Friday, January 20, 2017

Five-Year Rule Stops on Swearing of Venire

Stueve v. Buchaleter Nemer, No. G052779 (D4d3 Jan. 18, 2017)

Absent grounds for tolling, a California case needs to be “brought to trial” within five years of filing. See Code Civ. Proc. §§ 583.310, 583.340, 583.360. In a jury trial situation, “brought to trial” means “when the jury is impaneled and sworn.” In this case, the venire was assembled and prospective jurors were sworn for voir dire three days before the five years was up. Five days later (including an intervening weekend) voir dire was ongoing. Defendant moved for dismissal under the five-year rule, which the trial court granted, holding that no jury had been “impaneled and sworn” when the clock ran out.

The Court of Appeal reverses. It holds that a jury is “impaneled and sworn” when the venire is assembled in the courtroom and given their initial oath to answer voir dire questions truthfully. The standard does not require the actual impaneling of the twelve-member jury who will be deciding the case or the swearing of that jury to their duties in deciding the case. Both the provisions of the Code of Civil Procedure that set out how jury service works and the relevant case law bear that out.


Reversed.

Thursday, January 19, 2017

Can't Force a Waiver of the Psychotherapist Privilege by Claiming that an Adversary Is Not Mentally Ill.

N.S. v. Superior Court, No. A148694 (D1d4 Jan. 17, 2017).

This dependency case raises an interesting issue about at-issue privilege waivers that people often miss. A party can waive a privilege by injecting an issue into a case where the privileged communications are integral to the issue. But the converse isnt true. The other side cant force the holder of a privilege waive by presenting an issue where privileged communications might be evidence that is useful to the proof or disproof that issue.  Which is what happened here.

Petitioner is a Minor who was receiving foster care services even after she turned eighteen. The Welfare & Institutions Code has list of eligibility factors for ongoing foster care, which include certain kinds of mental illness that prevent the ward from going to school or holding down work.The Agency tried to terminate the services. At a hearing regarding her status, when asked why she still qualified, the Minor said she had a mental condition. The Agency then called the psychologist, who said she had written a letter explaining that the Minor did, in fact, qualify. But when asked about her diagnosis and its basis, the psychologist refused to answer on the grounds of Evidence Code § 1014’s psychotherapist-patient privilege. The trial court held that any privilege was waived on account of the testimony, and Minor took a writ.

Under Evidence Code § 1016, the privilege does not apply to a “communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered” by the patient. As the Court of Appeal explains, § 1016 “applies when the patient’s own factual allegations raise an issue, not when the patient does no more than joining an issue by denying allegations.” “That is, the patient-litigant exception of section 1016 of the Evidence Code compels disclosure of only those matters which the patient himself has chosen to reveal by tendering them in litigation.” (emphasis added, internal quotes omitted). Because here, the Minor's alleged failure to come within one of the statutory grounds was put into play by the Agency, not the Minor, the at-issue waiver rule is inapplicable. The fact that the Minor's treatment was implicated by her denial that she failed to meet the statutory requirements did not mean that she affirmatively put confidential communications rendered as part of her treatment at issue. That are, of course, other ways to get at the information at issue, such as a neutral mental health evaluation, which wouldn
’t be privileged, but the court doesn’t reach whether those should have been ordered here.

Writ granted.

Monday, January 16, 2017

A Fair Report of Your Own Complaint Is Still a Fair Report

Healthsmart Pac., Inc. v. Kabateck, No. B264300 (D2d1 as modified Jan. 10, 2017)

This is an appeal of a granted anti-SLAPP motion arising from allegations that some plaintiff lawyers defamed a hospital when they gave statements about the litigation in the press. Unsurprisingly, the order is affirmed.


Tuesday, January 10, 2017

A Jurisdiction-less SLAPP Is Still a SLAPP

Barry v. State Bar, No. S214056 (Cal. Jan. 5, 2017)

The Court of Appeal decided this anti-SLAPP case back in the summer of 2013. It was one of the very first cases I blogged about. The court held that a trial court didn’t have the power to grant an anti-SLAPP motion and award attorneys’ fees when the case was entirely lacking in subject matter jurisdiction.

