Wednesday, August 16, 2017

The Test We Have Is Fine, Thanks...

ZL Techs. v. Does 1–7, No. A143680 (D1d4 Jul. 19, 2017)

Some anonymous but allegedly former employees of Company put up negative reviews about Company on, a website that posts reviews of workplaces. Company sued employees as Does and then subpoenaed Glassdoor for their identifying info. Glassdoor objected on numerous grounds and the trial court denied Company’s motion to compel. Company was unsuccessful in identifying the Does by other means, and thus unable to serve them. The case was dismissed without prejudice under Code of Civil Procedure § 583.420, for failure to timely serve the Defendants.

Monday, August 14, 2017

Vex Ain't a Family Affair

Hupp v. Solera Oak Valley Greens Assoc., No. E065766 (Jun. 23, 2017) 

Son has been previously declared a vexatious litigant. But the operative complaint in this case—about a completely stupid anti-pit bull HOA covenant—isn’t brought by Son. It was filed by Mother, although she’s also pro se. Defendants nonetheless filed an ex parte application seeking dismissal under Code of Civil Procedure § 391.7(c), on the grounds that pre-filing permission was not obtained. The trial court granted the application and dismissed the case.

Generally, being a vexatious litigant is a personal disability that applies only to the litigant’s bringing his own claims as a pro se. That gets extended a little—like in the recent Kinney v. Clark case—where the vexatious litigant is using an attorney as a sockpuppet to litigate on his own behalf. It could also apply if the plaintiff were some kind of alter ego of the vexatious litigant. But none of these apply, as least as to Mother’s claims brought to enforce her own rights. (Although the “puppet” doctrine did apply to a few claims that Mother was bringing to enforce Son’s rights.) So the trial court erred by striking Mother’s claims under § 391.7.


Thursday, August 10, 2017

I Guess It's Not Over

Cnty. of L.A. Bd. of Supervisors v. Superior Court, No. B257320A (D2d3 Jun. 22, 2017)

This is the remand in County of L.A. v. Superior Court, the Supreme Court’s big decision on the scope of the attorney client privilege from the end of 2016. As when this case was before the Court of Appeal the first time around, the panel seems inclined to read the privilege expansively, even after getting reversed for doing that the first time around.

Friday, August 4, 2017

Nuthin' But a Fee Thang

Monster, LLC v. Superior Court, No. B278289 (D2d7 Jun. 21, 2017)

Plaintiff here claims that it was defrauded out of an interest in Dr. Dre’s headphone company, Beats by Dre, right before Dre sold Beats to a certain iconic computer company for $3 billion. But over the course of their relationship, Plaintiff and Beats had entered several agreements that contained both broad release language and provisions that that permitted a prevailing party to recover its fees. So in response to Plaintiff’s tort claims, Beats brought cross-claims alleging that Plaintiff was breaching the releases, thus causing Beats damages in the form of having to incur fees to defend the cases.

Monday, July 31, 2017

Pleas in Abatement Are This Disfavored

The Rossdale Grp. v. Walton, No. H043476 (D6 Apr. 15, 2017)

This is a weird and kind of narrow opinion about standing that is mostly shaped by how the issue was raised the superior court. The case is a malicious prosecution action against a Lawyer who was (allegedly) in the business of extorting settlements from meritless claims. 

Friday, July 28, 2017


Ryan v. Rosenfeld, No. S232582 (Cal. Jun. 15, 2017)

Code of Civil Procedure § 663 permits a post-judgment motion to vacate a judgment, under certain specific circumstances. Generally, but without elaboration, a bunch of cases say that an order denying a § 663 motion is an order made after an appealable judgment, and thus appealable under § 904.1(a)(2). Problem is that a 1978 Supreme Court caseClemmer v. Hartford Insurance Company, 22 Cal.3d 865 (1976)—somewhat inexplicably says it isn’t, in tension with a bunch of earlier Supreme Court cases.

The Court of Appeal here felt bound by Clemmer, so it held that the appeal—timely based on the date of entry of the § 663 order but tardy if counted from the date the underlying judgment was entered—needed to be dismissed. The Supreme Court stepped in to clarify the situation. And so the Court unanimously clears the brush without much ado: Clemmer was wrong. An order denying a § 663 motion is separately appealable under § 904.1(a)(2). And Clemmer is disapproved.