Thursday, December 29, 2016

No Extra § 170.6 Strike After Interlocutory Reversals

McNair v. Superior Court, No. B275282 (D2d3 Dec. 23, 2016)

This case concerns the ability of a party who has already filed on peremptory strike under Code of Civil Procedure § 170.6 to file a new one after a successful interlocutory anti-SLAPP appeal. In a pleasingly brief and cogent opinion by Justice Aldrich, the Court of Appeal says no. 

Not Status Quo Is Not Status No.

Integrated Dynamic Sols. v. Vitavet Labs, Inc., No. B268311, (D2d2 Dec. 22, 2016)

Plaintiff in this case won a preliminary injunction requiring Defendant to specifically perform a contract under which Defendant was to give Plaintiff access to some computer code. Defendant claims that the injunction was “mandatory” in that it altered the status quo, and that effectively permitted the PI to usurp the final adjudication of the case. 

But that’s not right. While the preliminary injunction, in ordering delivery, might be construable as mandatory, that didn’t make it impermissible. If Defendant ultimately wins at trial, presumably Plaintiff will have to give back the code and pay out of the bond whatever loss was caused by an improvidently granted motion.


Wednesday, December 28, 2016

A Differential Clock Under § 425.16(f).

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, No. G052660 (D4d3 Dec. 22, 2016)

From when does the sixty-day clock to file an anti-SLAPP motion run under Code of Civil Procedure § 425.16(f)?

Too Narrow to Be a Public Issue

Dual Diagnosis Treatment Cntr. v. Buschel, No. G053046 (D3d2 Dec. 20, 2016)

The trial court in this case denied an anti-SLAPP motion addressed to libel claims brought against the publisher of a drug treatment community newsletter. The claims were based on the newsletter’s republication of a story from the OC Register that reported that a drug treatment facility was not properly licensed in California. The Court of Appeal affirms, holding that the licensure status of an individual treatment facility, without more, is not a public issue sufficient for the claims to arise from protected activity under Code of Civil Procedure § 425.16(e)(3). That provision protects written statements in a public forum, but only to the extent that they relate to a public issue.


Tuesday, December 27, 2016

Claiming the Mantle of the 13th Juror

Ryan v. Crown Castle NG Networks, Inc., No. H041712 (Dec. 13, 2016)

A jury in this case rendered an apparently nonsensical damages verdict that could not be squared with the instructions and the verdict form. But in response to Plaintiff’s new trial motion on inadequate damages, the trial judge ruled that the court could not “substitute its judgment for that of the jury” and that “declarations were necessary to determine what the jury actually did.” 

The (e)(4) SLAPP Split Is Coming to a Head.

Wilson v. Cable News Network, No. B264944 (D2d1 Dec. 13, 2016)

This case is basically a retread of 2013’s Hunter v. CBS case. 

There, the Court of Appeal said that committing employment discrimination against a newscaster is “protected activity” under the anti-SLAPP statute because it is “conduct in furtherance” of First Amendment Activity as defined under Code of Civil Procedure § 425.16(e)(4). Except in this case the talent is off-air, and the discrimination (and retaliation) is on the basis of disability. Plus, it goes the other way.

Monday, December 26, 2016

The Other Lee v. Silveira Is a SLAPP

Lee v. Silveira, No. D068835 (D4d1, Dec. 8, 2016)

When I first skimmed the opinion in this case, I thought it was another bad opinion along the lines of Nunez, applying the anti-SLAPP statute to a declaratory relief case just because the evidence of a live legal controversy existed consisted of protected speech. But I was mistaken.

What's a Reasonable Rate?

569 E. Cnty. Blvd LLC v. Backcountry Against the Dump, No. D068538 (D4d1 as modified Dec. 29, 2016)

This is on rehearing of from this prior opinion.

The lawsuit is a quintessential SLAPP. Developer sued Activist group for gettin’ up in its business and “interfering” with its prospective economic advantage. See Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1125 (1999) (“The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants continued political or legal opposition to the developers plans. The favored causes of action in SLAPP suits are defamation, various business torts such as interference with prospective economic advantage, nuisance and intentional infliction of emotional distress. (quotes and alterations omitted)) The trial court got that and struck the claim. This appeal is only about how much fees Activist’s lawyers get.

Friday, December 23, 2016

Wage & Hour Class Goes to Trial

Driscoll v. Granite Rock Co., No. H370662 (D6 Nov. 30, 2016)

This is a rare class action (wage & hour) that actually went to trial. Nothing procedural at issue. But a noteworthy event nonetheless.

Re-Do Provision in Arb Agrement Enforced

Condon v. Daland Nissan, Inc., No. A145613 (D1d1 Nov. 29, 2016) 

The Parties
arbitration agreement contains a provision that permits a de novo arbitration before a three-arbitrator panel if a single arbitrator gives an award of $0 or over $100k. Plaintiff wins $180k, but the arbitral body refuses to constitute a de novo panel based on the fact that it doesn’t have appellate rules. On confirmation of the award, the superior court similarly declines to order a de novo arbitration. 

But they were both wrong.

The parties agreed to a de novo arbitration (not an arbitration appeal) if the original results fell outside an agreed band. The original arbitration did, in fact, result in an award over the band. The fact that the arbitral body didn’t have specific appellate rules doesn’t brook otherwise. So the trial court erred in refusing to compel the parties to use the de novo procedure they had agreed to.


Thursday, December 22, 2016

Litgation Privilege Shields Doctor Who Reported Patient to DMV

McNair v. City and County of S.F., No. A138952 (D1d4 Nov. 22, 2106)

Doctor examined Patient in connection with an application for SSI. Against Patient’s wishes, Doctor sent a letter to the DMV, warning that Patient’s medical condition rendered him unable hold a commercial drives license. Patient sued for breach of contract and invasion of privacy. The trial court granted SJ on the privacy claim based on the Civil Code § 47(b) litigation privilege. It later granted a nonsuit on the breach of contract claim, on various grounds, including the litigation privilege. Plaintiff appealed.

