Wednesday, May 31, 2017

Writ Relief Has Come a Long Way in 80 Years

Shaw v. Superior Court, No. S221530 (Cal. Apr. 10, 2017)

Most of this Supreme Court opinion is about whether there is a statutory right to jury trial for a claim brought under Health & Safety Code § 1278.5(g), which prohibits certain kinds of retaliatory terminations. That’s too substantive for me.

There’s a gating issue, however, that is pure procedure: Is the denial of a jury trial right an appropriate subject for pre-trial writ relief? The answer is pretty clearly yes, and a series of Court of Appeal decisions bears that out. But there’s a very old Supreme Court case—Nessbit v. Superior Court, 214 Cal. 1 (1934)—that says it isn’t. Nessbit, however, relied on an old theory of mandamus as available only when a trial court acted for want of fundamental jurisdiction. Later cases changed that theory, re-characterizing the “jurisdictional” nature of the remedy to reach any act that was contrary to established statutes or standards, even if the trial court did, in fact, have jurisdiction over the matter in general. So the Supreme Court here overrules Nessbit to clarify that an erroneous denial of a jury trial right is an issue that can be addressed by a pre-trial writ of mandate.

Tuesday, May 30, 2017

Nothing to Relate Back to

Sholes v. Lambreth Trucking Co., No. C070770 (D3 Apr. 6, 2017)

Plaintiff is a pro per suing a neighbor over a fire that damaged his property. The Neighbor successfully demurred to a series of complaints, with Plaintiff obtaining leave to amend. As a result, Plaintiff’s complaints alleged a series of ever-evolving legal theories, beginning with a claim based on an insurance dispute but ultimately landing on a trespass theory. But by the time the trespass theory was raised, the statute of limitations had long run. And because the trial court held that it didn’t relate back to the original complaint, the case was dismissed as time-barred.

The Court of Appeal affirms. Problem is that Plaintiff’s timely original complaint was basically devoid of facts.  Owing that defect, the court holds that there was “nothing to which the first amended complaint can be  compared to or to which they can relate back.” The allegations were simply too sparse to put defendant on notice of the nature of the claim that plaintiff later pleaded in subsequent iterations.

Affirmed.

Broughton-Cruz Lives to Fight Another Day

McGill v. Citibank, N.A., No. S224086 (Cal. Apr. 6, 2107)

The Supreme Court granted review of this case to address whether claims brought under statutes like the CLRA and UCL, which permit a private plaintiff to seek injunctive relief on behalf of the public, can be subjected to mandatory arbitration wherein that relief is completely waived. The Court of Appeal said yes. The Supreme Court says no.

The main issue in the case is whether a California rule that claims seeking public injunctive relief are not arbitrable is preempted under § 2 of the Federal Arbitration Act, which makes all contracts to arbitrate enforceable except to the extent that state law would generally invalidate the contract. The California Supreme Court had previously upheld such a rule (known as the “Broughton-Cruz rule), but there’s a question as to whether it survives the U.S. Supreme Court’s ruling in AT&T v. Concepcion, which held that class-action waivers were enforceable and any rule otherwise was preempted by § 2. Plaintiff analogizes Broughton-Cruz to Iskanian v. Superior Court, in which the California Supreme Court held that Private Attorney General Act claims, in which private plaintiffs seek relief on behalf of the state, cannot be compelled to arbitration because the state is not a party to the arbitration agreement.

But the Court sidesteps the brewing Concepcion/Iskanian debate—which will sooner or later make it to the U.S. Supreme Court—to decide the case on narrower grounds. The agreement here effectively precluded plaintiff from seeking public injunctive relief in any forum, arbitral or otherwise. But unlike Concepcion—where the class action waiver was a procedure inconsistent with arbitration— the contract here waived a substantive remedy that is un-waivable as a matter of statute. Which means that the waiver is unenforceable, Concepcion notwithstanding. 

Court of Appeal reversed.

Friday, May 26, 2017

Venue Victor Is No Prevailing Party

DisputeSuite.com v. Scoreinc.com, No. S226652 (Cal. Apr. 4, 2017)

The Supreme Court granted review of this case, which I wrote about back in 2015. The issue is whether a defendant can get an award of contractual attorneys’ fees under Civil Code § 1717 as a prevailing party, when what it prevailed upon was a motion to dismiss for forum non-conveniens. The Court of Appeal said the trial court didn’t abuse its discretion for saying no. Generally, it is reasonable to find that such an award would be premature because the merits of the case would be litigated elsewhere.

