Wednesday, October 25, 2006

Collins v. Hertz Corp. (Cal. Ct. App. - Oct. 25, 2006)

This is probably not the way you want to start out your early legal career.

It's a dog of an employment case. One that you probably should -- and will -- lose, but which your firm has nonetheless undertaken. Defendants move for summary judgment. You oppose the motion. You're not lazy and you're not stupid. You oppose the motion at length, and file voluminous opposition papers. Twice; once initially, and once when the court bounces them back to y0u and asks you to correct and refile them.

So this is not a case of a lazy and/or incompetent plaintiff's counsel. Rather, it's a counsel who's working hard, and trying to be a good advocate. Sometimes, however, you try too hard. Which is what happens here. The attorney for the plaintiff, Lee Franck -- a USC Law School graduate admitted to the bar in 2003 -- continued to submit three separate opposition papers (a total of 60 pages) even though the court told him only to file one. And filed a response to the defendants' separate statement of undisputed facts that was evasive, rambled on at length, and included 172 purported statements of its own, with hundreds of pages of supporting declarations and exhibits.

Which the trial court -- and Justice Boland -- hold repeatedly violated CCP 437c and CRC 342, were (in large part) stricken on that basis, and as a result of which summary judgment was granted to defendants. Plus, to make matters worse, Justce Boland (belatedly) decides to publish the opinion, which summarizes the conduct of plaintiffs' counsel as follows:

"In opposition to the motion, the plaintiffs submitted voluminous papers which failed to comply with the requirements of Code of Civil Procedure section 437c (section 437c), or California Rules of Court, rule 342 (rule 342). The trial court afforded plaintiffs an opportunity to cure the defects and resubmit opposition papers which complied with applicable rules. The plaintiffs filed new papers, which also failed to meet the procedural requirements governing motions for summary judgment. The trial court struck the offending portions of the plaintiffs’ separate statement, as well as portions of their responsive declarations. As a result, the majority of the defendants’ facts were effectively left undisputed and, on that basis, summary judgment was granted. The plaintiffs appeal. We affirm."

Justice Boland then goes on to describe the conduct of Mr. Franck at length and in detail. As I said, not something for which you really want to be remembered forever in the annals of the California Reporter.

For the rest of us, however, the case is useful, if only to highlight the importance of responding properly -- and in a straightforward fashion -- to the separate statement of undisputed facts. Which didn't happen here. Much to the chagrin of Mr. Franck. Not to mention his clients.

Lesson learned. Sadly, the hard way.