There have been absurdly slim pickings on the published opinion front recently. Absurdly. In the month of October -- and it's now the 12th -- the Ninth Circuit has published a grand total of two substantive opinions. In 12 days. Wow. Similarly, the last time the California Court of Appeal published a new opinion was five days ago.
So, bluntly put, there's not much currently to talk about.
But at least we can still learn some lessons.
Here's one:
Sometimes, as a plaintiff, you're better off losing on summary judgment.
Like here.
Plaintiff hit by a car driven by Almir Da Fonseca as the latter was driving home from his work at the Culinary Institute. Plaintiff sues not only the driver, but also the Culinary Institute.
It was Da Fonseca's personal car. He was driving home. Normally, there's no way that you can sue the employer, pursuant to the traditional coming-and-going rule. But Mr. Da Fonseca had some work knives and some dirty uniforms in his car at the time, and occasionally (but not on the relevant day) did various consulting jobs outside of the office, so plaintiff thought this case might fall into one of the exceptions to the usual coming-and-going rule. Hence the suit.
The Culinary Institute moves for summary judgment. Plaintiff barely survives the motion -- with the trial court noting that plaintiff's argument against the application of the usual rule (based largely on the knives, uniforms, etc.) seemed "stretched and tortured" -- but survives it he does. Then, at trial, the evidence is largely the same as on the summary judgment motion, and the defendant promptly moves for a directed verdict, but that too is denied.
Then the jury awards plaintiff nearly $1 million against the Culinary Institute, and the inevitable appeal follows.
The Court of Appeal reverses the judgment, as well as awards costs to the Culinary Institute.
So, for plaintiff (and his counsel), there's the time and expense of preparing for trial, actually doing the thing, and then the additional burden of defending the appeal. All for naught.
Sometimes a win is, in the end, actually a loss. Even if you don't realize it at the time.
Like prevailing on the summary judgment motion here.