The Supreme Court basically agrees. Under its prior precedent, a defendant that wins a complete victory is entitled to a § 1717 award as a matter of law. See Hsu v. Abbara, 9 Cal. 4th 863 (1995). But winning an FNC motion isn’t a complete victory, just a interim decision about where a case should be brought. While it might be possible that an FNC dismissal could completely kill off a claim, that wasn’t the case here. So the Court of Appeal was correct to hold that there was no abuse of discretion in denying a § 1717 award.

Court of Appeal affirmed.

Didn't See That Coming...

Charney v. Standard General, LP, No. B268928 (D2d5 Mar. 28, 2017)

Plaintiff sues his former employer for defamation and similar torts statements made in a press release in connection with his termination. Unsurprisingly that draws an anti-SLAPP motion. Plaintiff basically concedes the “arising from test” has been met, which, as I previously explained, is not a good idea. And because Plaintiff can’t show that the release was actually defamatory, he can’t show a likelihood of success.

Affirmed.

Thursday, May 25, 2017

To Pay Is to Stay

Quiles v. Parent, No. G054353 (D4d3 Mar. 27, 2017)

To stay enforcement of a money judgment pending appeal, the defendant needs to post a bond. Code Civ. Proc. § 917.1(a)(1). But a defendant does not need to post a bond when the only money award is for costs awardable under § 1033.5. See § 917.1(d). 

Defendant here fully satisfied a money damages judgment, which it did not appeal. But it is appealing a post-judgment award of costs and attorneys’ fees, and hasnt satisfied that yet. Plaintiff is trying to collect that award and the trial court is going along with it. Defendant requests a writ of supersedeas clarifying that collection is stayed pending the appeal.

Relying on a terse analysis in the only case on point, the court here finds that Defendant was entitled to stay of the judgment under § 917.1(d) because no bond is required to stay a costs-only judgment. Attorney fees count as costs when they are awardable under a statute or the law. § 1033.5(a)(10)(B), (C). Since paying of the damages left nothing but costs, Defendant was entitled to a stay.

Writ of supersedeas granted.

Wednesday, May 24, 2017

Appealability of Reference Depends on the Kind of Ref

Lindsey v. Conteh, No. G052016 (D4d3 Mar. 23, 2017)

A discovery referee in a contentious stockholder derivative litigation imposed 100k in sanctions against a defendant for failure to abide by one of his orders.

Q: Is that order appealable?

A: It is.

Q: Why?

Who’s the Client?

Fiduciary Trust International v. Klein, No. A144558 (D1d3 Mar. 21, 2017).

In a trust dispute, a fired trustee declines to give certain documents to his successor, on the grounds that they are subject to the attorney-client privilege. Generally in such cases, the “client” is the office of the trust, not the particular trustee, so a former trustee has no privilege against its successors. There’s an exception, however, for when a trustee obtains personal legal advice about his trusteeship from counsel paid out of its personal funds. The question here is how broad should the exception be and who bears the burden of establishing it.

Based on trust law principles, the court holds that the trustee invoking the privilege must prove the exception and that it applies only when the trustee can demonstrate that it “retained the counsel with whom [it] communicated in a personal capacity and took affirmative steps to distinguish the purported personal advice from advice obtained in a fiduciary capacity.” The court says that the trustee doesn’t necessarily need to go so far as to physically segregate documents (although it’s probably a good idea) but it must take actual steps to identify as privileged communications that are sought from the trustee’s personal-capacity counsel.

Reversed in part for analysis based on the standard in the court’s opinion.

Tuesday, May 23, 2017

A Little Meta, But the Code Still Applies

City of L.A. v. Superior Court, No. B269525 (D2d7 Mar. 20, 2017)

Discovery in a public records act case is kind of confusing. After all, the whole purpose of the case is basically discovery. In this writ, the issue is whether, and to what extent, the Civil Discovery Act applies in cases brought under the Public Records Act.
 

Monday, May 22, 2017

Now a Scalpel, No Longer Just a Hammer.

Shelley v. Harrop, No. C07747 (D3 Mar. 20, 2017) 

This is an appeal of the denial of an anti-SLAPP motion. The motion comes out of a cross complaint alleging three causes of action based, in part, on the cross-defendants maintenance of a frivolous lawsuit, in waste of corporate assets. These causes of action, however, also mix in allegations about other corporate mismanagement like excessive compensation, self-dealing etc.—stuff that’s clearly not addressed under the anti-SLAPP protection. The trial court denied the motion, based on the idea that there were sufficient unprotected assertions to proceed on each claim.