But in a short unanimous opinion by Justice Kruger, the Supreme Court goes the other way. The court holds that under a court’s jurisdiction to assess its own jurisdiction, it has the power to resolve an anti-SLAPP motion where the lack of potential success is grounded in that very lack of jurisdiction. 


Although an anti-SLAPP motion can potentially reach the underlying substantive merits of a claim—problematic for a court without subject matter jurisdiction—when the lack of potential success is grounded in an absence of jurisdiction, there’s no such overreach. So the Court of Appeals analogy to cases holding that a pending anti-SLAPP appeal divests the trial court of jurisdiction to resolve issues connected to the appeal was off base, even if some of the language in those cases was directed to jurisdictional concerns. Moreover, to hold otherwise would invite a new form of SLAPPs—meritless cases brought without jurisdictionthat would undermine the core purpose of Code of Civil Procedure § 425.16.

That all being the case, courts also have the ancillary authority to award fees pursuant to the jurisdictional determination, just as they can decide the collateral issue of a cost award under § 1032 in connection with a jurisdictional dismissal.

Court of Appeal reversed.

Iskanian Applies to Threshold PAGA Issues Too.

Hernandez v. Ross Stores, Inc., No. E064026 (D4d2 Jan. 3, 2017)

Along the same lines as the recent Tanguilig case, this appeal addresses a motion to compel arbitration over an individual’s PAGA claim. As we’ve discussed many times, in the Iskanian case the Supreme Court held that because PAGA claims essentially belong to the state, they aren’t subject to arbitaration agreements between employer and employee. As the court explains here, that covers the whole claim, including whether plaintiff is an “aggrieved person” under PAGA and thus has standing to sue. There’s no basis to compel that determination to arbitration, even if it is technically predicate to the application of PAGA.


Affirmed.

Monday, January 9, 2017

CC 1717's Prevailing Party Definition Doesn't Apply to Contract Shifting Tort Fees

Khan v. Shim, No. H041608 (D6 Dec. 29, 2016)

Plaintiff in this case voluntarily dismissed his complaint, which alleged both contract and tort causes of action. The parties’ contact included a fee-shifting provision permitting a prevailing party in any lawsuit concerning the “terms, interpretation or enforcement or the rights and duties of any party thereto” to recover his fees. The trial court determined that Defendant was prevailing party and awarded fees accordingly. But Court of Appeal reverses.

The issue is Civil Code § 1717(b)(2), which says that in an action on a contract where the contract awards fees to the winner, there is no prevailing party when a case is voluntarily dismissed or settled. That rule differs somewhat from the general prevailing party rule in Code of Civil Procedure § 1032(a)(4), which says that when no relief is awarded, the defendant prevails. So to the extent the case was brought under a contract theory, nobody prevailed.

But § 1717 applies only to an action “on a contract”—it doesn’t apply to tort claims. To the extent a contract permits a fee award for torts, they are still recoverable under the costs statute, which permits attorneys’ fees authorized by contract. Code Civ. Proc. § 1033.5(a)(10)(A). And for a tort claim, the prevailing party would be defined under Code of Civil Procedure § 1032(a)(4), not Civil Code § 1717. So to the extent the contract permitted recovery of tort fees and claim was grounded in tort, Defendant could potentially recover his fees.

The court goes on to find that the contract was broad enough to permit fee shifting on some tort claims. It reads the “thereto” in the phrase “terms, interpretation or enforcement or the rights and duties of any party thereto” to refer to any rights and duties of the parties and not to the further antecedent references to the rights under the contract itself. So the contract can shift fees for tort claims that arise from the rights and duties of the parties. Because the trial court didn’t make any allocation between tort and contract claims, however, it should do that on remand.


Reversed and remanded.