Tuesday, July 30, 2013

SLAPPs and the Epistemology of Nothingness

Trapp v. Neimann, E054908 (D4d2 July 24, 2013)  

In a seemingly ordinary analysis on an anti-SLAPP motion, the court finds that all five causes of action in a complaint arise from litigation related activity and that they cannot succeed under the Civil Code § 47(b) litigation privilege. But a question is begged. Does a cause of action arise from protected activity when it arises from nothing at all?

Thursday, July 25, 2013

Man, You Should Have Taken that 998 Offer ...

Mon Chong Long Trading Corp. v. Superior Court, No. B240828 (D2d3 July 23, 2013)

The application of offer of judgment rule under Code Civil Procedure § 998 is one of the most litigated appellate issues in California Procedure. The question presented was whether a dismissal without prejudice on the eve of trial is a less favorable termination subjecting the plaintiff to a potential shifting of expert witness costs under § 998. According to the court, the answer is yes.

So Much for Rule of Court 8.1125(d) (and Some Thoughts on Stare Decisis from Judge Wiley)

Farmers Insurance Exchange v. Superior Court, No. B24901 (D2d3 July 23, 2013)

Does the Supreme Court’s subsequent depublication of a key authority relied upon by a superior court constitute a “change in law,” such that the court can reconsider its order under Code of Civil Procedure § 1008(c), even though the order is outside the ten-day window for a party to move for reconsideration under  § 1008(a)? Apparently it does.

When It Comes to Class Arbitration, the New Boss Is the Old Boss if the Claim Has Already Accrued

Avery v. Integrated Healthcare Holdings, Inc., No. G046202 (D4d3 July 23, 2013)

In a largely fact-bound case, the court upheld a trial court’s ruling that plaintiff/employees were not be bound by class action waiving arbitration clauses in their employment agreements and the resulting denial of company’s motion to compel arbitration.

A Cost, Is a Cost, Is a Cost ...

Williams v. Chino Valley Independent Fire District, No E055755 (D4d2 July 23, 2012) 

Plaintiff lost a Fair Employment and Housing Act case and the trial court awarded costs under Code of Civil Procedure § 1032(b). On appeal, Plaintiff argued that costs could be awarded to a prevailing FEHA defendant only if the defendant satisfied the standard necessary to recover its attorneys fees under FEHA, i.e., that plaintiffs’ case was “frivolous, unreasonable, or without foundation.” The court of appeal rejected the argument and upheld the fee award.


Tuesday, July 16, 2013

New Case, New Summons, New Service. No Exceptions.

Abers v. Rohrs, No. G047034 (D4d3 July 13, 2013).

Nothing like getting things started with a dispute over the sufficiency of service. It would seem that trial counsel for the plaintiff here violated ALAS rule number one: Do Not Blow Jurisdictional Deadlines. Having done so, nothing in law or equity could save him or his client.

Monday, July 15, 2013

Welcome to the Jungle ...

I spent three years clerking for various judges in federal district court in Los Angeles before starting as a law firm associate in the LA office of Kirkland & Ellis. By the time I started my practice, I was really comfortable with federal court.  I knew the rules, the general orders, and, to some degree, the procedural peccadilloes of many of the individual judges on our rather large (by federal standards) court.

I knew next to nothing, however, about state court trial practice.  My only state court experience was a two week stint of jury service in a fender bender case during my clerkship.  From that, all I knew about state court was that, compared to federal court: (1) the lighting was bad; (2) the hallways crowded; (3) the courtrooms tiny; and (4) the attorneys far less deferential to the judges.  (They did, however, have a better cafeteria.)

It was only after about a year with the firm, in a practice that was, back then, mostly devoted to federal white collar criminal defense, that I was put on my first civil case in California state court.  The first order I received in that case was an opinion on a demurrer.  The order chastised me for not including "a demurrer" in my filing, although the court stated it "was able to puzzle out" the grounds from the brief and mostly granted the motion anyway.

"What is this?" I asked my soon-to-be-state-courts mentor Jeff, a reluctant but wizened hand at state court practice. "So under Rule of Court 3.1320(a), I'm apparently not only supposed to file a notice of motion and a memorandum, but also a separate document called a 'demurrer,' which just lists the causes of action and says I'm demurring to them?  What is the point of that?  Why require such a worthless piece of paper?"

Jeff smiled a little and leaned back in his chair. "Welcome to the jungle . . . ," he said.