Appellate Reports and Cases in Brief

Assumption of the risk: If you buy tickets to a haunted house, expect to be scared (Griffin v. The Haunted Hotel)

Jeffrey I. Ehrlich
2016 January

Class actions; pre-certification discovery; CVS Pharmacy, Inc. v. Superior Court (2015) __ Cal.App.4th __ (3d Dist.)

Charlene Deluca sued her employer, CVS, seeking injunctive relief to challenge its policy of terminating any employee who did not work any hours for 45 consecutive days. She claimed that the policy discriminated against people with disabilities, and violated the FEHA. But Deluca was not disabled, nor had she been terminated under the alleged 45-day policy. The trial sustained CVS’s demurrer based on Deluca’s lack of standing, and dismissed her individual claims without leave to amend, but gave her 90 days leave to amend to find a substitute plaintiff, and granted her motion to compel discovery of the names and contact information of current CVS employees. CVS took a writ, which was granted.

The named plaintiff in a class action must be a member of the class he or she seeks to represent. If a court finds that the plaintiff lacks standing, leave to amend to redefine the class, or amend the complaint, or both, is often granted. This rule typically applies where the plaintiff originally had standing, but lost it as a result of factual or legal developments. Here Deluca was never a member of the class she sought to represent. “The potential for abuse of the class action procedure is self-evident where the only named plaintiff has never been a member of the class. Here we find this potential for abuse far outweighs any conceivable benefit to the class.” Accordingly, the trial court abused its discretion in allowing Deluca to have precertification discovery.

PAGA claims; Appealability; Death-knell doctrine: Miranda v. Anderson Enterprises, Inc. (2015) _ Cal.App.4th __ (1st Dist., Div. 5.)

Miranda sued his employer alleging various wage-and-hour claims, including a claim under the Private Attorneys General Act (PAGA), Labor Code § 2698, et seq. The trial court granted the employer’s motion to compel arbitration and dismissed Miranda’s lawsuit. Miranda appealed the dismissal of the PAGA claim, arguing that the dismissal was contrary to the Supreme Court’s decision in Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348. The Court of Appeal agreed, and reversed.

The employer challenged the court’s jurisdiction to hear the appeal, arguing that there could be no final judgment until the arbitration had proceeded and been confirmed. Miranda invoked the “death-knell doctrine,” and exception to the one-final judgment rule. The employer argued that the death-knell doctrine applied only to class actions; not PAGA claims. The Court of Appeal disagreed. It compared the nature of class actions and PAGA claims, and concluded that the death-knell doctrine should apply to PAGA claims.

(Editor’s note: Counsel should be aware that because the death-knell doctrine applies to PAGA claims, making their dismissal appealable even if the individual claim can proceed, counsel must appeal the dismissal of a PAGA claim immediately, and not wait to seek review after the final adjudication of the individual claim.)

Homeowners; premises liability; worker’s compensation; respondeat superior: Vebr v. Culp (2015) __ Cal.App.4th __ (4th Dist., Div. 3)

Plaintiff Vebr was employed by a painting contractor who contracted with the Culps to paint the interior of their home. An hour into the job, Vebr fell 12 feet from an extension ladder provided by the contractor and was hurt. Vebr sued the Culps for negligence and premises liability, based on allegations that his fellow painters were negligent, and the Culps were vicariously liable for that negligence. The trial court granted summary judgment for the Culps. Affirmed.

Because the painting contractor failed to secure worker’s compensation coverage after hiring Vebr, its contractor’s license was suspended by operation of law. The appellate court noted that it would assume, without deciding, that the Culps were potentially liable in tort to Vebr for their own direct negligence and also as Vebr’s employer, within the meaning of Labor Code section 2750.5, and through the doctrine of respondeat superior. Nevertheless, the court found that there were no triable issues of material fact. Vebr testified at his deposition that the ladder from which he fell did not appear to have anything wrong with it and he did not know why he fell.

There is no evidence showing that anyone, whether the Culps or Vebr’s fellow painters, did anything or failed to do anything that caused Vebr to fall off the ladder. No evidence suggests the existence of any hazardous condition at the Culps’ residence, much less one that had any causal connection to the fall. In light of the absence of a triable issue of material fact as to either of Vebr’s claims, the trial court did not err by granting the Culps’ motion for summary judgment.

Default judgments; Statement of Damages; Void judgments: Dhawan v. Biring (2015) __ Cal.App.4th __ (2d Dist., Div. 5) Dhawan sued Biring in 2004, alleging 13 contract and fraud-based claims. The complaint sought general, special, and contract damages “according to proof.” In August 2005, Dhawan served a statement of damages identifying $2,153,333 in general and special damages. On September 12, 2005, the trial court issued a default judgment against Biring for $1.92 million, which did not include any damages for emotional distress or punitive damages. In March 2013, Biring filed a motion to vacate and set aside the judgment, arguing that it was void. The court granted the motion. Affirmed.

Section 580, subdivision (a), limits a trial court’s jurisdiction to grant relief on a default judgment to the amount stated in the complaint, or in a statement of damages required by section 425.11. The purpose of the statement of damages (under section 425.11 or section 425.115) is to notify a defendant of the amount of damages sought where the law prevents the plaintiff from including a specific amount in the complaint. “Under Code of Civil Procedure section 425.10, subdivision (b), a complaint in an action for personal injury or wrongful death may not state the amount of damages. Similarly, under Civil Code section 3295, subdivision (e), a complaint may not state the amount of punitive damages sought.”