Following the Supreme Court’s recent ruling in Baral v. Schnitt, an anti-SLAPP motion can be used with more precision than that. So long as the protected activity allegations aren’t merely incidental, courts need to look at the portions of claims that do, in fact address protected activity, determine whether there’s a likelihood of prevailing specifically as to the protected activity, and if not, to strike those particular allegations from the complaint, leaving the rest intact. So here, the trial court should have stuck the parts of the causes of action that were addressed to the filing and maintenance of an allegedly meritless litigation, an undisputed form of protected activity.

Reversed in part.

Friday, May 19, 2017

Ancient History, Present Evidence

Phillips v. Honeywell Intl Inc., No. F070761 (D5 Mar. 17. 2017)

A weird thing about asbestos cases is that the same general evidence about the defendant’s actions can get introduced in scores or even hundreds of separate cases. Sometimes even to the point where the practice treatises on asbestos litigation actually address strategies for dealing with specific pieces of evidence. 

Thursday, May 18, 2017

Hard to Be Biased by Something You Don’t Remember

EEC Capital Corp. v. Manatt, Phelps & Phillips LLC, No. B265760 (D2d9 Mar. 15, 2017)

Clients sued Attorneys who represented them in a soured debt deal. The case was compelled to arbitration, where Attorneys won. The arbitrator awarded
Attorneys $7 million in costs and fees. Clients seek to vacate the award.

Nope. 

Tuesday, May 16, 2017

Not a Pickoff Move.

Schoshinski v. City of L.A., No. B269431 (D2d8 Mar. 14, 2017)

There are two class actions against a City for utility overcharging. Case #1 settles, with City agreeing to pay full refunds of the contested fees and other injunctive relief. The class rep in Case #2 didn’t opt out of Case #1 and received the refunds. The city successfully got him out on summary judgment on mootness grounds, but the court permitted amendment to add new reps. The new reps, however, had also received refunds under the Case #1 settlement. The trial court again granted SJ, and the new reps appeal.



Friday, May 12, 2017

Don’t Quack to the Flack

Behunin v. Superior Court, No. B272225 (D2d7 Mar. 14, 2017)

Although it might not be litigated very often in state court, this question comes pretty frequently in high-stakes litigation: When do communications with PR people hired in connection with a litigation come under the cover of the attorney-client privilege?

Tuesday, May 9, 2017

Call it a Lara Notice

People v. Superior Court (Lara), No. E067296 (D4d2 on rehearing, Mar. 13, 2017)

This is a  criminal writ dealing with a change in the law of whether juveniles can be tried as adults, which has apparently caused some disarray in the trial courts. I don’t cover juvenile justice. But on rehearing, there’s an interesting question of writ procedure that was raised on rehearing, because there a bunch of similar writs pending. When does a denied writ become law of the case?

Writ review in the Court of Appeal is basically a two-step process. First, the court has to decide whether to take up the writ. The vast majority of the time it doesn’t do that and the petitioner gets a summary denial without an opinion. It’s well-established California law that a summary denial isn’t a “cause” as that term is used in the state constitution. Which means that it requires no written opinion and (collaterally) has neither preclusive effect nor creates law of the case.

To take up the merits writ, it can do one of three things: Normally it will issue an order to show cause or an alternative writ. These orders start a formal briefing process, which leads to a decision on the merits. Whether a grant or denial, that decision does constitute a “cause”—it requires a written opinion and creates law of the case.

In narrow circumstances, the court can forego the full briefing process and issue what’s called a Palma notice. See Palma v. U.S. Indus. Fasteners, Inc., 36 Cal. 3d 171 (1984). A Palma notice generally informs the parties that the Court of Appeal thinks the petition presents an issue (often a principally legal one) where the court is inclined to grant on a peremptory basis. To satisfy the respondent’s due process rights, the respondent is permitted to file an informal response, and if that doesn’t convince the court the writ issues. Like a writ issued after the more formal OSC/alternative writ process, a peremptory writ issued after a Palma notice is also a “cause.” It requires a written opinion that creates law of the case.  

This case, however, has an unusual fact pattern. The juvenile charging issue was piling up in multiple writs and the failure to quickly resolve it leading to some disarray in the trial courts. So here, the court took the unusual step of issuing a Palma notice that said it was included to take up the writ and deny it on the merits. Which it did. 

