Tuesday, June 16, 2020

Pacifica First National Inc. v. Abekasis (Cal. Ct. App. - June 15, 2020)

This is another exceptionally staccato opinion by Justice Wiley, who distills plaintiff's arguments down to twelve propositions and then dismisses each with two or three sentences.  So it's a short opinion and reaches, I think, the right result.

The basics are fairly straightforward.  P served a lawsuit, D filed a cross-complaint, D served P's lawyer with the cross-complaint, P failed to answer, so D took P's default on the cross-complaint.  Simple.

P says the default is invalid because P only served D's lawyer.  But that's how you serve cross-complaints.  P says D didn't really serve his lawyer, but D submitted a proof of service, and P inexplicably didn't submit a declaration from the lawyer denying such service.  End of story.

So the result's right.  But I wonder if the last sentence about the "seventh" argument (on page five) is really right.  That paragraph reads, in its entirety:

"Seventh, Abekasis argues courts normally set aside defaults when there is little prejudice to the opposing party. Pacifica correctly notes this presumes a proper motion in the first place. Abekasis does not return to the topic of prejudice in his reply brief, which is a concession."

(See what I mean about Justice Wiley responding to arguments super briefly?)

The problem is that not responding to something in a reply brief isn't a concession.  At least it wasn't until today's opinion.  Reply briefs are optional.  Similarly responding to something in a reply brief is optional.  You've got limited space, and need to pick and choose your battles.  You may diminish the persuasiveness of your submission by not responding to a facially good point made by the other side in its opposition brief.  But you haven't thereby waived or conceded the point.

The last sentence of this paragraph also isn't necessary.  It's probably sufficient to instead simply say what Justice Wiley basically says in the second sentence of the paragraph:  "Yeah, often, we vacate defaults when there's no prejudice, but not always, and that in any event assumes you filed the right motion and with supporting evidence, which we think you didn't."  The "concession via reply" claim isn't really necessary.

And it's harmful.  (Or, conversely, you should use this erroneous statement the next time it benefits you.).  From now on, if the other side files a reply brief, and it doesn't respond to an argument you made, you get to say:  "Ha!  Concession!  Pacifica First National!"  And the trial court will have to figure out whether you're right.  And that'll almost always happen, because replies invariably don't respond to some particular argument you've made; they're only half-length, after all.

So I'd delete that sentence.  Or, when you litigate, shamelessly employ it.