The court holds that both claims were barred by § 47(b). The letter was close enough to the quasi-judicial DMV revocation proceedings that it should be litigation-related because it started the ball rolling on the license revocation process. Plaintiff argues that there is a specific on-point non-disclosure statute—Confidentiality of Medical Information Act, Civil Code § 56.10—that trumps the litigation privilege. But the relevant part of CIMA says that disclosure is permissible when “authorized by law,” and Health & Safety Code § 103900 says that a doctor can report a patient’s confidential medical information about a disorder causing “lapses of consciousness” to the DMV. Because the statutes don’t categorically bar disclosure
—and indeed arguably allowed itwhen such a disclosure, in connection with a public proceeding, is the basis of litigation, it is still coveted by § 47(b). Which is the case here.

So far as the contract claim goes, there are some cases that suggest that § 47(b) applies only to torts. But the court reads some newer cases hold that § 47(b) can, in fact, bar a disclosure in breach of a confidentiality agreement, when: (1) the obligations under the alleged agreement are not entirely clear; and (2) there is some overriding policy interest in disclosure. The court follows those later cases here. Plaintiff
’s contract theory isn’t a portrait of clarity, and its uncertain even whether whatever part-oral-part-written-part-implied agreement existed wasn’t subject to the Doctor’s other disclosure obligations under the law. And there is clearly an important public protection function that is served by the laws permitting a doctor to report unfit drivers to the DMV. Given these considerations, the litigation privilege wins out.


Some Evidence Questions in an Asbestos Case

Evans v. Am. Optical Corp., No. B265222 (D2d4 Nov. 22, 2016)

Evidentiary issues raised in an appeal after a defense verdict in an asbestos case. 

Wednesday, December 21, 2016

Still Goin' . . .

Lubin v. The Wackenhut Corp., No. B244383 (D2d4 Nov. 21, 2016)

This is a really long-pending wage and hour class action. Way back in 2011, while the case was pending trial, the U.S. Supreme Court issued its decision in Dukes v. Walmart, which substantially raised the bar for class certification under the Federal Rules. Relying on Dukes, defendants moved to decertify. The trial court granted the motion back in 2012, and the case has been pending appeal since then. But then the California Supreme Court decided Brinker—which focuses the class cert inquiry in wage and hour claims on whether the employer had an illegal policy—and the U.S. Supremes decided Tyson—which permits the use of statistical proof in class actions, albeit only in certain contexts.

After examining a whole pile of precedent decided after the trial court’s decertification order, the Court of Appeal rules that the trial court erred in decertifying the class. The big issue in the case was whether Plaintiff employees—security guards—could be required to eat on-duty meals under the governing wage order. The resolution of that issue could be addressed, per Brinker, to whether the Employer had a policy that unlawfully required on-duty meals, even when they were not merited by the relevant test. Framed that way, common issues predominate. And other issues—such as whether employees signed agreements necessary to make the eligible for on-duty meals—could be decided broadly by dividing the class into subclasses depending on which of a few versions of the Employer’s employment agreement were signed by each class member. 

The court goes on to apply the same analysis for plaintiffs rest break and wage statement claims.


SLAPP Ex Nihilo? No.

Med. Marijuana, Inc. v., No. D068523 (D4d1 as modified Dec. 16, 2016)

This case fronts a question that I wrote about three years ago in connection with a post on 2013’s Trapp v. Neimann: When a complaint fails to allege any conduct at all by a particular defendant, does that defendant have a valid anti-SLAPP motion if the fleshed-out counts against other defendants arise from protected activity? Those were the facts of Trapp, but the court didn’t address the issue. It did, however, find the first prong of the SLAPP analysis was met in an unsatisfyingly truncated analysis, of which I was kind of doubtful.

Tuesday, December 20, 2016

CCP § 473(b) Covers a Default from Failure to Pay Transfer Fees.

Gee v. Greyhound Lines, Inc., No C077077 (D3 as modified December 6, 2016)

When Plaintiffs case was transferred from Sacto to Fresno counties on motion of Defendant, she was—possibly erroneously—ordered to pay the transfer fees under Code of Civil Procedure § 397 or 399.* But when the case landed in Fresno, her lawyer never tendered the fees. Defendant moved to dismiss under § 399(a), which permits a court to dismiss an action with prejudice if fees go unpaid for 30 days. Plaintiff didn’t file an opposition or respond to the tentative (which was to grant) and the case was dismissed. 

Peer Review Does Not Insulate Discrimination Claim

Armin v. Riverside Cmty. Hosp., No.G052125 (D4d3 as modified Dec. 16, 2016)

There have been a bunch of cases over the past few years involving the intersection of the anti-SLAPP statute, public university hospital peer review processes, and discrimination claims brought by doctors whose admittance privileges are governed by peer review processes. 

Monday, December 19, 2016

Iskanian Applies to Individual PAGA Claims, Too

Tanguilig v. Bloomingdales Inc., No. A145283 (D2d5 Nov. 16, 2016)

In Iskanian v. CLS Trans. L.A., 59 Cal. 4th 348 (2014), the Supreme Court held that Labor Code Private Attorney General Act claims cannot be sent to arbitration under an arb agreement that includes a class action waiver. The gist is that PAGA claims more or less belong to the government in a qui tam-like capacity. That being the case, the matter can’t go to arbitration unless the government consents. That logic holds true for non-class PAGA claims, as much as it does for representative actions. Which resolves this appeal, in which Defendant unsuccessfully moved to send Plaintiff’s individual PAGA claim to arbitration.


No Interlocutory Appeals from WC ALJ Orders

Capital Builders Hardware, Inc. v. Workers' Compensation Appeal Bd., No. B271987 (D2d2 Nov. 16, 2016)

The court here holds that interlocutory orders of Worker’s Compensation ALJs aren’t appealable. They are not appealable to the Worker’s Comp. Appeal Board. And they are not appealable from there to the Court of Appeal. So the writ of review is vacated. In reaching this result, the court parts ways with Alvarez v. Workers’ Comp. Appeals Bd., 187, Cal. App. 4th 575 (2010), which suggests that at least some kinds of orders might be subject to interlocutory review.


Friday, December 16, 2016

Primary Rights and Reply Separate Statements

Soria v. Univision Radio, L.A., Inc, No B263224 (D2d7 Nov. 15, 2016)

The court here reverses a summary judgment in an employment case. The opinion mostly deals with employment law stuff. But there’s two worthwhile procedural points in the footnotes.

First, the moving defendant in this case filed a “reply separate statement,” attaching a depo transcript. The trial court struck the filing and sustained an objection to the testimony. (There is, in fact, no such thing as a reply separate statement.) But for some inexplicable reason, the trial court nonetheless relied on the transcript in granting SJ. In the absence of a cross appeal on the evidentiary ruling, however, the Court of Appeal declines an invitation to consider the testimony on appeal.

