Friday, April 28, 2017

Nothing New, Move Along

Betancourt v. Prudential Overall Supply, No. E064326 (D4d2 Mar. 7, 2017) 

Not really sure why this one was published. Straight up holds that PAGA claims can’t be compelled to arbitration because Plaintiff is technically standing in the shoes of the state, qui tam-style. That’s essentially the Supreme Court’s holding in Iskanian, so this doesn’t add much to the mix.


Thursday, April 27, 2017

No Tolling Under § 340.6 Post Attorney’s Motion to Withdraw

Flake v. Neumiller & Beardslee, No C079790 (D3 Mar 2, 2017)

Under Code of Civil Procedure § 340.6, the statute of limitations on an attorney malpractice claim is tolled while the attorney continues to represent a client. In this case, the attorney sought leave of court to withdraw before the SOL had run, but that permission wasn’t granted till a year later, by which time the SOL had run. So for Plaintiff’s claims to survive, § 340.6 tolling needs to continue apace even after the attorney took steps to withdraw. That, however, is not consistent with § 340.6, which is based on the idea that a client shouldn’t have to investigate the performance of his own lawyer while an attorney client relationship still exists. Once the lawyer moved to withdraw—a fact known to the client—client has no basis to think that the relationship is ongoing. So no tolling from the time the withdrawal was filed.


Monday, April 24, 2017

Too Creative . . .

Haniff v. Superior Court, No. H043345 (D6 Mar. 1, 2017)

The trial court ordered a personal injury to submit to a vocational rehabilitation exam to examine his capacity for other work in the future. The exam is basically an interview, along with some aptitude and interest testing. Defendants wanted it to show mitigation against Plaintiff’s wage loss claims.

But Plaintiff took a writ, which the Court of Appeal grants. Discovery in California is a creature of statute; parties can’t get forms of discovery that aren’t authorized. Code of Civil Procedure § 2019.010 lists those methods: “(1) oral and written depositions; (2) interrogatories to a party; (3) inspections of documents, things, and places; (4) physical and mental examinations; (5) requests for admissions; and (6) simultaneous exchanges of expert trial witness information.” Submitting to a vocational rehabilitation exam is not one of them. Nor, contrary to Defendant’s argument, was the exam authorized by § 2017.010, which broadly defines the scope, not the methods, of discovery.

Writ granted.

Friday, April 7, 2017

How SLAPPs Go South.

Melamed v. Cedars-Sinai Med. Ctr., No. B263095 (Feb. 27, 2017)

Another case in the intersection between the anti-SLAPP statute and hospital peer review. 

The peer review at issue suspended privileges for Plaintiff, a surgeon, for messing up a child’s scoliosis surgery. Plaintiff sued, however, claiming that the suspension was, in fact, in retaliation for Plaintiff’s complaints about patient safety at the hospital. 

In a pretty short-shift analysis, the court finds that plaintiff’s claim arises from the peer review process, which is an “official proceeding authorized by law,” under Code of Civil Procedure § 425.16(e)(2). That doesn’t seem right to me, for the reasons I discussed in my post on the 2015 DeCambre case. Viz., that the peer review isn’t the gravamen of the claim for retaliation—it is the gravamen of the hospital’s defense that it had a non-retaliatory reason to discipline the doctor. 

The court goes on to find that Plaintiff failed to make a prima facie case, so his claims were properly stricken.


I’m in the middle of a trial, so I don’t have a ton of time to grock into the details of this, but here’s an unscientific, anecdotal hot take on what most likely leads to erroneous anti-SLAPP rulings: Things go sideways when plaintiffs fail to seriously contest the first, “arising from,” element, wither at trial or on appeal. I haven’t read the briefs, but that seems to have occurred here.

Unless you represent a politician suing a newspaper for defamation or something incredibly obvious like that, I don’t care how good you think your case is on the merits. You are leaving money on the table if you don’t contest prong one. As a perusal of four-year history of this publication will show, there is a ton of anti-SLAPP precedent out there. It is contradictory, confusing, and not-infrequently wrong. Wrong stuff I blogged about in 2013 is just now finally being ironed out by the Supreme Court. Often, like this case, things seem obvious when they are not. Which makes it expensive to research and understand for a non-specialist litigator who might not have a limitless budget. But this is not a place to skimp.

And on the flip side, I really wish courts would be more careful in publishing cases where the plaintiff failed to put up a serious fight on prong one. Don’t publish. Or just say the issue was conceded, or waiver, or whatever. But holding, in published opinion, that the arising from prong has been met based on an argument that has not been thoroughly or vigorously made by a party just leads to more confusing and contradictory precedent.

Thursday, April 6, 2017

RFA Withdrawal Can Cost You Fees

Rhule v. Wavefront Technology Inc., No. B267359 (D2d5 Feb. 23, 2017)

The trial court let Plaintiff withdraw two admissions tendered in response to requests for admission, conditioned on an award of fees based on reliance on those admissions. Plaintiff appeals. 

But there isn’t a reporter’s transcript. The trial court’s minute ordered noted that the motion had been granted. A subsequent entry set a date for a fee motion. And then the trial court heard the fee motion, which also wasn’t transcribed. The court’s minute order, citing Code of Civil Procedure § 2033.300(c), awarded $8,125 in fees out of the $10,000 sought by Defendant.

Because of the lack of a record, the Court of Appeal finds it can’t entertain the challenge to the amount of the fee award, which was not facially beyond the pale. That’s a discretionary call where the trial court can act as a factfinder. So in the absence of a record, an abuse of discretion can’t be found.

Which still leaves Plaintiff’s purely legal challenge that § 2033.300 doesn’t permit the court to assess fees as a condition of letting a party out of an admitted RFA. Section 2033.300(c) specifically permits the court to shift the “costs of any additional discovery.” As used there “costs” isn’t limited to recoverable costs under § 1033.5, but pragmatically the marginal costs caused by permitting the withdrawal of the admission, including attorneys’ fees. Moreover, “costs” can include fees when shift-able by statute, and the RFA statutes permit an award of fees as a consequence for an unsubstantiated denial, which suggests, albeit obliquely, that “costs” in § 2033.300 should include attorneys’ fees.