Tuesday, September 20, 2016

But How Can a Brown Act Claim Be a SLAPP?

Cruz v. City of Culver City, No. B265690 (D2d8 Aug. 8, 2016)
 

We’ve had a pretty good run of decent anti-SLAPP decisions lately, so I guess I shouldn’t be too disappointed with this one. But it’s a real stinker.

Plaintiffs sued a city for violating the Brown Act by taking official actions that weren
t on its meeting agendas. The City filed an anti-SLAPP motion. According to the Court Appeal, the public interest litigation exception in Code of Civil Procedure § 425.17(b) does not apply to any party “seeking any personal relief.” Because the substantive city issue under consideration that Plaintiffs contend resulted in the Brown Act violations—something about parking regulations—was an issue in which Plaintiffs had some financial interest, the court finds that the exception does not apply.

Plaintiffs’ then apparently conceded that the case actually arises from protected activity. They disastrously failed to anticipate City of Montebello—decided by the Supreme Court on the same day this opinion was ordered published—which made abundantly clear that actions challenging the official legislative actions of governments (as opposed to individual capacity suits against government officials) don’t “arise from protected activity” under the anti-SLAPP statute.

The court goes on to find that plaintiffs failed to establish a probability of prevailing to prevail in their Brown Act challenge.

Affirmed.

This is a terrible precedent. There
s still a motion to modify pending. We'll see.

Monday, September 19, 2016

Putting the System on Trial!

Weiss v. City of LA, No. B259858 (D2d4 Aug. 8, 2016)
 

The Vehicle Code provides for three separate levels of review of parking tickets: First an initial paper review, conducted by “the issuing agency,” then a hearing before an ALJ, then an appeal de novo in Superior Court. But the City of LA delegates the “initial review” to the private vendor it pays to process tickets. Plaintiff here got a $55 ticket, for which his initial review was denied by the vendor. Instead of seeking administrative review, he just paid the fine and sought mandamus directing the city to conduct its own initial reviews.

He won. The trial court found that the city had a non-delegable duty to conduct its own review. The trial court then awarded him $721,994.81 in attorneys’ fees under the private attorney general statute, Code of Civil Procedure § 1021.5. The city appeals both the merits and the fee award.

There’s a standing issue lurking here—plaintiff voluntarily paid the fine, so seems that he’s not harmed enough to take a writ. The Court of Appeal thus finds that he “lacks general standing to pursue mandamus relief.”


But this is an area—like taxpayer standing under Code of Civil Procedure § 529awhere California’s standing doctrines are far more liberal than what would be required to show standing under Article III in federal court.
So the court goes on to find that plaintiff has something called “public interest standing,” which relaxes the requirement of actual harm when “the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty.” Given the enormous burden of challenging the whole review system that would be put on someone contesting an ordinary parking tick, the court finds that standard met. To do otherwise would effectively insulate the city’s practice from judicial review.

After affirming on the merits, the court also affirms the fee award. Generally, the private attorney general doctrine permits an award of fees when: (1) the case enforces an important right affecting the public interest; (2) the case confers a significant benefit on a large class of persons; and (3) the burden of private enforcement makes the award appropriate. Plaintiff was successful in enjoining an unlawful practice that had persisted for more than a decade, and which affected millions of parking citations, so the court finds the standard satisfied.

Affirmed.

Tuesday, September 13, 2016

This Release Does Not Compute

Ignacio v. Caracciolo, No. B266930 (D2d8 Aug. 3, 2016)
 

This is another case where an insurance company gets over its skis by making a Code of Civil Procedure § 998 offer of judgment that tries to do more than just enter judgment in the case along the terms of the offer. This time, the offer includes an agreement to a broad general release, including a waiver of unknown claims under Civil Code § 1542. Plaintiff didn’t take the deal. At trial, Insurer won a verdict below the offer’s cash consideration, so it sought cost shifting. On appeal, the Court of Appeal finds the offer invalid. Problem is, when a release is broader than the claims in the case, the value of the offer vs. what was won at trail can’t really be rationally compared. Suppose, for instance, that plaintiff had some multi-million dollar claim against the insurer on some other issue that wasn’t in the case. Since the release offered was far broader than the case with respect to the releasing parties, the released parties, and the claims being released, it couldn’t be fairly valued under the § 998 calculus.

Affirmed.

Friday, September 9, 2016

Who Killed the Samurai?

Hayward v. Superior Court, No. A144823 (D1d2 Aug. 3, 2016)

This case—a contentious divorce—is pretty ugly. The parties stipulated to have the case resolved by a private judge, appointed by the family court as a Pro Tem. But things go downhill from there.

Thursday, September 8, 2016

The Ground Rules on John Doe SLAPPs

John Doe 2 v. Superior Court, No. B269087 (D2d3 Aug. 2, 2016)
The anti-SLAPP statute provides for an automatic stay of discovery. See Code Civ. Proc. § 425.16(g). The court has discretion to permit limited discovery on showing of good cause, but orders doing so are few and far between. In particular, when a defamation case is met with an anti-SLAPP motion, prior cases have established that, before it can get relief from the discovery stay, plaintiff needs to make a prima facie showing that the statement was provably false, defamatory in meaning, and unprivileged.

Defendant Doe here used an anonymous Gmail account to send emails to a party with whom Plaintiff was enmeshed in a business dispute. Plaintiff sued anonymously, alleging that the Doe’s emails were defamatory. Plaintiff subpoenaed Doe’s account-holder information from Google. When Doe got notice of that, he appeared and filed an anti-SLAPP motion, which put the kybosh on any discovery. But Plaintiff moved to lift the stay under § 425.16(g) and the trial court agreed. But Doe took a writ, which the court here grants.

As noted, to get discovery over Doe’s identity, Plaintiff needed to affirmatively show that the statements were false, capable of defamatory meaning, and unprivileged. It didn’t meet that burden here. Nor did the court buy Plaintiff’s back-up argument—that it needed to discover who Defendant was to know if he might have been a party to an arbitration agreement. Whatever interest Plaintiff had in some theoretical right to compel arbitration didn’t overcome the protections that § 425.16(g) gives to the right to free and anonymous expression.

Writ granted.

Wednesday, September 7, 2016

A Course Correction on the Anti-SLAPP Journey

Baral v. Schnitt, No. S225090 (Cal. Aug. 1, 2016)

In first of several pending cases addressing the anti-SLAPP statute, the Supreme Court resolves a longstanding split about how to handle so-called “mixed” causes of action. That is, causes of action that implicate both protected and unprotected activity. I’ve discussed this split previously here and here, as well as in my original post on the Court of Appeal’s decision in this case. 
In a cogent analysis focusing on both the text and the practicalities of the issue, the Court ultimately adopts the current minority rule.