Second, Plaintiff is suing on two theories of disability discrimination. Either she’s being discriminated against because she’s disabled, or because she’s not but her employer thinks she is. There’s a footnote that says that because plaintiff’s claims represent two factual theories of the invasion of a single primary right, if either theory presents a viable claim, summary judgment shouldn’t have issued. No quibble with the rule. But its not really clear why the right not be discriminated against because you are disabled necessarily implicates the same right against discrimination because you are perceived as disabled. A case could be made either way. But the court just says that it’s the same right. Probably because thats easier than actually trying to explain the incomprehensible morass that is primary rights doctrine. So I suppose it is. Today anyway.


Thursday, December 15, 2016

Seven Service Options, None Good, Doesn't Cut It Under CCP § 98.

Midland Funding, Inc. v. Romero, No. JAD16-06 (Orange Cnty. Super. App. Div. Sept. 6, 2016)

Code of Civil Procedure § 98 permits, under certain conditions, a party in a limited civil case to offer a declaration in lieu of a witness’s direct testimony. Plaintiff—some kind a debt collector—offered such a declaration by one of its officers, purporting to attest to its acquisition of Defendants account and to lay give foundation that certain documents were admissible business records. The declaration agreed to accept service of a trial subpoena at any one of seven locations, several of which were more that 150 miles from the courthouse and others of which were “c/o” addresses, presumably acceptable for substitute but not personal service. The trial court let the docs in over Defendant’s objection and Defendant appealed to OC Superior’s App Div.

Wednesday, December 14, 2016

Friday, December 9, 2016

§ 170.6 Applies to Pre-OSC Habeas

Maas v. Superior Court, No. S225109 (Cal. Nov. 7, 2016)

Habeas corpus in California state court is procedurally complicated. But generally speaking, when a writ is first petitioned for in a superior court, the court decides whether the petition states a prima face case for relief or if it is barred by some procedural issue. Sometimes this decision is assisted by informal briefing from the government. If the petition is not summarily dismissed, the court issues an order to show cause, which then requires the government to make a formalized response called a “return.” 

Thursday, December 8, 2016

Refurber Madness.

Strasner v. Touchstone Wireless Repair & Logistics, LP, No. D068865 (D4d1 Nov. 4, 2016)

Plaintiff—a California native living at the time in NYC—returned a cell phone to a T-Mobile store in New York. In the process of refurbing the phone, an employee of the Refurber found some apparently sensitive pictures of Plaintiff on the phone and posted them to her Facebook wall. Plaintiff sued T-Mobile, four companies related to the refurbing, and those companies’ parent for invasion of privacy and related torts. Refurbers moved to quash service of lack of personal jurisdiction, which the trial court granted.

Tuesday, December 6, 2016

For Whom the Cross-Claim Tolls

ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd., No. H040776 (as modified Nov. 30, 2016)

This case deals with an interesting issue on the statute of limitations. To what cross-claims does the relation-back doctrine apply to toll a limitations period? Does it only apply to compulsory cross-claims, or to permissive ones too?

Saturday, December 3, 2016

Ok =< 10(Damages + Brandts)

Nickerson v. Stonebridge Life Ins. Co., No. B234271 (D2d3 Nov. 3, 2016)

This is our third go-round on this case, having covered the original D2 opinion and the Supreme Court’s partial reversal. The Supremes held that Brandt fees—fees incurred by an insured in its effort to obtain wrongfully denied coverage—should count in the denominator for the 9:1 or 10:1 ratio that more or less limits the ratio between actual and punitive damages under the constitutional Gore/State Farm due process framework.

On remand, the court runs through a full analysis on the puni award, finding that although the jury award of $19 million on a compensatory award of $35,000 and 12,500 in Brandt fees was out of whack, a punitive award of ten times that sum—$475,000—would hold up under Gore/State Farm. So the court vacates the new trial award that pertained to the remittitur and orders the trial court to amend the judgment to reflect punitives of $475,000. 

Affirmed, as modified.

Thursday, December 1, 2016

Garbage Battle Is a SLAPP.

Indus. Waste & Debris Box. Serv., Inc. v. Murphy, No A142388 (D1d2 Oct. 28, 2016)

Defendant is a waste and recycling consultant. On behalf of Client, it wrote a report about recycling rates that was positive for Client but questioned the veracity of Client’s Competitor’s statements about how much of the waste it collected was ultimately recycled. Client ultimately submitted the report to a local government in Sonoma County, resulting in Client getting a waste hauling contract that Competitor previously held. Competitor sued Defendant for defamation and other similar causes of action.

If you haven’t yet guessed where this is going, you might be new to California.

Wednesday, November 30, 2016

Client Conflicts Confound Counsel on Class Claims

Walker vs. _________, No. D069713 (D4d1 Oct. 28, 2016)

Counsel represents plaintiffs in two wage-and-hour class actions against the same Employer. The class in the first case is certified. A non-exempt Employee who is a member of the class in Case #1 subsequently got promoted to an exempt position as a low-level manager. She’s now a potential Employer witness in this second—yet-to-be-certified—class case. Indeed, she fired some of the employees in Class #2. So Employer moves to DQ Counsel in Case #2 on the grounds that he might have to cross examine his own client. The trial court agreed.

Monday, November 28, 2016

Unexpected Comeuppance for Jerky Trial Behavior

Bigler-Engler v. Breg, Inc. No D063556 (D4d1 as modified on rehearing** Jan. 6, 2017)

This is a really loooonnnng opinion arising from an appeal of a products liability trial. Defendants sold, marketed, and prescribed a cold therapy device, But as the court explains
unlike normal cold therapy remedies like an icepack or “a bag of frozen peas”—this device managed to give plaintiff some kind of super awful infection due to constant application of cold. Defendants were, it appears, kind of a motley crew as far as the medical device industry goes and they got tagged with big-time damages, including $5 million in non-economic generals, plus punitives.

Tuesday, November 22, 2016

Progress Be Damned....

