If a pleading could ever be called trendy – like Guitar Hero or a tattoo on the lower back (so we are told) - a prime candidate would be the Notice of Unavailability of Counsel.

You can’t litigate these days without being hit by a stern Notice informing you that the opposing counsel will be out of town (like it’s your fault), and that you had better not try anything while counsel is gone. While initially devised to help sole practitioners with nobody to cover for them, the Notice has become a favorite of the not-so-tiny California Attorney General’s office, which has filed no fewer than seven of them in one of our cases. These Notices announce to counsel, to the court, and to the world: there is now a Litigation Timeout.

Not so fast, says at least one Court of Appeal division. Let’s review the obvious. First, the Notice does not trump a statutory deadline. Second, the Notice has no effect whatsoever on the court in which it is filed. “Nor [at least in the appellate courts] “is there any need for such a procedure.” So, at least in the Fourth Appellate District, Division Three (covering the OC), “a ‘notice of unavailability’ is not a fileable document under the rules of court and will be returned to counsel.”

While the decision does not preclude filing a Notice in the trial courts, the writing is on the wall, which will leave the insecure among you without a form. So, as a public service, we have devised a form letter to opposing counsel - or, if you prefer, e-mail, text, or podcast - as follows:

Dear [name of opposing counsel]:

I will be [on vacation] [in the hospital] [none of your business] from [choose range of dates, preferably fewer than six months], and nobody in my office [has the expertise to grasp the complexities of this litigation] [likes me]. Therefore, in my absence, please [don’t file ex parte applications every day] [crawl away].

Very truly yours,

[your name].

[Download]

Supersedes prior opinion; the en banc Court reconsiders its analysis of whether a class of hearing-impaired UPS drivers, who cannot meet a federal Department of Transportation hearing standard for driving vehicles of a certain weight, may also be disqualified by UPS from driving vehicles of a lighter weight (to which the DOT test does not apply). The district court held that UPS could not, under the Americans with Disabilities Act, use the blanket DOT disqualification for drivers of trucks of lighter weight as well.

The en banc panel majority, after an analysis of the ADA and Title VII provisions concerning “business necessity” and “bona fide occupational qualification” (BFOQ) standards, vacates the district court’s ruling and remands for reconsideration under its newly announced “business necessity” defense under the ADA. The majority agrees with UPS that the Title VII “BFOQ” standard should not be imported into the ADA, and the Court overrules its prior case law which adopted such a standard (Morton v. UPS, 272 F.3d 1249 (9th Cir. 2001)). The issue of liability under the ADA, as well as under California’s FEHA statute, is remanded to the district court for a new analysis. [Download]

This is a suit brought by a large manufacturer of power operated wheelchairs against the Secretary of Health and Human Services over the agency’s denial of reimbursement for wheelchairs supplied to Medicare beneficiaries. The issue is whether the supplier’s submission, with respect to each wheelchair, of a document signed by a physician entitled “certificate of medical necessity,” was sufficient to establish that the wheelchairs were in fact “medically necessary” for the beneficiary under the Medicare statutes and regulations. The Court reverses prior judgment in favor of the plaintiff, and concludes that the Secretary may, consistent with the Medicare Act, require additional documentation, beyond the supplier’s “certificate,” to establish medical necessity. [Download]

In another helpful opinion for disability claimants, the majority reverses the denial of benefits, primarily because the ALJ erred in not providing “clear and convincing” reasons for rejecting the claimant’s subjective testimony (especially in light of the treating doctor’s supporting opinions, which the ALJ simply failed to mention). The majority also rejects the ALJ’s effort to draw an adverse credibility inference from the fact that claimant engaged in work activity for a brief time during the period at issue; indeed, notes the Court, the fact that a claimant attempted (and failed) to return to work may actually support, rather than undermine, his subjective reports of disabling pain. Finally, the majority here, like the panel in Orn, remands the case for an outright award of benefits. In dissent, Judge Beezer takes issue with this resolution (he would remand for a new credibility determination), and he also seems to disagree with the majority’s formulation of the credibility standard (Judge Beezer would require only “specific and legitimate,” rather than “clear and convincing,” reasons for disbelieving the claimant’s testimony). [Download]

