Thursday, August 29, 2013

A Move to Henceforth Be Known as a Callahan's Choice

Roldan v. Callahan & Blaine, No. G047306 (D4d3, as modified, Sept. 19, 2013) 

Lawyers in a dispute with their former clients are given a choice between fronting fees for an arbitration or waving their right to arbitrate and defending their case in court.

Wednesday, August 28, 2013

A Few Words on Sandbagging...

Jay v. Mahaffey, G047325 (D3 Aug. 23, 2013) 

The court affirmed the denial of a SLAPP motion arising out of a malicious prosecution case because the plaintiffs came forward with sufficient prima facie evidence of each of the elements of their claims.

Majority Affords No Tolling for Minority

Barker v. Garza, No. B237916 (D2d8 Aug. 22, 2013) 

In a split decision, the court of appeal holds that tolling of a statute of limitations due to the plaintiff’s minority status under Code of Civil Procedure § 352(a) does not apply to claims brought under the Drug Dealer Liability Act. In reaching that result it suggests a broad interpretive rule that the dissent finds particularly problematic.

Friday, August 23, 2013

No Jurisdiction, No Fees

Barry v. State Bar, No. B242054 (D2d2 Aug. 21, 2013) 

The superior court has no authority to award fees to a defendant who, in litigating an anti-SLAPP motion, establishes that there is no likelihood of success because the trial court lacks subject matter jurisdiction over the plaintiff’s claim.

Sob Stories and Accomodating Experts' Vacations Do Not Merit a New Trial

Rayii v. Gatica, No. B236626 (D2d3 Aug. 20, 2013)

The court of appeal affirms the denial of plaintiff’s new trial and JNOV motions after she obtained a small verdict in a car crash case. Most of the issues addressed are weight of proof issues that are not germane to the procedural concerns addressed in this publication. The opinion does, however, addresses a few procedural issues.

Individual Issues Predominate in Tenants' Suit to REAP Their Landlord

Hendleman v. Los Altos Apartments, No. B235404 (D2d3 Aug. 20, 2013)

Denial of class certification was upheld in a landlord/tenant dispute because common questions of liability did not predominate over individualized issues regarding the condition of tenants' apartments and the effect of the landlord’s deficient maintenance on individual tenants.

Thursday, August 22, 2013

Borrrowed Exceptions to the Litigation Privilege

People v. Persolve, LLC, No. F064572 (D5 Aug. 15, 2013) 

When a claim alleging a violation of the unlawful prong of the Unfair Competition Law arises from conduct that would generally be privileged under the Civil Code § 47(b) litigation privilege, the privilege does not apply when a “borrowed” statute is specific and inconsistent its application.

Wednesday, August 14, 2013

An Apprendi for EmDom

City of Perris v. Stamper, No. E053395 (D4d2 Aug. 9, 2013)

The court of appeal holds that a condemnee in an eminent domain action has a right to a jury trial on all predicate issues of fact that relating to the calculation of just compensation.

Friday, August 9, 2013

Bad Breaks with Partially Published Opinions

Civic Partners Stockton v. Youssefi, C067304 (D3 Aug. 8, 2013)

It has long been established in federal practice that the fact that the opposing party produced a document in response to an RFP asking for it is prima facie evidence that the document is what it purports to be. See Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (attorney declaration sufficient to authenticate documents when they appear to be authentic and have been produced by opponent in discovery). While that is surely the law in California too, state practitioners have long been deprived of a case that actually says so.

Pro Se Wins Battle of the Jury Forms

Kim v. De Maria, No. BV030068 (L.A. Super. App. Div. Aug 8, 2013)

An indigent defendant in unlawful detainer action requested a waiver of court costs and fees, including jury fees. The clerk signed and returned his form proposed order, but did not check the box for waiver of jury fees. The trial court subsequently denied defendant a jury trial because he had not timely paid his fees. Defendant lost and then appealed. The appellate division held that because, under Rule of Court 3.50, a party could permissibly seek a waiver of all fees in his initial fee waiver form, and because, under Government Code § 68634(d), the clerk had only the authority to grant, but not to deny, the request, the clerk’s order must be considered a grant of a jury fee waiver. Because fees were waived, failure to pay them did not waive jury.


An Interesting Upshot on Perry v. Brown

Mission Springs Water District v. Verjil, E055176 (D4d2 Aug. 7, 2013)

Reversing a prior precedent, the court held that a pre-election challenge to a proposed initiative arises from the initiative’s sponsor’s petitioning activity, and thus is protected activity under the first prong of the anti-SLAPP analysis. Because, however, the government entity making the challenge had a likelihood of success, the motion was properly denied.

This Is Not of Public Interest. Someone Better Tell E! News.

In a defamation case involving some celebrities I’ve never heard of, the court upheld the denial of an anti-SLAPP motion because the statements involvedaccusations that the plaintiff, a stylist, had been stealing clothingdid not involve a public issue or an issue of public interest and thus did not satisfy the “arising from” element of the anti-SLAPP analysis.

Show Me the Metadata!

Ellis v. Toshiba America Information Systems, Inc., B220286 (D2d1, as amended, Sept. 10, 2013).
The underlying action in this case—a consumer product class action over defective Toshiba laptops—was settled in a coupon settlement that was granted final approval in May 2007. But that is not the subject of the appeal. In the ensuing six years, the defendant and one of the plaintiff lawyers engaged in a protracted battle over the attorney’s request for $24.7 million in attorneys fees. Because the attorney didn’t keep good records, disobeyed the court’s orders in the fee litigation, and falsified the record on appeal, the ultimate result was an award of appellate sanctions, the affirming of significant discovery sanctions awarded by the trial court, the limitation of the fee award to costs and fees incurred by staff, and a referral to the state bar.

Tuesday, August 6, 2013

A Bad Yelp Review Can Be Murder . . . Defamation Too!

Bently Reserve L.P v. Papaliolios, A136191 (D1d1 July 30, 2013) 

On an anti-SLAPP motion involving a defamation claim over a Yelp review, where the first prong is admitted, the court finds that the plaintiff met its burden to have show a likelihood of success by coming forward with prima facie evidence of the falsity of plaintiff’s statements.

Mine's Digging for Dirt on Enviromental Group Is Not Protected Activity

Renewable Resources Coalition, Inc. v. Pebble Mines Corp., BC456803 (D2d3 July 30, 2013)

Defendant allegedly obtained plaintiff's confidential documents by bribing plaintiff's former fiduciary to hand them over. Defendant then used  the documents against the plaintiff in an administrative proceeding and a “smear campaign. Is that conduct protected under the anti-SLAPP statute? Looking to the gloss on the word "gravamen," in the anti-SLAPP case law, the Second District says no.