California Supreme Court activity for the week of September 21, 2009, and other Supreme Court news

The California Supreme Court held its (usually) weekly conference today.  Notable results include:

• A Petition for Review and a Request for Depublication were both denied in Doppes v. Bentley Motors (trial court abused discretion for failing to impose terminating sanctions).  This case is significant for a number of reasons, including its impact on aspects of Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) claims.

No other case developments jumped out at me as significant this week.

In other Supreme Court news, the briefs for the October oral argument calendar are now available here.  Lots of "People v." cases in October, so it's not as exciting as it sounds (unless you are a District Attorney...or a criminal).

Every now and then the question "Where are the bodies buried?" turns out to be legitimate discovery

If you dig deep enough in litigation, you may get down to the real dirt.  But if your class action alleges desecration of human remains, you don't have to dig too deep to uncover the grave truth.  In Sands v. Service Corporation International, a putative class action filed September 10, 2009 in Los Angeles County Superior Court, it is alleged that Defendants:

1. Secretly broke and opened interment vaults;
2. Secretly dumped and desecrated human remains, including but not limited to skulls, from interment vaults that were improperly broken or opened, in order to cover up their wrongful acts;
3. Secretly interred humans remains in locations other than the plot in which the remains were to be properly interred;
4. Secretly plotted and sold interment plots on top of already scattered human remains, and thereafter secretly interred the recently deceased on top of those scattered human remains;
5. Secretly “lost” the human remains of individuals without disclosing to family members or others that the deceased was not in fact interred in his or her designated plot;
6. Secretly interred individuals in the wrong plots;
7. Intentionally, recklessly, and/or negligently misinformed family members of the deceased as to the state and condition of interment plots, vaults, interments, and human remains; and
8. Intentionally, recklessly, and/or negligently published, disseminated, circulated and/or placed before the public, either directly or indirectly, statements that were untrue, deceptive and/or misleading regarding the business patterns and practices at Eden Memorial Park.

Complaint.  But it gets better (or worse).  According to Fox News Los Angeles, a former cemetery worker has come forward with allegations that body parts from overcrowded gravesites were routinely discarded.  Isn't nice to see how we all pull together in tough economic times and place family at the center of our priorities?

The first class actions I ever worked on were cemetery class actions.  No other type of misconduct seems to hurt more people in a more personal way than when they learn that the remains of their loved ones were discarded with the trash.  Things like this shouldn't still be happening.

New study concludes that low-income workers are routinely the victims of unlawful employment practices

Anecdotally, it seems that wage & hour class actions are a subject of incresingly polarized views, both in and out of court.  Proponents of wage & hour class actions champion the need for private enforcement of wage & hour laws to protect workers.  Opponents decry the burdens they impose on businesses, describing wage & hour class actions as an "epidemic."  (I'm working on a detailed analysis of the "epidemic" charge and will have more to say on that subject at a later date.)  But a newly released study of wage-law violations in major U.S. cities provides fresh ammunition to the advocates of employee rights.

Broken Laws, Unprotected Workers, a report by the UCLA Institute for Research on Labor and Employment, the National Employment Law Project and the Center for Urban Economic Development, summarizes findings of a 2008 study in which 4,387 workers in low-wage industries in the three largest U.S. cities — Chicago, Los Angeles, and New York City — were surveyed to identify wage & hour violations.  The survey found that:

Finding 1: Workplace Violations Are Severe and Widespread in Low-Wage Labor Markets

We found that many employment and labor laws are regularly and systematically violated, impacting a significant part of the low-wage labor force in the nation’s largest cities. The framework of worker protections that was established over the last 75 years is not working.

Finding 2: Job and Employer Characteristics Are Key to Understanding Workplace Violations

Workplace violations are ultimately the result of decisions made by employers—whether to pay the minimum wage or overtime, whether to give workers meal breaks, and how to respond to complaints about working conditions. We found that workplace violations are profoundly shaped by job and employer characteristics.

Finding 3: All Workers Are at Risk of Workplace Violations

Workplace violations are not limited to immigrant workers or other vulnerable groups in the labor force — everyone is at risk, although to different degrees.

Report (excerpts from Executive Overview), at 2-5.  The New York Times ran one of the earliest articles about this Study, but since they couldn't be bothered to give me timely permission to quote any portion of their article, I can't be bothered to link to it.  The study's authors discovered what has been known by plaintiffs' attorneys in the wage & hour field for years - violations of wage & hour laws are at pandemic levels:

We found that there are significant, pervasive violations of core workplace laws in many low-wage industries. Workers are being paid less than the minimum wage and not receiving overtime pay. They are working off the clock without pay, and not getting meal breaks. When injured, they are not receiving workers’ compensation. And they are retaliated against when they try to assert their rights or attempt to organize.

Report (Introduction), at 9.