And now on a sua sponte motion for rehearing, the Court explains that a writ denied on the merits after a Palma notice is also a cause that creates law of the case. That might seem obvious, but there are some older cases that suggest there’s no cause until an alternative writ issues. These cases, however, are inconsistent with Palma’s concept of a peremptory writ that counts as a cause. There’s also some general language in other cases that suggests peremptory denial on the merits procedure employed by the court is not even an option in California writ practice. But none of these cases are on all fours.

At the end of the day, the distinction between a summary denial and a merits denial after a Palma notice comes down to an issue of jurisdiction. A summary denial is a declination to exercise jurisdiction over the merits of the matter. That’s not what we have here, since the court took jurisdiction and issued an opinion on the merits. So the court’s merits opinion does, in fact, constitute law of the case.

Writ denied.

Monday, May 8, 2017

Not Claim Barred, But Time Barred

Ivanoff v. Bank of America, No. B271035 (Mar. 13, 2017)

Plaintiff is a pro se seeking to avoid a foreclosure. She already lost a breach of contract case against the bank, which was affirmed on appeal. Shortly thereafter, she filed a new case repackaging the same allegations as violations of the federal Truth in Lending Act, aka TILA. The superior court dismissed on claim preclusion grounds.

And the Court of Appeal affirms, albeit for different reasons. The court holds that the TILA claim was not barred by res judicata, because it arose from a different primary right. Nobody really understands what a primary right is, but apparently a claim for breach of contract arises from a different right than a claim for false disclosures under TILA. But regardless, the TILA claim was time barred. As were the other claims at issue in the appeal.

Affirmed.

Friday, May 5, 2017

Silicon Valley Boss Overreach

Glassdoor, Inc. v. Superior Court, No. H042824 (D6 Mar. 10, 2017).

A former employee of TechCo posted a scathing anonymous review on Glassdoor, a website that lets people review past and current employers. TechCo sued the employee as a John Doe for violating an NDA that all TechCo employees supposedly must sign. It then subpoenaed Glassdoor for the review and the poster’s info. Glassdoor objected, TechCo moved to compel, and the trial court granted the motion. Glassdoor took a writ.

The first issue is whether Glassdoor has standing to stand up for Doe’s First Amendment interest in his anonymity. It does. Although it’s a relatively recent development in the law, it has become clear that a publisher can stand up for the right of an anonymous contributor to maintain his anonymity. 

That is particularly true with sites like Glassdoor, which have a substantial business interest in protecting their posters’ anonymity. (Although Glassdoor doesn’t raise it, the court notes in a footnote that the situation is not too far from the interest of a newspaper reporter in refusing to reveal her sources.)

As to the merits of the motion to compel, the court adopts the standard applicable to efforts to subpoena the identities of anonymous Internet “speakers sued as “Does” for libel or slander: (1) the plaintiff must have made reasonable effort to provide notice of the suit to the Doe; (2) the plaintiff must make a prima facie showing of the validity of its claim. The showing is akin to that needed to defeat summary judgment or an anti-SLAPP motion—evidence that, if believed, would be enough to prove a claim.

The Court of Appeal further notes that, to make a prima facie case for an NDA breach, TechCo needed to specifically identify the actionable statements and explain to Glassdoor why they are actionable. It never did that. Although TechCo claimed it couldn’t be more specific without disclosing trade secrets, the court calls BS: “The vagueness with which [TechCo] framed its claims in the face of Glassdoor’s repeated demands for specificity is redolent with the possibility that greater specificity might disclose not valuable secrets but a lack of merit in the claims themselves.”

At the end of the day, TechCo failed to show that any of the statements in Doe’s review were actionable violations of the NDA.

Writ granted.

Thursday, May 4, 2017

Dependency Prelim Isn’t Determination of Fact that Precludes § 170.6 Strike

Johnny W. v. Superior Court, No. A150579 (D1d1 Mar. 9, 2017)

Code of Civil Procedure § 170.6 permits a party to strike a trial judge by filing an “affidavit of prejudice.” The affidavit purports to attest that the party has reason to believe the judge is prejudiced. No further inquiry is permitted. If the affidavit is properly filed, disqualification is automatic. There are, however, some limits, mostly addressed to timeliness. And even if a challenge is timely, a party can’t invoke § 170.6 once the trial court has made “a determination of contested fact issues related to the merits.”

The issue on this writ petition is whether the trial court made a determination of contested fact at an initial detention hearing in a dependency matter. It didn’t. The standard at that hearing was a prima facie; it was addressed only to the sufficiency of the evidence. The court didn’t weigh anything; it just determined that the agency’s case was supported by evidence that, if credited, was substantial. Analogizing to criminal cases holding that a § 170.6 can be timely filed after a prelim, the court holds that the hearing here doesn’t constitute a determination of contested fact issues.