Khosh v. Staples Constr. Co., No. B268937 (D2d6 Oct. 26, 2016)

Another of D2’s “new font” opinions. I am on record that the Century Schoolbook is an improvement. But I still find the line spacing kind of annoying. It’s not single-spaced with a full break between paragraphs like a Ninth Circuit slip opinion, a Westlaw printout, or a US Supreme Court brief. But it’s also not 1 1/2 like a readable appellate brief. It’s like 1.2, which I find a little distracting for some reason. The paragraph indents are also weirdly large. What’s the point of a 1 1/2” indent?

You Ain't an AG

Millview Cnty. Water Dist. v. State Water Res. Control Bd., No. A145428 (D1d1 Oct. 26, 2016)

A local water district and some citizens who leased it a riparian water rights claim won a lawsuit against the State Water Resources Control Board. Plaintiffs sought to recover their attorneys’ fees under Code of Civil Procedure § 1021.5, the private attorney general doctrine. But an award under § 1021.5 is only warranted when, among other factors, the plaintiff’s burden of litigating is out of proportion to their stake in the matter. Given that the water rights in issue were worth millions, that can’t be the case here. 


Monday, November 21, 2016

Tuesday, November 15, 2016

Control, Default, and Alter Ego.

Wolf Metals v. Rand Pac. Sales Inc., No. B264002 (D2d4 Oct. 25, 2016)

Plaintiff is trying to enforce a default judgment. After a lack of success, it moves to add two new judgment creditors, one on the grounds that he was the alter ego of the debtor and the other because it was the debtor’s successor corporation. The trial court granted the request as to both, but the Court of Appeal reverses as to the alleged alter ego.

Monday, November 14, 2016

These Bills Are Too Damn High...

Moore v. Mercer, No. C073064 (D3 Oct. 21, 2016)

Yet another case addressing the Howell rule for measuring past medical costs as and element damages in a PI case. Under that rule the initial rates billed to a patient by a healthcare provider aren’t dispositive because those rates are super-inflated, and pale in comparison to what ultimately gets paid, especially if paid by insurance. Plaintiff here wasn’t insured, and the hospital sold her bill to a collections agency. Defendant argued that what the hospital got from the agency is the true value of the services. 

This is pretty much the same facts as the Uspenskaya case, decided almost exactly one year ago. And it has the same result: the collections bill is admissible, but not dispositive. Same rule that applies to the hospital’s initial bill. So the jury’s damages award—which was between the two figures—is affirmed.

There’s a second issue, though. Defendant tried to get the (third party) doctor’s contract with the collections agency in discovery. The court denied a motion to compel on the grounds that the agreement was irrelevant and issued discovery sanctions against Defendant. That was error. The terms of an agreement under which claims are sold “bear[s] some probative value” as to the true reasonable value of the services. But given that the trial court said it would have excluded the evidence at trial—which would not necessarily been erroneous—the discovery error was harmless. The sanctions, however, are reversed. 

Notable quote: The “broad scope of permissible discovery is equally applicable to discovery of information from a nonparty as it is to parties in the pending suit.” (quoting Johnson v. Superior Court, 80 Cal. App. 4th 1050 (2000). That
s correct as a matter of the language of the Discovery Act, but read broadly, its in some tension with with the oft-cited Calcor decision, which suggests you should exhaust efforts to get discovery from a party before you burden a third party with document demands.

Reversed in part.

Friday, November 11, 2016

The Death Knell Still Rings Naught!

Nguyen v. Applied Med. Res. Corp., No. G052207 (D4d3 Oct. 14, 2016)

Denials of class cert motions and grants of motions to compel arbitration of claims subject to class action waivers are usually appealable under the “death knell” doctrine. The gist is that what’s left of the case is usually not economically viable to try or arbitrate, so refusing the permit the plaintiff on proceed on a class basis is the “death knell” for the litigation more generally, and thus provides a justification for an interlocutory appeal. 

Wednesday, November 9, 2016


Cal. Pub. Records Research, Inc. v. County of Yolo, No. C078158 (D3 Oct. 14, 2016)

 This case is a complaint about records copying fees, akin to the County of Stanislaus case brought by the same outfit earlier this year. Here, they are challenging Yolo County’s fee schedule demanding $10 for the copying of the first page of a document and $2 for each subsequent page. Government Code § 27366 permits counties to set these fees at rates necessary for the county to recover the direct and indirect costs associates with the copying. 

Unlike in the Stanslaus case, Yolo justifies its copy rates with a fee study that values the staff time of employees in its Recorder’s Office at $129.88 per hour, and then it slices and dices the amount of time spent on responding to requests down to the minute. If you are a clerical worker considering putting in an application and moving to Woodland because of that great pay, don’t go there. The Yolo Recorder employees don’t actually make that much—their pay is about $43 per productive hour—$71k per year on average. A decent government wage, but not worth the move. Yolo’s study, however, bakes in another $85/hour in “indirect costs” in the form of overhead for stuff like the cost of computers, management costs, and office overhead. The issue here is whether that can be lumped in as an “indirect” cost.

After plaintiff filed suit challenging the legality of the fees, Yolo reduced its fees to $7.50/$2. It then moved for summary judgment, arguing that its fees didn’t violate § 27366 and in any event, given the reductions, the petition was moot. The trial court granted the motion. Plaintiff then filed a fee motion under the private attorney general doctrine, arguing that its lawsuit was the catalyst for Yolo’s fee reduction. The trial court denied the motion and plaintiff appealed.

On the merits, the Court of Appeal decides to read “direct and indirect” costs super broadly to include as “indirect” costs “overhead and operating costs not specifically associated with the production of copies.” It supports this reading by reference to dictionaries, federal regulations, and other statutes to determine that “indirect costs” unambiguously includes the kinds of garbage that Yolo is passing off on its citizens by charging $7.50 to make a photocopy of a one-page public document. In that way, it parts ways with D5’s County of Stanislaus decision, which held that the undefined term was ambiguous and thus needed to be interpreted narrowly in light of the State Constitution’s dictate (in Art. I,
§ 3) that statutes that restrict access to public information must be interpreted narrowly.

Plaintiff also sought fees under the private attorney general doctrine, arguing that, even if it didn’t win, it was the “catalyst” for County lowering its first page fee by $2.65. That theory requires a plaintiff to achieve, to some degree, its “primary objective.” The court here interprets Plaintiffs primary objective as stopping County from including indirect costs, not just any old fee reduction. If that was its objective, it failed and thus did not satisfy the test.