Entirely OFF TOPIC: (some of) your suspicions about Paris Hilton are confirmed

Law is too often about what went wrong, who was injured or how to distribute loss.  It usually isn't funny.  But sometimes a little gem turns up that brightens your day.  And I share because I care.

Just based on various laws of probability and related principles, you've either opined, or been in the vacinity of one opining, that it's impossible to figure out what it is that Paris Hilton has accomplished to merit fame.  Thanks to the Ninth Circuit, you now have published precedent at your disposal to answer that question.  According to the Ninth Circuit, in Hilton v. Hallmark Cards (August 31, 2009), Paris Hilton is a "flamboyant heiress" that "is 'famous for being famous.'"  Slip op., at 12115.  And that's from the first page of the actual opinion.  Henceforth, it's not just your opinion that she's done nothing to justify her fame; it's the law.

The balance of the opinion concerns other pressing issues, like the application of California's anti-SLAPP statute, Code of Civil Procedure § 425.16.

Select legal briefs now available at no cost from the California Supreme Court

The California Supreme Court is promoting a new feature on the California Courts website.  Legal briefs for cases on the September Oral Argument calendar can be found on this page.  The cases and briefs curently available include:

S149752: Roby v. Mckesson

Petition for review (PDF, 1,712 KB)
Answer brief (PDF, 2,998 KB)
Reply to answer petition for review (PDF, 891 KB)
Opening brief on the merits (PDF, 2,740 KB)
Answer brief on the merits (PDF, 3,733 KB)
Reply brief on the merits (PDF, 2,591 KB)

S163335: Costco Wholesale Corp. v. Superior Court of Los Angeles

Petition for review (PDF, 2,595 KB)
Opening brief on the merits (PDF, 2,623 KB)
Answer brief on the merits (PDF, 1,201 KB)
Reply brief on the merits (PDF, 2,623 KB)

S161385: Schacter v. Citigroup, Inc. et al.

Petition for review (PDF, 1,293 KB)
Opening brief on the merits (PDF, 2,131 KB)
Answer brief on the merits (PDF, 1,904 KB)
Reply brief on the merits (PDF, 1,257 KB)

S166747: Johnson v. Greenelsh

Opening brief on the merits (PDF, 1,211 KB)
Answer brief on the merits (PDF, 2,152 KB)
Reply brief on the merits (PDF, 530 KB)

S158852: People v. Stevens (Lorenzo)

Petition for review (PDF, 2,081 KB)
Opening brief on the merits (PDF, 1,269 KB)
Answer brief on the merits (PDF, 2,461 KB)
Reply brief on the merits (PDF, 866 KB)

S163811: People v. Concha (Reyas) and Hernandez (Julio)

Petition for review (PDF, 2,844 KB)
Petition for review (PDF, 2,970 KB)
Opening brief on the merits (PDF, 1,445 KB)
Opening brief on the merits (PDF, 981 KB)
Answer brief on the merits (PDF, 1,196 KB)
Reply brief on the merits (PDF, 1,070 KB)
Reply brief on the merits (PDF, 762 KB)

This will prove to be an exceptional resource if briefs continue to be made available in this way.  An interesting implication of this free public access is whether it in any way resolves the recent copyright controversy about exclusive access to briefs by Westlaw and Lexis.

RECAP redux

I wrote yesterday about RECAP, an exciting project to collect documents from PACER and serve them up for free to the public, through a Firefox extension.  At about that same time, a small controversy over RECAP began brewing.  Eric Turkewitz, at New York Personal Injury Law Blog, reported on the controversy, saying, "Federal courts around the country are now sending out notices to litigants about the dangers of a computer program called RECAP, which if downloaded will automatically take documents that you purchase from the court's PACER system and place them into a free, publicly available database."  See Blog Post.  Carolyn Elefant, at Legal Blog Watch, covered this story as well, observing, "Though RECAP doesn't appear to violate any of PACER's terms and conditions of use, some federal courts are warning lawyers who have installed RECAP to exercise caution in use."  In her post, she reported on Paul Alan Levy's comments that the District Court warning "is not a genuine security warning, but an attempt to intimidate users from installing RECAP. After all, as more federal court documents become accessible at no cost, the federal court system will lose revenues."

But before I could report on this controversy, it appears to have subsided.  Consumer Law & Policy Blog is now reporting that Deputy Chief for IT Policy and Budget at the Administrative Office of the United States courts has no problem with the use of RECAP.

If you don't already know about RECAP, the Firefox extension for getting more out of PACER, it's worth a recap

If you have ever requested documents through PACER, you need to know about RECAP.  RECAP is a project of the Center for Information Technology Policy at Princeton University.  The RECAP site describes the project:

RECAP is an extension (or “add on”) for the Firefox web browser that improves the PACER experience while helping PACER users build a free and open repository of public court records. RECAP users automatically donate the documents they purchase from PACER into a public repository hosted by the Internet Archive. And RECAP saves users money by alerting them when a document they are searching for is already available from this repository. RECAP also makes other enhancements to the PACER experience, including more user-friendly file names.