Writ granted.

One interesting random thing: this opinion is a per curiam that doesn’t identify an authoring justice. Don’t see those too much in California, at least in civil appeals. 

Wednesday, May 3, 2017

Manufacturing Juror Consent

Shanks v. Dept. of Trans., No B268459 (D2d6 Mar. 9, 2017)

Juror No. 7 in a wrongful death case got dimed out by Jurors 1 and 2 for refusing to deliberate. The court questioned the tattlers, but not No. 7. It then discharged No. 7 replaced her with an alternate. The newly constituted jury then quickly rendered a $12.6 million verdict after a less than a day of deliberation.

Not good enough.

No. 7 had been the source of some drama before deliberations when Plaintiff accused her of sleeping. (Defendant said it looked more like she just visibly hated Plaintiff’s case.) And then during deliberations, it came to light that No. 1 and No. 2 were miffed with No. 7 because they thought she came into the deliberations having prejudged the case. The court asked these jurors a series of narrow leading questions designed to suss out the situation without revealing any deliberations. Although Defendant asked the court to further inquire of the foreperson, the court didn’t do so, expressing some concern about undertaking a heavy-handed inquiry that could interfere with the deliberations. It then relieved No. 7 and replaced her with an alternate.

In a new trial motion, Defendant put in a declaration from No.7, which said she was not sleeping, that she listened to all the evidence and argument, and that she didn’t prejudge the case—she just simply strongly believed that there should be a defense verdict. She also said that Nos. 1 and 2—who had become chummy and wanted a plaintiff verdict—were just annoyed with her for having opposing views. The trial court denied a new trial; Defendant appealed.

A trial court can discharge a juror when she can’t perform her duties, which includes a failure to deliberate. But there’s a big difference between a non-deliberator and a holdout. Dismiss the latter and you’ve effectively deprived the losing party of a jury trial. So to protect from undue meddling, on appeal, a discharge can be affirmed only if the inadequacy is a “demonstrable reality” revealed in the record.

If there’s some indica of non-deliberation, the court needs to investigate in a non-cursory fashion, albeit in a way that does not reveal the status of ongoing deliberations. The court’s inquiry here wasn’t up to snuff. At minimum, the court needed to inquire of No. 7, if not all twelve jurors on the panel. It certainly should not have stopped its inquiry after questioning Nos. 1 and 2—the two jurors who took issue with No. 7. That slanted the inquiry towards discharge. Given the flawed inquiry, it wasnt a demnostrable reality from the the record that No. 7 was a non-deliberator, instead of a holdout.

But unlike most of the precedent in this area, this trial was civil, not criminal. Plaintiff didn’t need a unanimous verdict to win, only a 9-3. So there’s a question of prejudice. Although the final verdict was 11-1 on most issues—suggesting that No. 7 wouldn’t have made a difference—it was 9-3 on the question of apportionment of fault. That issue will need to be retried.

Reversed.

Tuesday, May 2, 2017

Receiver Procedure Fine on Declarations

City of Crescent City v. Sarvada Nand Hanumanthu Reddy, No. A143640 (D1d4 Mar. 7, 2017)

A motel up in Del Norte County got hit with a judgment for failure to comply with building codes, but afterwards still couldn’t manage to comply. So Crescent City got the superior court to appoint a receiver to oversee compliance. Motelier appeals.


First, M says that his objections to the city’s evidence weren’t properly ruled on. But he forfeits that argument by failing to address specific objections in his brief. And in any event, it looks like most of M
’s objections are not really admissibility issues at all, M simply thinks the city’s evidence was wrong.

M also argues that the trial court erred by refusing to hear live testimony. But a motion to appoint a receiver is a law and motion matter, for which evidence is generally taken by solely declaration unless good cause is shown. Cal. R. Ct. 3.1306(a). Moreover, a party who wants live testimony at a law and motion matter must request it in writing at least three days before the hearing. Cal. R. Ct. 3.1306(b). As M didn’t comply with that rule, it wasn’t an abuse of discretion for the trial court not to take live evidence.


Finally, M appeals the ruling appointing the receiver, which is mostly a substantive issue involving the Health & Safety Code. Suffice it to say, the arguments appear to be similar to
M’s evidentiary objections—complaints that the City’s evidence shouldn’t have been credited over his own. But a trial court is entitled to resolve these kinds of conflicts on a motion and certainly doesn’t abuse its discretion by doing so.

Affirmed.