Judges “Afraid” Of Reversal Are Doing Us All A Disservice

A retired California state court judge recently came to our office and gave a continuing legal education presentation on law and motion practice–“Advice and Perspectives From The Bench.”  It was engaging, largely because of the judge’s willingness to draw back the curtain and talk more candidly about topics left out of typical CLE programs.  In particular, he offered some illuminating, if not alarming, inside information about how most of his former colleagues on the bench won’t grant a motion for summary judgment, regardless how meritorious the motion may be.  He cited “fear of reversal” as the biggest reason for this reluctance.

I often counsel clients who are unfamiliar with the contrast between state and federal courts in California that a meritorious summary judgment motion has vastly better odds of success if the case is pending in federal court than California state court.  I had not been aware, however, that some state court judges actually have a policy of denying such motions regardless of merit.  In my experience, our district court judges never shy away from summary judgment if the papers establish it’s appropriate.

Why this dichotomy? Why are state court judges so worried about their reversal rate, when their district court counterparts do not seem encumbered by this fear?  Is it the security of a lifetime appointment?  Is it the concern that excessive reversals will hamper promotion to the state Court of Appeals?

Whatever the reason, a predisposition to deny motions for summary judgment, whether there are triable issues or not, does us all a disservice.  In 1993, the California Court of Appeals, in Juge v. County of Sacramento, 12 Cal.App.4th 59, wrote that:

The summary judgment procedure provides the court and parties with a vehicle to weed the judicial system of an unmeritorious case which otherwise would consume scarce judicial resources and burden the parties with the economic and emotional costs of protracted litigation because the lack of merit is not apparent from the face of the complaint or answer. The procedure permits the court to penetrate the pleadings and ascertain, by means of affidavits, the absence of triable issues of material fact. It is in the public interest, including the court’s interest in the efficient and economical administration of justice and the parties’ interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter.*

I do not take issue with the heavy burden placed on a party that seeks to deprive its opponent of a jury trial.  But our courts are buried.  Litigation is expensive–expenses which are necessarily passed through to the public through an increased cost of goods and services.  This isn’t about tort reform.  The legislature has already spoken and developed a mechanism which is theoretically fair to both sides and which, if employed, should lighten the (over) load of courts and drastically reduce the cost to both sides.

Most of us who practice “in the trenches” know that there are a lot of lawsuits which lack merit.  Judges who won’t seriously consider granting a motion for summary judgment on a case that warrants it are certainly doing a disservice to both the plaintiff and her lawyer.  Why prolong the pain and expense?

It’s no secret that, statistically, only a fraction of lawsuits will be tried to verdict.  The vast majority result in a settlement.  But it often takes a looming costly or risky event on the horizon to get earnest settlement discussions going.  Meanwhile, the meter is running and the lives of people and companies are thrown into chaos.  Trial is the most risky and costly event of all.  But a pending motion for summary judgment, before a judge that will grant a meritorious summary judgment motion, can also be a looming risky event which brings parties to the table.  As it increasingly becomes common knowledge that judges are actually “afraid” to grant summary judgment, such motions become an expensive waste of everybody’s time and the “coefficient of risk” remains so minimal that the parties may not seriously discuss settlement until the case nears trial.

What’s the answer? I don’t have a handy one in my back pocket.  Write to your congressperson? I won’t discourage my own clients from filing a meritorious motion for summary judgment, but I will continue to be honest that the odds of winning such a motion, at least in California state court, aren’t so good.

*12 Cal.App.4th at 70.  Emphasis added.  Many internal citations omitted.

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Cal. Supreme Ct. To Decide If Terms Or Conduct Govern Franchisor Liability For Employment Practices

The California Supreme Court will decide whether the terms of a franchise agreement, or the franchisor’s conduct at-odds with that agreement, govern for purposes of whether the franchisor can face liability for (mis-)treatment of a franchisee’s employee.

The issue is simpler than it sounds, but an opinion could have wide-ranging implications for franchisors doing business in California.  In Patterson v. Domino’s Pizza, a 16 year-old employee of a Domino’s franchise sued, not only the franchisee and its manager, but also Domino’s, for alleged sexual harassment, retaliation and constructive wrongful termination.  The franchisee petitioned for bankruptcy protection and Domino’s obtained summary judgment on the grounds that the operative franchise agreement placed sole responsibility for recruiting, hiring, training and supervising employees on the franchisee, such that the franchisee was an independent contractor for liability purposes.

In June, 2012, the California Court of Appeal for the Second District issued and certified for publication an opinion that reversed the summary judgment in Domino’s favor.  In a nutshell, the Court of Appeal looked well outside the terms of the franchise agreement, focusing instead on the course of conduct between Domino’s and its franchisee.  Among the items of evidence cited by the court was Domino’s specific hiring requirements applicable to all franchisees, including rules about qualifications, appearance standards and required training software programs.  The court also pointed to testimony from the franchisee owner about Domino’s practices, including specific direction to fire certain franchisee employees (including the alleged harasser) and tactics, including “mystery shoppers,” designed to exert control over individual franchise stores.  Triable issues remained, the Court of Appeal concluded, whether “there was a lack of local franchisee management independence” which could render Domino’s liable.

Accepting Domino’s petition for review, the Supreme Court has ordered the parties to limit analysis to the question whether Domino’s is entitled to summary judgment on plaintiff’s claim that it is vicariously liable for tortious conduct by a supervising employee of the franchisee.

If the Supreme Court’s opinion is unfavorable to Domino’s, it could change in a very material way the degree of control franchisors maintain over their franchisee’s employment practices.  If it results in a shifting of responsibility to the franchisor, I imagine it will increase franchise purchase costs, trigger different or additional insurance provisions, with corresponding cost increases, and overall make franchise arrangements less appealing in our golden state.

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Tarle v. Kaiser: You Must Oppose Objections to Argue Them On Appeal of Summary Judgment

Anyone who has argued a complicated summary judgment motion knows the challenges of making sure the record is robust to provide for appellate review, if necessary.  This is particularly true given increasingly “jammed” law and motion calendars, which sometimes cause judges to encourage counsel to make oral argument brief.

Against this background, the Second District California Court of Appeal issued an opinion last week which highlights an important rule when briefing or arguing summary judgment motions.  In Tarle v. Kaiser Found. Health Plan, Inc. (2012 WL1850926), an employment discrimination case, the employer moved for summary judgment.  The employee opposed the motion, including submissions of 750 pages of evidence.  In reply, the employer submitted 335 separate objections to the plaintiff’s evidence.  Despite a second hearing and briefing opportunity, the plaintiff did not specifically oppose, in writing or during oral argument, the objections to the plaintiff’s evidence.

The trial court sustained nearly all of the objections to plaintiff’s evidence and granted summary judgment.  The plaintiff appealed and tried to raise the issue of the court’s sustaining of defendant’s numerous evidentiary objections.  Although the Second District Court of Appeal reversed the summary judgment (on separate grounds), the appellate court barred the plaintiff from arguing the objections, based on her failure to argue orally or in writing against the objections at the trial court.  It said.  “We conclude that a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”

This opinion reinforces the importance of presenting an organized oral argument on summary judgment motions.  Where a judge is “rushing” counsel to make their argument unduly brief, it may even become necessary to take steps to assure that the record reflects this fact (which, itself, could raise an impatient judge’s ire).  Tread carefully!

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