Section 580 is to be strictly construed. As a result, a statement of damages cannot fulfill the requirement of the section’s notice requirements concerning the amounts stated in the complaint in cases that do not involve personal injury or wrongful death. Here, Dhawan’s claims did not involve personal injury or wrongful death. He therefore could not rely on the statement of damages to satisfy section 580, subd. (a). Since the default judgment exceeded the amount stated in the complaint, the default judgment was void, and was properly set aside.

Amendment of pleading as a matter of right; Fed.R.Civ. Proc. 15: Casillas Ramirez v. County of San Bernardino (9th Cir. 2015) __ F.3d __:

Casillas Ramirez sued the County for civil rights violations arising from his arrest. He filed suit in state court, and the County removed to federal court. After removal, the County stipulated to allow Casillas Ramirez to file a first-amended complaint, which he did. The district court approved the stipulation. The County then filed a 12(b)(6) motion. Casillas Ramirez did not file a timely opposition or a statement of non-opposition. Two weeks before the scheduled hearing date, Casillas Ramirez filed a second-amended complaint. The filing was rejected because the leave of court had not been sought or given for the amendment. The district judge (the Hon. John Walter) then dismissed the lawsuit, with prejudice, based on the failure to oppose the motion to dismiss. Reversed.

The right to amend pleadings is governed by Fed. R. Civ. Proc. 15(a). Rule 15(a)(1) allows a party to amend a pleading once as a matter of course within 21 days after service, or after 21 days after a motion under Rules 12(b), (e), or (f) is served. Rule 15(a)(2) deals with “other amendments,” and allows “in all other cases” (than those described in Rule 15(a)(1)), a party may amend only with the opposing party’s written consent or leave of court.

The district court held that because Casillas Ramirez had filed a first-amended complaint by stipulation, his right to file an amendment “as a matter of course” under Rule 15(a)(1) had expired or been waived. The Ninth Circuit held that this was error. The rule is organized substantively, not chronologically. “It does not prescribe any particular sequence for the exercise of its provisions.” As a result, the filing of the first-amended complaint by stipulation (which was both with the consent of the County and approval of the district court) did not terminate Casillas Ramirez’s right to amend once “as of course” under Rule 15(a)(1). The district court therefore erred in rejecting the filing of the second-amended complaint. Since the filing of that complaint superseded the first-amended complaint, it mooted the motion to dismiss the first-amended complaint. There was therefore no basis for the district court to dismiss the lawsuit.

Torts; assumption of the risk: Griffin v. The Haunted Hotel, Inc. (2015) __ Cal.App.4th __ (4th Dist., Div. 1). Griffin purchased a ticket to The Haunted Trail, an outdoor Halloween “haunted house” attraction set up in Balboa Park. The attraction featured actors who jumped out of dark spaces, often inches away from patrons, while holding prop knives, axes, chainsaws, or severed body parts. If a patron becomes frightened and runs away, the actors will often chase them. Accordingly, before patrons are admitted to the attraction they are given an orientation, in which they are told that they will not be grabbed, but that they might be bumped into, and if they run away, they will be chased. The Haunted Trail’s Website had “Frequently Asked Questions” that explained that “you will not be grabbed or pushed,” and warned that “running is the main cause of minor injuries. Make sure to follow the rules and DON’T run and you should be fine.” The advertising for the attraction showed actors wielding chainsaws.

The attraction is set up so that the patrons complete the trail and walk through an opening in a temporary fence covered with a dark screen that runs along the edge of the trail. That opening appears to be the “exit” for the attraction, but instead leads to a final scare. The patrons walk through the opening in the fence and regroup on an access road, leading them to think that the event is over. But the exit is fake, and a chainsaw-wielding actor appears and menaces the assembled group. (The chainsaws are real, but the chains have been removed.) Griffin became frightened and ran from the actor, who chased him. Griffin fell and hurt his wrist. He then sued the attraction operator. The trial court granted summary judgment against Griffin. Affirmed.

The trial court properly relied on the doctrine of primary assumption of the risk, which applies to recreational activities like the Haunted Trail. The whole point of the attraction is to scare the patrons, “and the risk that someone will become scared and react by running away cannot be eliminated without changing the basic character of the activity.” The court rejected Griffin’s attempt to create a triable issue of fact about the “type” of fear he experienced. He claimed his injuries were not caused by his reaction to “fun” fear, but rather by the “real, actual danger of physical injury that an irresponsible employee was creating by mishandling the chainsaw.” In essence, Griffin fell prey to the “Carrie” type of false ending used in the attraction, and became scared when he thought that he was safely through the attraction, and was then subjected to one further “scare.” The risk inherent in the Haunted Trail was exactly the risk that Griffin experienced. Moreover, Griffin’s subjective mental state was not relevant to the operation of the primary assumption of risk doctrine, which turns on the nature of the activity involved.

Jeffrey I. Ehrlich Jeffrey I. Ehrlich

Jeffrey I. Ehrlich is the principal of the Ehrlich Law Firm, in Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. He is the editor-in-chief of Advocate magazine and a two-time recipient of the CAALA Appellate Attorney of the Year award.

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