Monday, May 21, 2018

Can’t Wait for the Perfect When the 5-Year Rule Looms

Tanguilig v. Nieman Marcus Grp., No. A141383 (D1d4 Apr. 16, 2018)

Under Code of Civil Procedure § 583.310, a case
must be dismissed with prejudice if it has not been brought to trial within five years of filing. The five years is subject to various kinds of tolling. Plaintiff in this case—a wage-and-hour class action combined with some PAGA claims that was filed in 2007—needs three different kinds of tolling to get within the five year window. 

Her key tolling argument here comes under § 583.340(c), which stops the clock during periods where it is “impossible, impracticable, or futile” to bring the case to trial. That section permits tolling due to circumstances, beyond the plaintiff’s control, that prevent her from expeditiously bringing her case to trial. 

Unlike most of Defendant’s employees, Plaintiff quit instead of signing an employment contract containing an arbitration clause with a class action waiver. That caused some typicality issues for her class action. So several years into the case, Plaintiff added an additional class rep who had signed the agreement. But that solution led to bigger problems. It resulted in the trial court compelling a significant part the new rep's case to mandatory non-class arbitration. Notably, almost a year later, the trial court reconsidered its stay and ultimately lifted it. (The reconsideration was ultimately affirmed on appeal almost three years ago.)

Now, Plaintiff seeks tolling under § 583.340(c) for the period in which the stay was in effect. But none of the stuff with the new rep prevented Plaintiff from proceeding to trial on her own (smaller) part of the class, which wasn’t stayed. The fact that Plaintiff preferred to go to trial with a bigger, better class didn’t mean that going to trial was “impossible, impracticable, or futile” under § 538.340(c).


Friday, May 18, 2018

I See Alter Egos...

Benaroya v. Willis, No. B281761 (D2d4 May 17, 2018)

Bruce Willis has some kind of deal with a production company. They get into a dispute. Like pretty much every Hollywood deal nowadays, the agreement calls for JAMS arbitration.

Willis isnt getting paid his due. So Willis and ProdCo go to JAMS and start arbitrating. At some point, however, Willis likely figures out that even if we wins, ProdCo—a one-man operationcan’t or wont pay up. So Willis asks the arbitrator to amend his demand to bring in ProCo’s owner/operator under an alter ego theory. The arbitrator agrees. Ultimately, the arbitrator finds ProdCo liable to Willis for 5 million bucks, and that ProdMan is, in fact, ProdCo’s alter ego. That makes ProdMan joint and several on the judgment. The trial court confirms the award.

The issue on appeal is that ProdMan isn’t a signatory to the contract. Which normally means he can’t be required to arbitrate at all. There is an exception to that rule, however, if the non-signatory is the alter ego of someone who signed the contract. But that doesn’t solve the problem here, because now the alter ego question is baked into the threshold question of whether ProdMan can even be required to arbitrate. And absent ProdMan’s consent, only a court, not an arbitrator, is allowed to make that call. Which means the arbitrator exceeded his authority and thus that the award against ProdMan needs to be vacated.


Tuesday, May 15, 2018

Blurring the Line Between Governors and Government

Guarino v. Cnty of Siskiyou, No. C076629 (D3 Mar. 29, 2018)

In this case, a former county counsel in Siskiyou County sued the County, the members of its board of supervisors, and a county administrator, alleging in nineteen different causes of action that he was unlawfully removed from his position. Defendants responded with an anti-SLAPP motion, arguing that the suit arose from a disciplinary investigation of workplace harassment. The trial court granted the motion in full.

First, Counsel didn’t challenge the grant of the motion on a bevy of causes of action, so those are affirmed without discussion. As to seven others, Counsel failed to specifically address them except by incorporating his trial court memo of Ps & As. Can’t do that. So that appeal is forfeited.

That leaves two causes of action—one for breach of contract, and the other for constructive discharge. The Court of Appeal affirms these too, finding that the claims arose out of an internal investigation that was an official proceeding authorized by law, and thus that they addressed activity protected under Code of Civil Procedure § 425.16(e)(1) and (2). And since Counsel didn’t make much of an effort to support the claims on the merits, the motion was correctly granted.


In one respect, the result here seems problematic. The claims against the individuals are pretty clearly SLAPP-able under City of Montebello v. Vasquez, 1 Cal. 5th 409, 424 (2016). But the claim against the County are not.

As cases following Vasquez—cases like Area 51 Prods. v. City of Alameda—explain, the anti-SLAPP statute often protects the conduct of individual government employees who investigate or help a public agency come to a decision, or even are the decision makers. But a public agency
s the decision itself, when alleged to be unlawful, is generally not protected. So lawsuits against public entities challenging the legality of official government decisions do not ordinarily arise from protected activity. See, e.g., Park v. Board of Trustees of Cali. State Univ., 2 Cal. 5th 1057 (2017).

The theory on Plaintiff
s contract claims is that the County terminated Counsel’s employment under conditions it wasn’t allowed to. There’s nothing expressive about that.

Friday, May 11, 2018

The Taxman Commeth

City & Cnty. of S.F. v., No. A150385 (D1d4 Mar. 28, 2018)

In investigating tax evasion, San Francisco’s tax collectors served a subpoena for user data on an Internet home rental listings site. The superior court compelled Site to produce the records. Site says that violates the Stored Communications Act and the constitutional rights of its users. 

Thursday, May 10, 2018

Section 998 Offer Exclusive of Fees Is Unambiguous

Timed Out LLC v. 13359 Corp., No. B280301 (D2d1 Mar. 27, 2018)

In a case where attorneys’ fees are recoverable as a cost, a Code of Civil Procedure § 998 offer of judgment that offers a payment “exclusive of reasonable costs and attorneys’ fees, if any,” unambiguously permits an accepting plaintiff to move for recovery of the attorneys’ fees in the event she accepts the offer. Which means the offer made in this case was valid.