In other words, every time you retrieve a document from PACER with the RECAP extension enabled in Firefox, a copy of the document is provided to the RECAP database.  When another RECAP user requests that same document in the future, the RECAP database will offer to supply the document free of cost.  It's a form of viral assistance, and it's brilliant.  It costs nothing and serves a laudible public purpose.

Get the extension at the RECAP site.  While you're there, you can read up on the extension.

Los Angeles Times covers growing calls for greater accountability by federal judges accused of misconduct

Springboarding off a litany of criticisms directed at federal District Court Judge Manuel L. Real, the Los Angeles Times reported on comments by a judicial misconduct scholar that asked whether any misconduct by a federal Judge was sufficient to rise to the level of "willful misconduct."  Carol J. Williams, Critics want to bench Judge Manuel L. Real (August 16, 2009) www.latimes.com.  It's worth a read, if only to threaten that last little spark of faith in the system.

Two recent class action lawsuits against AT&T and Apple raise interesting questions about adequate disclosures

Two class action lawsuits have been filed against AT&T and Apple over the current lack of MMS (multimedia messaging) support for the iPhone 3G and 3GS.  But first, some basic technical background information is in order.  MMS permits the transmission of pictures, video and other media over an extension to the SMS standard (text messaging system).

"The first lawsuit, filed in the Southern District of Illinois by Tim Meeker, claims that Apple and AT&T misrepresented material facts about the iPhone's support of MMS. Meeker claims that he went to buy an iPhone 3G in March at an AT&T store. When he asked about MMS support, he was told that it would be added in a forthcoming update to the iPhone OS in June."  Chris Foresman, Tired of waiting for AT&T to enable MMS on iPhone? Sue! (August 15, 2009) arstechnica.com. The other case, filed in the Eastern District of Louisiana by Christopher Carbine, Ryan Casey, and Lisa Maurer, has almost identical language to the lawsuit filed in Illinois by Meeker."  Id.

When Apple announced the iPhone 3GS and its 3.0 Operating System in June, at the WWDC, Apple indicated that MMS functionality was built into the operating system but would not be available in the United States until later in the year.  This raised an interesting question about these class action lawsuits.  When are representations imputed to customers?  The WWDC announcement received widespread coverage in the tech media.  I watched live blogging of the event on gizmodo.com (wait, I was working then, so nevermind).  But most consumers probably don't watch coverage of WWDC.  Let's assume that AT&T stores were promising MMS functionality was coming in June, before the WWDC announcements.  That situation is easier to analyze, since there is no conflicting information.

But what happens when that same AT&T store is silent about the absence of MMS functionality after the June WWDC event.  Does it have a duty to tell consumers about the lack of MMS?  Is MMS functionality even material?  (Parenthetically, I can e-mail pictures to an AT&T phone's e-mail address and get around this limitation, but I don't know how many people are aware of that option.)  Does a consumer need to ask about MMS to indicate that it is material?  Is the WWDC announcement and related converage sufficient to put consumers on notice about the delay in MMS functionality?  What about fine print on AT&T's website?

I'm not offering answers to these questions, but the questions are of interest to me and I thought I'd share them.

Never say never: even CJAC's counsel agrees that sometimes unfair competition class actions are a viable tool for obtaining justice

The Civil Justice Association of California ("CJAC") is demonstrating that the "justice" isn't in their name for show.  Fred Hiestand, general counsel for CJAC, wants justice, and he's willing to file a class action against the City of Sacramento and allege unfair competition in violation of Business and Professions Code section 17200 to get that justice.  Dave Gilson, Tort Reformer Wants His Day in Court (August 14, 2009) www.motherjones.com.  According to Legal Pad, CJAC's President, John Sullivan, lamented Hiestand's suit, saying, "Fred has been fighting against frivolous lawsuits for decades, and like a doctor fighting malaria, he’s become infected himself — and with the worse strain of the disease — class actions."  Cheryl Miller, Tort Reform Leader Brings Class Action 'Cause His Car Got Towed (August 14, 2009) legalpad.typepad.com.

In all seriousness, it is outrageous that a city would tow a car for parking in a no parking zone.  Those no parking zones are for special people, like lawyers, that are important and have important things to do, like eat dinner.  Those signs really mean no parking for regular people.  Why do lawyers have to put up with abuse like this?  I'm so angry I could just spit nails.  Sorry I can't blog more, but I need to run out to the street and tell that parking enforcement officer that the red stripe on the curb means "Reserved for The Complex Litigator!"  He has malaria, people - back off.