insured.

The opinion is pretty straightforward. What the opinion fails to address, however, are the practical implications of such a ruling. For instance, what about where the insured claims that not only is he owed fees paid to independent counsel, which haven’t been paid by the insurer at all, but that the insurer is also liable for bad-faith.

Can you try such a case without bifurcating the duty to defend and the bad-faith claims? Can the arbitrator determine the reasonableness of the fees before the court determines whether the insurer had a duty to defend in the first place? Why would you want him/her to? And to throw another kink into the process, the court made clear that the mandatory arbitration of Section 2860 applies only to attorney’s fees, not all defense fees and costs (e.g. expert fees).

The legislature intended the mandatory arbitration provision of Civil Code 2860 to prevent the state’s judicial system from bearing the cost of fights over the reasonable of attorneys’ fees -- An understandable and prudent motive. Yet, as in many things, the practical implications may achieve quite the opposite effect.

Supremes Deal Blow to the Golden Rule

Kimberly Amick — Thu, 18 Dec 2008 12:18:59 -0800

This week the California Supreme Court dealt a blow to the holiday spirit of "do unto others" with its decision in Van Horn v. Watson, ruling that a woman who pulled her friend from the car following an accident and caused her paralysis could be tried for causing the injuries.

Relying on the principle, "that one who assumes to act, even though gratuitously, may thereby become subject to a duty of acting carefully, if he acts at all." Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 613, the Court held that there was no immunity for a Good Samaritan not performing emergency medical services.

When The Teacher Becomes the Student . . .

Kimberly Amick — Sat, 13 Dec 2008 12:54:43 -0800

Last week a friend at work asked me to sit as a judge for a class he teaches in appellate advocacy at JFK Law School. After a certain amount of polite grumbling (it required driving into SF in rush hour traffic) I agreed. As I was subsequently sitting in that traffic, I began pondering what ultimate wisdom I could impart to these students about oral advocacy. The entire drive over (which was long to say the least) I considered the pearls of wisdom Ric had imparted to me before my first oral argument, comments by Justice Scalia and Bryan Garner from their amazing seminar I attended last summer . . . By the time I reached the 9th Circuit's courthouse in SF, I was feeling very blessed to have such amazing mentors in my own career.

By the time I left, I had to chuckle. I walked into the 9th Circuit that evening thinking I was doing a favor for a friend and a service for some law students. After I got over the initial uncomfortableness with donning an actual robe and sitting at the bench (it felt somehow sacrilegious . . . like dressing as a priest while attending the church Halloween party) I realized that watching a serious of students argue from the judge's perspective was probably one of the most valuable learning experiences I've ever had in oral advocacy. No amount of seminars, CLE classes, or even actual arguments, can truly give you a chance to view an argument from that perspective.

The students did a great job. But, listening to how they formed their arguments and the syllogisms they used was so important. It was easy, at times, to lose track of where they were going with their reasoning when it was not extremely clear, succinct, and laid out at the beginning of their arguments. Using indicators to tell us that they were now moving to a different area of their arguments was extremely helpful. And most interesting was my almost visceral reaction when one student claimed he was citing the statute and ended up quoting a portion of the legislative history. It was not intentional -- and he was nervous -- but the misquote jumped out at me and made it very hard for me to follow the remainder of his argument. Moreover, I found myself becoming very suspicious of his other arguments and wanting to turn to the record after each statement he made in order to check its veracity.

Not that any of these are new tips on oral argument, but I don't know that anything can compare to actually experiencing how helpful and important these things are to the justices sitting in front of you.

Long story short: If you get an opportunity to participate in such an exercise, I highly recommend it. It is a great public service, and you may learn more than you anticipate.

Interesting Law.com Article Regarding Blogging

Kimberly Amick — Mon, 06 Oct 2008 11:40:17 -0800

CC Holland, special to Law.com, wrote an interesting feature today entitled, "Where Are All the Female Bloggers." I was interviewed for the article, and have to admit, I hadn't recognized that there was an apparent lack of female bloggers until Ms. Holland asked me about it. Nonetheless, the article contains interesting, if not alarming observations. Personally, I've had a blast participating in the "blogosphere" and have been lucky enough to avoid some of the downsides discussed in the article. Food for thought.

Exploring The Decision To Retain an Appellate Lawyer

Kimberly Amick — Fri, 22 Aug 2008 09:26:38 -0800

Greg May, over at the California Blog of Appeal, is starting a new series on the reasons why attorneys, and more importantly their clients, are sometimes reluctant to hire appellate counsel. Sure to spark an interesting conversation . . . check it out here.

First District Clarifies Affirmative Conduct Under Privette/Toland

Kimberly Amick — Tue, 12 Aug 2008 09:41:53 -0800

Yesterday, the First District issued a published opinion in Madden v. Summit View clarifying the state of existing law regarding the Privette/Toland doctrine and the level of affirmative conduct necessary to impose liability on a general contractor for injuries to an employee of an subcontractor.

Bill Staples of Archer Norris represented Summit View, Inc. at the trial court level and successfully argued in favor of summary judgment (against a tentative ruling) that Madden had no claim against Summit View as the general contractor pursuant to the Privette/Toland line of cases.

Madden appealed and we represented respondent Summit View on appeal. Yesterday, the First District issued its decision in the case, affirming summary judgment in favor of our client in full.

The opinion was published and clarifies the state of existing law regarding the Privette/Toland doctrine, and the level of conduct necessary to qualify as affirmative conduct under Hooker v. Department of Transportation (2002) 27 Cal.4th 198 and Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338.