Tuesday, November 8, 2016

D2d5 Gets Some Font Technology

State of Cal. v. Superior Court, No. B276233 (D2d5 Oct. 13, 2016)
I like the Century Schoolbook font. It’s relatively spacious and easy to read in a brief. The SCOTUS rules and the Seventh Circuit’s typeface guide suggest it by name, and its an option under FRAP 32(a)(5)(A) and Cal. Rule of Court 8.204(b)(2) and (3). I write all my appellate briefs in it, so long as space is measured in a word count and it’s permitted under the applicable rules. It’s also arguably permitted in California trial courts under Rule of Court 2.105, but given Rule of Court 3.113(d)’ monstrous insistence on using page (not word) limits for law-and-motion memoranda, it’s just too much to sacrifice about 12 percent of the Rule’s already tight limit for the sake of having a nice font. (I tried for a few months back in 2011, but ultimately gave up the first time I had to oppose a summary judgment.)

In any event, given the Court of Appeal’s longstanding practice to publish opinions in stodgy Times New Roman, the choice of font on this D2d5 is out of the ordinary. But definitely not bad. Maybe it will be a thing.*

FWIW, this website and the book it is pitching have some great advice on typography for briefs.

Nothing on the merits, thanks. 

*From some subsequent opinions, seems that all of D2 has made the move.

Monday, November 7, 2016

Assemblyman-Lawyer Is No Scheduling Trump Card

Verio Healthcare v. Superior Court, No. G053068 (D4d3 Oct. 12, 2016).

When a party’s attorney is also a member of the California Legislature, §§ 595 and 1054.1 of the Code of Civil Procedure provide, respectively, for continuances of trials or other matters so long as the Legislature is in session. But fifty years ago, the California Supreme Court held that it would violate the separation of powers to treat these statutes as entitling a litigant’s legislator-attorney a mandatory right to a stay a judicial proceeding. See Thurmond v. Superior Court, 66 Cal. 2d 836 (1967). 

Thursday, November 3, 2016

A Malpractice Hall of Mirrors

Gotek Energy Corp. v. SoCal IP Law Grp., No. B266684 (D2d6 Oct. 12, 2016)

Client hires “Law Firm #2” to bring a malpractice case against Law Firm #1—its prior patent counsel—for blowing a deadline for some patent applications. But Firm #2’s own complaint was filed after the one-year statute in Code of Civil Procedure § 340.6 had run. But that limit is tolled during the time an attorney-client relationship exists between the client/plaintiff and the attorney/defendant. So the issue in this case is when the relationship between Client and Firm #1 ended. Firm #1 claims the relationship ended when—a year and a week before this case was filed—it sent an email to Client informing Client that it needed to withdraw. The next day, Client replied by email to Firm #1, sting that it was terminating the relationship and demanding that Firm #1 immediately transfer the client file to new counsel. Client claims the date extended until the date its files were actually received by new counsel—364 days before the complaint in this case was filed.

The trial court sided with Firm #1, finding that the relationship ended when client said so. The fact that some ministerial work was done to transfer the files after Firm #1 was told it was terminated did not extend a confidential attorney client relationship until that work was complete. The trial court also awarded Firm #1 its fees under a fee provision in Client’s retainer agreement.

The Court of Appeal affirms. Tolling under § 340.6 stops when a client ceases to have any reasonable expectation that legal work will be performed. Given the unequivocal termination, the mere fact of the post-termination transfer of the client’s file did not provide a reasonable basis to believe that there was any kind of ongoing attorney-client relationship. The Court of Appeal further finds Client’s arguments against the fee award to be makeweight.

So the world inevitably await the malpractice case against the attorneys who blew the SOL on a malpractice case against some attorneys who blew the SOL on a patent filing. These guys really need to hire some counsel with a decent calendaring system.


Tuesday, November 1, 2016

Potentially Overbroad Notice Does Not Render Class Not Ascertainable

Nicodemus v. St. Francis Memorial Hosp., No. A141500 (D1d4 Oct. 6, 2016)

Case is a class action dealing with access to medical records under Evidence Code § 1158, which requires a hospital to promptly give a patient’s medical records to her attorney on presentation of a written authorization form “prior to the filing of any action.” The patient needs to pay reasonable costs, which are defined in the statute. The whole point is to make a patient’s medical records available outside of discovery so her attorney can evaluate whether she has a claim. 

Monday, October 31, 2016

Follow the Verdict Form

Markow v. Rosner, No. B260715 (D2d1 Oct. 4, 2016).

A jury awarded damages to Plaintiffs—a patient and his wife suing for loss of consortium—in a med-mal case. The jury purported to allocate the award 60/40 between Doctor and Hospital. Hospital’s liability was based on an ostensible agency theory, not any direct fault on its own part. Hospital moved for judgment notwithstanding the verdict, on the ground that the record was clear that Doctor was an independent contractor, not an agent, and that Plaintiff knew that fact from the get-go. The trial court denied that motion, but the Court of Appeal reverses.

Sunday, October 30, 2016

New Judgment Adding Fees Does Not Restart the Clock

Hjelm v. Prometheus Real Estate Grp., No. A142723 (D1d2 Oct. 5, 2016)

Plaintiffs’ apartment became infested with bedbugs. They sued their Landlord and won before a jury. Plaintiffs also obtained an attorney’s fee award because their lease included an fee provision, albeit one that purportedly only permitted the landlord to recover. But such a provision is made bilateral by operation of Civil Code § 1717. Ultimately the damages award was about $72k with the fee award almost five times that. 

Friday, October 28, 2016

So Much for Your Privacy . . .

Doe v. Superior Court, No. B271508 (D2d1 Sept. 29, 2016)

Last year, California enacted a “revenge porn” law, which provides for a private right of action against someone who without consent distributes naked or sexual images that were obtained under conditions where the subject of the images had a reasonable expectation that they would remain private. See Civ. Code § 1708.85. The statue permits the plaintiff to file anonymously, and requires the court to “keep the plaintiff’s name and excluded or redacted characteristics confidential.” Id. § 1708.85(f). Plaintiff availed himself of that process, filing along with his complaint a judicial council form that included his real name and info for the court’s use. That form too is supposed to be kept confidential by the court.

But it wasn’t. Somehow, LA Superior Court posted it, unredacted, to its online docket. The trial court—deciding that the cat was out of the bag—then proceeded to rule that from that point on, Plaintiff needed to litigate under his true name. Plaintiff took a writ, which the Court of Appeal grants.

