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.

Affirmed.

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.

Affirmed.

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.

Affirmed.

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.

Affirmed.

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.

Reversed.

SLAPP Ex Nihilo? No.

Med. Marijuana, Inc. v. ProjectCBD.com, 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.

Affirmed.

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.

Vacated.

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.

Reversed.

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.