In a helpful opinion for disability claimants, the Court reverses the administrative denial of benefits, concludes that the ALJ erred in not crediting either the treating physician’s opinions or the claimant’s subjective testimony, and remands for an outright award of benefits. Excellent language on the ALJ’s duty to (1) provide “specific and legitimate reasons” for not following the treating doctors’ opinions; and (2) to provide “clear and convincing” reasons for discrediting the claimant’s subjective testimony, where (as here) the claimant’s medical impairments were well established, and the ALJ “did not find ‘affirmative evidence’ that the claimant was a malingerer.” Judge Willie Fletcher’s opinion also overturns the ALJ’s rulings that (1) the claimant failed to follow a prescribed treatment for obesity, and (2) this alleged failure also negatively impacted his credibility. The Court goes on to conclude that the claimant’s failure to seek medical treatment during some time periods could not be the basis for an adverse credibility determination when the reason he did not seek treatment was his inability to afford it. Finally, the Court chastises the ALJ for basing his adverse credibility finding on the ALJ’s personal observations alone, and the Court remands for an outright award of benefits rather than for further administrative proceedings. [Download]

The Court of Appeals affirms, in a troubling opinion, the denial of SSI disability benefits. Judge Wallace describes the ALJ’s summarizing of evidence “that tended to show that [the claimant] engaged in drug-seeking behavior,” without expressly stating why the discussion was relevant, but noting that a doctor who mentioned the claimant’s prior drug problems “also found his testimony not credible.” One interpretation of the opinion is that it’s okay to disbelieve a claimant simply because s/he has a drug abuse history. Judge Wallace also brushed aside claimant’s argument that the ALJ improperly neglected to take into account his physical impairments, concluding that the ALJ’s error was “harmless.” [Download]

Tenants cannot recover damages against tenant screening agencies for filing incomplete reports if the prospective landlord would have rejected their applications anyway, the Court of Appeal has held.

The tenants sued under the Consumer Credit Reporting Agencies Act (CCRAA), Civ. Code § 1785 et seq., arguing that the defendant agency had accurately reported the filing of unlawful detainer actions against the tenants, but failed to report that the actions were later dismissed, or in one case the judgment was satisfied. The Court of Appeal affirmed summary judgment, relying on undisputed evidence that the prospective landlords would have rejected their applications even with the additional knowledge because of a blanket policy against accepting tenants with an unlawful detainer action (however resolved) on their record. [Download]

A homeowner may challenge non-judicial foreclosure procedures without being subjected to the anti-SLAPP suit statute (Code Civ. Proc. § 425.16 et seq.), the Court of Appeal has held. Noticing a non-judicial foreclosure sale, unlike an actual lawsuit, is not an exercise of free speech or free petition rights, the court reasoned. [Download]

A claim for relocation benefits must describe the loss to the claimant sufficiently that an agency can investigate the claim, the Court of Appeal has held. In this case, failure to do so subjected the claimant to forfeiture of rights under the 180-day statute of limitation imposed by 25 Cal. Code Regs. § 6088. Though the case concerned a commercial rather than a residential claimant, some of the principles announced by the court could apply across the board. [Download]

A suit challenging a landlord’s allegedly illegal notice of termination of tenancy is potentially subject to the anti-SLAPP statute, the Court of Appeal has held.

Tenants sued a landlord, charging that a termination notice, later withdrawn, was illegal under San Francisco ordinances. The landlord moved to strike under the anti-SLAPP suit statute, Code Civ. Proc. § 425.16. The Court of Appeal held that (1) the termination notice, as prelude to suit, was an activity protected under § 425.16; and (2) the case should be remanded to the trial court to decide the second prong of the anti-SLAPP suit analysis: whether the landlord was likely to prevail. That, in turn, would depend on whether the landlord’s action was protected by the litigation privilege, as most recently interpreted in Action Apartment Association v. City of Santa Monica, 41 Cal.4th 1232 (2007). [Download]