Code of Civil Procedure § 367 requires the prosecution of an action in the name of the real party in interest, unless a statute provides otherwise. Section 1708.85(f) does, in fact, provide otherwise. The court’s posting of the form was not the fault of plaintiff, and thus it would be inequitable to find that the court’s own mistake somehow waived Plaintiff’s right to proceed anonymously. Indeed, the Court’s order—requiring public filing—would just compound the harm to the Plaintiff.

Writ granted.

Thursday, October 27, 2016

Sometimes It Pays to Interplead.

Wertheim, Inc. v. Omidvar, No. B262485 (D2d1 Sept. 29, 2016)

This is a complicated and long running fight between two entities that appear to be jockeying to swindle a widow of her dead husband’s ASCAP and BMI songwriting royalties. After Party 1 won an arbitration, which Party 2 appealed but declined to post a bond to stay collection. Party 1 tried to levy against ASCAP and BMI, which responded by interpleading the royalty streams, obtaining a court-approved $238k, paid of the res, for the costs incurred in interpleading. See Code Civ. Proc. § 386 (permitting a discretionary award of fees for costs incurred in interpleading and obtaining discharge). But then the arb judgment got reversed, resulting in a ruling that Party 2 was entitled to the interplead funds. Party 2 then moved to recoup from Party 1 the fees paid to ASCAP and BMI under Code of Civil Procedure § 386.6, which permits gives the court discretion to allocate the interpleader’s fees to the claimants “as may appear proper.” The trial court denied the motion and Party 2 appeals.

The Court of Appeal affirms. It appears that there’s no transcript of the hearing on the fee motion, so the court’s terse minute order denying allocation is presumed to be correct and to include any implicit findings necessary to support it. Moreover, the circumstances supported denial. The only reason ASCAP and BMI interplead was because Party #2 took no effort to stay collection pending appeal. Had it posted a supersedeas bond, ASCAP and BMI would never have gotten involved and Party #2 could have recovered its bond cost from Party #1 as a recoverable cost. So, although a range of allocations between Parties #1 and #2 would fall within the reasonable exercise of the court’s discretion, that discretion wasn’t abused in denying Party #2 to recover part of the fees from Party #1.


Wednesday, October 26, 2016

New Trial, Notwithstanding a Lack of Substantial Evidence

Licudine v. Cedars-Sinai Med. Ctr., No. B268130 (D2d2 Sept. 29, 2016)

The court here affirms the grant of a motion for new trial on damages for a law student injured due to a surgical mistake, clarifying the applicable standard for awarding damages based on future earning capacity. So far as procedure goes, the court clarifies some issues with the difference between new trial and jnov motions as well as some evidentiary issues likely to recur on trial after remand. 

Tuesday, October 25, 2016

Thursday, October 20, 2016

In Honor of Francis Walsh

Esparza v. Kaweah DeEsparza v. Kaweah Delta Dist. Hosp., No. F071761 (D5 Sept. 21, 2016)

When he wasn’t randomly digressing on the Warsaw Convention, my torts professor managed to say in pretty much every class—to the blank stares of 120 baffled 1Ls—“DON’T FORGET YOUR CODE CLAIM!”  He must have sued the government a lot or something.

Wednesday, October 19, 2016

Wife Fails to Bounce Divorce Judge with § 170.6 Gambit

Rothstein v. Superior Court, No. B275603 (D2d5 Sept. 16, 2016).

During Husband and Wife’s divorce case, Wife filed a peremptory challenge against the family law judge under Code of Civil Procedure § 170.6. After the case was reassigned, Family Law Judge #2 entered a dissolution judgment, but retained jurisdiction to deal with property division, support, etc. While that was pending, wife’s company sued Husband to collect on a debt. Husband got the matter transferred to FLJ2 as a related matter. WifeCo. then filed its own § 170.6 to strike FLJ2. FLJ2 accepted the strike and transferred the whole case to Judge #3. After husband moved for reconsideration, which was denied, Husband took a writ.

Tuesday, October 18, 2016

Nice Try...

Perez v. U-Haul of Cal., No. B262029 (D2d7 Sept. 16, 2016)

The California Supreme Court held that PAGA claims aren’t arbitrable in the oft-cited Iskanian case. Defendant here raised a clever argument that, while a whole PAGA claim might not be, whether plaintiff is an “aggrieved employee”—a threshold issue that goes to whether PAGA even applies—can be the subject of an agreement to arbitrate. No dice. According to the court, nothing in Iskanian can be read to permit the hiving off of threshold issues and sending them to arbitration.


Monday, October 17, 2016

Good Luck to All That

Randall v. Mousseau, No. B263945 (D2d7, as amended, Sept. 16, 2016)

In California, the appellant bears the burden of showing error. That means, among other things, that she needs to present the record on appeal. There are two different records—a written record, and a record of oral proceedings. And then for each type of record there are various options to compile. For the record of oral proceedings, the standard is a court reporter’s stenographic transcript. (In the lingo of California state court, a “reporter’s transcript.”) See Cal. R. Ct. 8.130. That’s been the case since modern stenography came into place during the mid-20th Century. But there are other options.

Wednesday, October 12, 2016

And Now for Some Qui Tam . . .

People ex rel Allstate Ins. Co. v. Dahan, No. B259799 (D2d3 Sept. 15, 2016)

This is kind of interesting. A relator wins a false claims act case in which the government declined to intervene. The losing defendant tries to argue that its liability on the judgment is improperly allocated between the relator and the government. But, as the court holds here, the defendant/debtor doesn’t have standing to complain about that. Regardless of who it owes to, its still owes. So it isn’t aggrieved by the allocation.

Appeal dismissed.

Tuesday, October 11, 2016

No Arb for Trailer Park

Penilla v. Westmont Corp., No. B262097 (D2d4 Sept. 9, 2016)

The court here finds an arbitration provision in a mobile home park rental agreement to be unconscionable. Procedurally unconscionable in that it did not disclose the expensive fees that a claimant would be expected to shoulder and because it was not provided in Spanish or explained to renters who couldn’t read English. And substantively unconscionable because it imposed steep fees to deter the residents from asserting claims and unreasonably shortened the statute of limitations. So the trial court correctly denied the park owner’s motion to compel. 


Why Arbitrations Tend to Go on Too Long ...