The court also held that the decisions in Elsner v. Uveges (2004) 34 Cal.4th 915 and Evard v. Southern California Edison (2007) 153 Cal.App.4th 137 regarding the admissibility of Cal-OSHA regulations, did not abrogate the Privette/Toland line of decisions, nor did they hold that such regulations expand a general contractor's duty of care to the injured employee of a subcontractor. Instead, the court held that safety regulations are only admissible in actions by employees of subcontractors brought against general contractors where other evidence establishes that the general contractor affirmatively contributed to the employee's injuries.

Congratulation to Ric Blumhardt On Award Of Specialization In Appellate Law

Kimberly Amick — Wed, 06 Aug 2008 09:52:46 -0800

Congratulations to Ric Blumhardt of Archer Norris who is now officially an appellate specialist, certified by the California State Bar.

Ric has been my mentor and teacher for years. Its a highly deserved accreditation and we are all very proud and excited for him as he leads the growth and development of Archer Norris' appellate practice.

Some of his more notable appellate victories include Urhausen v. Longs Drug Stores California, Inc., 155 Cal.App.4th 254, Safeco Insurance Co. of America v. Superior Court, 71 Cal.App.4th 782, and Lambert v. Carneghi, 158 Cal.App.4th 1120.

Congrats to Ric!

To Reply, Or Not to Reply

Kimberly Amick — Thu, 31 Jul 2008 16:42:11 -0800

Mike McKee at the Recorder wrote an interesting article yesterday about the reply brief on appeal. Apparently, it is a controversial document, with some judges bemoaning another fifteen pages reiterating appellant's arguments and others claiming that it is the first document they read.

The article talks briefly about Justice Scalia's thoughts, offered in response to questions on his recent book tour. At the seminar in D.C. last week with he and legal writing guru Bryan Garner, Justice Scalia spoke at some length about the danger of not anticipating judges who are "retro-readers" -- who read the briefs in the opposite order in which they are filed. As the Recorder article confirms, many justices and judges work from back to front when reading briefs, believing that it is not until the reply brief that the "real" issues and controversies between the parties are sufficiently pared down to warrant consideration.

In my humble opinion, the question of whether or not to file a reply brief (as opposed to its content) is really a non-issue. We are advocates for our client, and although there are certainly times when less is more, I do not believe that letting your opponent’s analysis of your argument sit as the last word is ever good advocacy. As Justice Stein commented, the lack of a reply brief, “gives you a clue it's not a strong case."

For me – argument over.

Supreme Court Holds That Defense Obligation In Indemnity Agreement Is Separate From Indemnity Obligation

Kimberly Amick — Tue, 22 Jul 2008 12:50:13 -0800

On a more serious note than clapping jurors (see previous post), the Supreme Court published its ruling in Crawford v. Weather Shield Mfg., Inc. yesterday, explaining that, in the context of indemnity agreements, a contractual duty to defend may be separate and distinct from the duty to indemnify.

Previously, in Regan Roofing Co. v. Superior Court (2004) 24 Cal.App.4th 425, the court held that a contractor’s duty to defend pursuant to an indemnity agreement only arose if the indemnity obligation was triggered. So, for example, if the indemnity agreement required that a subcontractor be found negligent in order for its indemnity obligation to be triggered – its defense duty was not triggered either until such showing.

Not so says the Supreme Court. Where an indemnity agreement provides a “duty to defend” rather than a mere promise to pay defense costs as part and parcel of its indemnity obligation, the duty is triggered upon the making of allegations that fall within the indemnity obligation. More importantly, the Court held that this duty to defend is implied in every indemnity agreement pursuant to Civil Code Section 2778. So if parties do not intend to be liable for providing a defense before their own indemnity obligation is triggered, the contract must specifically state as much.

Now, I am not an expert in construction defect litigation by any means. However, it seems to me that the indemnity cross-complaints that begin to fly as soon as a construction defect action is filed against a general contractor may be better suited to separate claims for declaratory relief on the duty to defend in light of this ruling. Moreover, who gets to control the defense? What if there are fifty subs who all owe a duty to defend the general and they can’t agree on a lawyer? Through years of trial and error (and a lot of litigation), liability insurers have had lots of practice nailing down the boundaries of their defense obligations. Contractors, at least in my limited experience, have paid less attention to the terms of the indemnity agreements in a standard construction contract. Looks like that may need to change, and quick.

Ouch ... Clapping Juror Following Closing Argument Is Not Prejudicial

Kimberly Amick — Tue, 22 Jul 2008 11:58:59 -0800

Yesterday in Bandana Trading Co., Inc. v. Quality Infusion Care, Inc., the Second District held that a juror's clapping during closing argument in response to counsel's reminder that the jury could disregard testimony by a witness it believed was not credible did not prejudice appellant's case.

Apparently, Juror No. 2 thought someone was lying and exuberantly expressed her opinion in court. The Second District didn't believe it was prejudicial since the case was nearly over and the other jurors, when polled, couldn't remember what had prompted the applause.

I am sure respondent's counsel just felt lovely after that little show of enthusiasm......

Attorney General Files Suits Over "Organic" Label

Kimberly Amick — Tue, 01 Jul 2008 12:38:15 -0800

Interesting new spat of lawsuits over the labeling of organic products. According to an article in the National Law Journal yesterday, the California Attorney General filed five suits yesterday; including one against Whole Foods for including allegedly cancer-causing ingredients in purportedly organic body products.