Royal Alliance Assocs., Inc. v. Liebhaber, No. B264619 (D2d4 Aug. 30, 2016)

It’s pretty hard to get an arbitration award vacated. The arbitrators error, even a really really bad one, is not enough. But one way to do it is to show that the arbitrator refused even to hear evidence. Which is what happened here. 

During an informal hearing, Party A gave an informal explanation of her conduct in an effort to exonerate herself. The opposing party had doubts about the veracity of those statements, and asked to question A. The arbitrators—it was a three arbitrator panel—said no, in reliance on the rules of their arbitral forum. They then proceeded to rule in A’s favor, specifically noting in their decision that the found A’s explanation to be credible.

That goes too far, even for arbitration. Code of Civil Procedure § 1286.2 requires vacation of an award when the arbitrators commit misconduct, exceed their powers, or refuse to hear evidence material to the dispute. Regardless of whether the panel complied with their own rules, refusing the hear relevant evidence—such as the cross examination of a witness whose credibility is key to the whole case—crosses a red line. See Code Civ. Proc. § 1286.2(a)(5).


Monday, October 10, 2016

So Much for Diamler . . .

Bristol-Myers Squibb. Co. v. Superior Court, No. S221038 (Cal. Aug. 29, 2016)

Certain kinds of litigation gravitate towards California, even when neither the plaintiff nor the defendant is resident or headquartered here. (See, e.g., asbestos cases.) The conventional wisdom is that that state of affairs was likely to subside after the US Supreme Court did away with the broad “systematic and continuous” test for general personal jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), which held that general jurisdiction is appropriate only where a company is “at home.” 

Taking Isn't, But Talking Is

Greco v. Greco, No. C078369 (D3 Aug. 23, 2016) 

In his capacity as trustee of his parents’ trust and estate, Son uses the trust’s funds to engage in a bunch of allegedly poorly conceived litigation against his Sister. Sister sues Son, alleging he’s breaching his duty of trustee by wasting the res. Son files an anti-SLAPP motion, which is denied. He appeals.

The Court of Appeal quite sensibly finds that the gist of the suit is the wrongful taking of funds from the trust and estates—as opposed to the litigation being bankrolled with that money—as thus that the case doesn’t arise from any protected activity. Because it is the taking that makes Son’s actions unlawful, that is the relevant conduct to the analysis. The sole exception was a claim for constructive fraud, which allegedly arises from Son’s misrepresentations about the lawsuit. Talking about a lawsuit is protected activity, so Son met the first part of the test on that claim.

As to the merits on the constructive fraud claim, the trial court hadn’t addressed them. It notes that the obvious bar to success—the litigation privilege in Civil Code § 47(b)—doesn’t apply because the statements at issue were not made to a court or any party to the litigation. Thus the case needed to be reversed for a determination of potential success on the merits as the the constructive fraud claim only.

Reversed and reminded, in limited part.

Can't SLAPP on a Settlement Deal

Suarez v. Trigg Labs., Inc., No. B264511 (D2d4 Sept. 7, 2016)

Settlement discussions are included within the anti-SLAPP statute’s protection as “any written or oral statement or writing made in connection with an issue under consideration or review” by a judicial body. See Cal. Code Civ. Proc. § 425.16(e)(2). Thus, cases that arise from allegations of fraud during settlement talks meet the “arising from protected activity” requirement of the anti-SLAPP statute. And since Plaintiff in this case declined to even try to make a showing on the merits, the motion was appropriately granted.


Saturday, October 8, 2016

She'll Have to Wait Too.

Sese v. Wells Fargo Bank, No. C074663 (D3 Aug 18, 2016)

A recently enacted statute addressing mortgage litigation permits the award of attorneys’ fees to a prevailing borrower. Te Homeowner here won a PI, and claims that she was entitled to an immediate interim fee award. The trial court denied the request and the Homeowner took an interlocutory appeal. But regardless of whether the Homeowner was right about the statute’s authorizing awards of interim fees, nothing in the Code makes the denial of such a request immediately appealable. Although Homeowner argued that the appellate jurisdiction statute—Code of Civil Procedure § 904.1—makes various kinds non-final orders immediately appealable, the order here isn’t one of them. 

Appeal dismissed.

Wednesday, October 5, 2016

She'll Have to Wait.

Young v. REMX, Inc. No. A143786 (D1d5 Aug. 17, 2016) 

The denial of a motion to compel arbitration is immediately appealable. See Code Civ. Proc. § 1294(a). But an order granting a motion to compel isn’t. And—as the court here explains—an order that stays certain non-arbitrable claims while a compelled arbitration is pending isn’t immediately appealable either. Just like with a grant of a motion to compel, the decision to stay can be addressed and challenged at the end of the road, once a final judgment is entered. There’s no good reason to jump the gun.

Appeal dismissed.

Tuesday, October 4, 2016

Munsingwear ...

La Mirada Neighborhood Assoc. of Hollywood v. City of LA, No B258033 (D2d7 Aug. 16, 2016)
Generally, an action that moots a controversy while an appeal is pending results only in the dismissal of the appeal. But when legislative or regulatory changes make a matter moot, sometimes it’s warranted to order the trial court to vacate the underlying judgment, such that the dismissal of the appeal doesn’t result in an automatic affirmance of a judgment whose legal legs had been cut out from under it. But the rule doesn’t apply when, like here, the government body that takes the action to moot the case is also the appellant. In those cases, dismissal of the appeal is all that’s warranted.

Appeal dismissed.

You Can Now Stop Drafting Those Rough Proportionality Instructions

City of Perris v. Stamper, No. S213468 (Cal. Aug. 15, 2016)

The Court of Appeal decision in this case came down more than three years ago. I wrote about it in one of my first posts. Without rehashing too much, it deals with the right to jury trial in eminent domain cases. In particular, certain valuation issues are logically dependent on whether the government can permissibly impose a dedication of land as a development condition under the U.S. Supreme Court’s Nolan/Dolan framework. The Court of Appeal held that the fact issues bound up in that determination had be be tried by a jury under article I, section 19 of the California Constitution, which affords a jury trial right as to the amount of just compensation in eminent domain proceedings.

Justice Liu, writing for a unanimous court on the issue,* thinks differently. The state constitution requires a jury trial only of fact issues that relate to the compensation. It does not require a jury for fact issues not related to compensation, or to issues of law or mixed questions of fact and law where the legal question predominates, even if they are antecedent to the valuation question. 

While the Nolan/Dolan inquiry certainly has a factual underpinning, the inquiry generally entails the application of a constitutional law framework to known facts. Because the court is scrutinizing the sufficiency government agency’s decision and its evidentiary basis, there should be little need to weigh conflicting evidence and engage in the kind of fact-finding that falls within the customary ken of a jury. Instead, the court is called upon to “decide . . . . fundamental questions about the limits of lawmaking power”—legal questions that should rest with the court. That is the case even though, literally speaking, the ultimate valuation question does, to some degree, turn on the answer to the Nolan/Dolan question. That they are “analytically prior” or “sub-issues” to the assessment of the amount of just compensation, does not bring them within the jury trial right.

Court of Appeal reversed.

*Justice Cuellar dissented on a second issue on which the court granted review—a specific and technical issue of eminent domain law called the “project effect rule.” But he concurred in the court’s resolution of the jury trial right issue.

Monday, October 3, 2016

Don't Need a Physiscist to Know What a Fender Bender Looks Like ...

Christ v. Schwartz, No. D068579 (D4d1 Aug. 12, 2016)

Appeal from a defense verdict in a low-speed car accident case. Plaintiffs are the victim and her husband, who is suing for loss of consortium. Defendant stipulated to negligence and causation of the accident, so the upshot of the defense verdict is that the jury didn’t believe that the victim’s claimed injuries were legit or that they resulted from the accident. Plaintiffs’ contend on appeal that the trial court erred in admitting photos of the damaged cars and evidence regarding victim’s husband’s extramarital affairs.

On the photos, Plaintiffs claim that, in the absence of expert evidence about the significance of the damage, it was error to admit the photographs as evidence of whether the accident was the cause of Plaintiffs’ alleged injuries. But California law does not require an expert to lay foundation for accident scene photos, so long as the judge in his or her discretion believes that the jury can use the photos to draw conclusions within their ordinary common experience. One outlier decision of another state somewhat suggested that rule, but even in that case a later decision walked it back.

Nor did the court abuse its discretion in declining the exclude the photos under Evidence Code § 352. The photos were relevant to show that the collision was a side impact, the general force of the collision, and to impeach Husband’s testimony that the car was more messed up than the photos showed it to be. Given that relevance, it was not an abuse of discretion to let them in.

So far as the affair goes, it had happened almost a decade and a half before the trial. The trial court tentatively denied a motion in limine to keep it out as minimally relevant to loss of consortium, but reserved a decision for trial. When Defendant’s counsel asked a question on the issue, Victim did not object, but she gave an unresponsive answer addressed to other issues. But then she volunteered a bunch of detail on the issue in response to general questions about the nature of her injuries and the state of her relationship with Husband. And then her lawyer addressed the affair issue in depth on redirect.

The court finds that Plaintiffs forfeited the issue by failing to timely object. A tentatively denied motion in limine that is expressly subject to revisitation does not preserve an objection in the absence of an on the record objection at trial under Evidence Code § 353. And in any event, a party seeking loss of consortium puts the state of his relationship into issue. Although the affair occurred a long time ago, Victim affirmatively brought it up during her medical treatment or her alleged injuries, which suggests that it was at least potentially relevant to her.

And regardless, the record was clear that the jury didn’t believe the victim’s testimony about the source and nature of her injuries. She was thoroughly impeached on these issues at trial, including by clandestine video showing her engaged in activities that were completely inconsistent with the the injuries she claimed to have suffered. Under the circumstances, even if it was error to admit either the photos or the testimony about the infidelity, the error was harmless and insufficiently prejudicial to merit reversal.


Thursday, September 29, 2016

We Don't Need No Stinkin' Lodestar...

Laffitte v. Robert Half Intl, No. S222996 (Cal. Aug. 11, 2016)

A long time ago, in Serrano v. Priest, 20 Cal. 3d 25 (1977)—Serrano III, the first two Serranos being about equal educational opportunity in public schools—the California Supreme Court ruled that the lodestar method (hours times reasonable rate) is the proper means of calculating an attorney fee award under the private attorney general doctrine. What happens when the award is not based on the private attorney general statute, but instead under the “common fund” doctrine—where one party obtains a pool of recovery to the collective benefit of a group of potential plaintiffs? Is the plaintiffs’ attorney stuck with a lodestar, or can he argue instead that he is entitled to a percentage of the overall recovery, even if that significantly exceeds the lodestar. 

Wednesday, September 28, 2016

Service on DeadCo's Authorized Agent Is Service Nonetheless

Pulte Homes Corp. v. Williams Mechanical, Inc., No. E064710 (D4d2 Aug. 9, 2016)

A defunct plumbing company whose charter had been suspended got sued for negligent performance of a contract. Plaintiff served its designated agent, who did nothing because the company was basically a dead letter. Plaintiff took a default.

The company, however, did have some insurance. After finding out about the default, the carrier retained counsel for the defunct company and moved for relief from default under Code of Civil Procedure § 473(b), which was granted by the trial court. But the Court of Appeal reverses.

Section 473(b) requires the motion to be filed within six months of the order to be vacated. The motion here was filed more than six months after the entry of default, although less than six months after a default judgment was entered. The court holds that the earlier date was the key one. Vacating a default judgment isn’t worth much unless you can also vacate the underlying default.

The court also rejects a challenge under § 473.5, which permits the setting aside of a default when the defendant never received actual notice. Here, there’s no question that the registered agent of the company was properly served. While service on an entity’s attorney might not be enough to give actual notice, when an attorney is also a designated agent, that service is sufficient to give the corporation actual notice as a matter of law. Even if the attorney neglects to inform the company’s principals because the company had gone out of business.

Finally, the court declines to award equitable relief from default on grounds of extrinsic mistake. That relief is available only under “rare circumstances” where the moving party is inequitably denied a hearing. To obtain the relief, the moving/defaulted party needs to show: (1) that its defense has merit; (2) a satisfactory excuse for not presenting the defense in the original action; and (3) that it acted diligently to set aside the default once discovered. There’s a threshold issue here that Defendant didn’t really raise extrinsic mistake until its reply brief, although two elements (excuse and timeliness) were discussed on the opening brief in connection with the 473.5 issue. The court finds that Defendant forfeited the argument on the meritorious-ness element. And in any event, Defendant didn’t meet the burden of showing either a satisfactory excuse or diligence.


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.


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.


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.


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.