Thursday, August 31, 2017

Park Works!

Bonni v. St. Joseph Heath Sys., No. G052367 (D4d3 Jul. 26, 2107)

This is an employment dispute where a hospital employee alleges of discrimination and retaliation in connection with some alleged whistleblowing activity. The hospital has a peer review process, under which the Employee was terminated. As many have in the past, the Hospital argued that the peer review was protected activity under the anti-SLAPP statute, and thus that the claims should be dismissed.

Court of Appeal cases had been inconsistent and confused about this issue for awhile, but then came Park. There, the Supreme Court explained that discrimination and retaliation claims “arise from” the acts of discrimination and retaliation, not from whatever formalized process—like a tenure program or peer review—that some quasi-public employers use to adjudicate employment decisions. While statements made during those processes might be evidence of the discriminatory or retaliatory motives of the employer, the claims don’t arise from them in a way that triggers the anti-SLAPP statute. As the court here explains, “Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion.”


Finding no reason to distinguish Park, the court holds that the motion was granted in error.


Reversed.

Wednesday, August 30, 2017

Turnabout on Remand

Crossroads Investors, L.P.  v. Fed. Natl Mortgage Assoc., No. C072585A (D3 Jul. 27, 2017)

This is an odd one. The Court of Appeal issued an opinion affirming the denial of an anti-SLAPP motion. The Supreme Court issued a grant-and-transfer, ordering reconsideration based on an intervening decision. And now, the the Court of Appeal reverses whole hog, in a ruling that is inconsistent with is prior decision in ways untouched by the intervening Supreme Court case.



Tuesday, August 29, 2017

Common Injuries in Class Cert.

Kizer v. Tristar Risk Mgmt., No. G052558 (D4d3 Jul. 27, 2017)

The trial court denied class cert in a putative wage-and-hour class action brought by insurance claims examiners. The central issue is whether the members of the class were misclassified as exempt administrative employees under the pertinent wage order. Plaintiffs convinced the court that that issue could be tried class-wide. But what they failed to do was to convince the court that, if the class should have been non-exempt, they were subject to an official or de facto policy that required the class members to work overtime. Indeed, Plaintiffs didn’t present very much in the way of evidence that any of the class members worked overtime. Absent that proof, the court found that a common fact issue didn’t exist, much less predominate. It denied cert on that ground and because plaintiff’s claims weren’t typical.


On appeal, plaintiff tries to frame the issue of if and how much overtime each class member worked as addressed only to damages. Individualized damages issues, after all, don’t preclude certification, so long as liability is subject to class-wide resolution. But as the court explains here, that framing isn’t right because there’s a difference between the existence of a common injury and the amount of damages. Whether there was a company-wide overtime requirement goes to liability because misclassification alone doesn’t make the employer liable. (Technically speaking, the exemptions are an affirmative defense.) An employer violates the Labor Code only when an employee who has been misclassified as exempt is required to do stuff that Labor Code says non-exempt employees can’t be made to do. Stuff like working overtime hours without getting time-and-half. And without a company-wide policy (formal or not) imposing such a requirement, liability can’t really be addressed on a class-wide basis.


Affirmed.

Monday, August 28, 2017

The Public Issue Standard in a Post-Truth World

Filmon.com v. Doubleverify, Inc., No. B264074 (D2d3 Jul. 25, 2017)

Defendant here sells some kind of service where it sniffs out whether adbuys on the Internet are really effective. One part of this service is to uncover whether the sites on which its customers’ ads are displayed have adult content or are commonly used as channels for copyright infringement. Defendant rated Plaintiff’s site—which purports to be a free and legal content streaming site—as containing both of those things. Plaintiff sued Defendant for various libel-ish torts. Defendant filed an anti-SLAPP motion, which the trial court granted. Plaintiff appeals.


Thursday, August 24, 2017

How High? Who knows?

David v. Hernandez, No. B270133 (D2d6 July 25, 2017) 

Plaintiff in a car crash case, who was pretty badly hurt when his minivan hit a truck pulling a uey on the PCH, tested positive for THC when taken to the hospital. The Tucker wanted to get that into evidence as proof that Plaintiff was impaired, and thus at least partially at fault for the accident. 

Monday, August 21, 2017

A Good Day for Fans of Ever More Discovery

Williams v. Superior Court, No. S227228 (Cal. Jul. 13, 2017)

This Supreme Court case is a Rorschach test. If you’re a plaintiff-side lawyer, it seems perfectly reasonable. But if you’re on the defense side, it feels like the Court is stepping in to squelch a rare effort by a trial court to use its discretion to keep discovery reasonable. 


Friday, August 18, 2017

FAA Has No Say

L.A. Unified Sch. Dist. v. Safety Nat’l. Cas. Corp., No. B275597 D2d8 (July 12, 2017)

The LAUSD brought a mega litigation against 27 different insurers over coverage issues stemming from the sex abuse scandal at Miramonte Elementary that broke about five years ago. One of the carriers had an arb clause in their policy. But others didn’t. The trial court denied a motion to compel under Code of Civil Procedure § 1281.2(c), which permits denial of arbitration under circumstances where there a risk of conflicting rulings in pending litigation with third parties.

Thursday, August 17, 2017

A Bunch of Stuff After a Class Action Trial

Espejo v. The Copley Press, No. D065397 (D4d1 Jul. 7, 2017)

This is a post-trial appeal after a bench trial in an employment class action brought by newspaper delivery persons. The big substantive issue is whether the class were employees of the Newspaper or independent contractors. Having found they were employees, the court awarded about $3 million in restitution under the UCL, plus $1.7 million in prejudgment interest and $6 million in attorneys’ fees ($1.25 of which was to be paid out of the award, the remainder by defendants). There are a lot of issues, a good number of them with some procedural bearing. 

Wednesday, August 16, 2017

The Test We Have Is Fine, Thanks...

ZL Techs. v. Does 1–7, No. A143680 (D1d4 Jul. 19, 2017)

Some anonymous but allegedly former employees of Company put up negative reviews about Company on Glassdoor.com, a website that posts reviews of workplaces. Company sued employees as Does and then subpoenaed Glassdoor for their identifying info. Glassdoor objected on numerous grounds and the trial court denied Company’s motion to compel. Company was unsuccessful in identifying the Does by other means, and thus unable to serve them. The case was dismissed without prejudice under Code of Civil Procedure § 583.420, for failure to timely serve the Defendants.

Monday, August 14, 2017

Vex Ain't a Family Affair

Hupp v. Solera Oak Valley Greens Assoc., No. E065766 (Jun. 23, 2017) 

Son has been previously declared a vexatious litigant. But the operative complaint in this case—about a completely stupid anti-pit bull HOA covenant—isn’t brought by Son. It was filed by Mother, although she’s also pro se. Defendants nonetheless filed an ex parte application seeking dismissal under Code of Civil Procedure § 391.7(c), on the grounds that pre-filing permission was not obtained. The trial court granted the application and dismissed the case.

Generally, being a vexatious litigant is a personal disability that applies only to the litigant’s bringing his own claims as a pro se. That gets extended a little—like in the recent Kinney v. Clark case—where the vexatious litigant is using an attorney as a sockpuppet to litigate on his own behalf. It could also apply if the plaintiff were some kind of alter ego of the vexatious litigant. But none of these apply, as least as to Mother’s claims brought to enforce her own rights. (Although the “puppet” doctrine did apply to a few claims that Mother was bringing to enforce Son’s rights.) So the trial court erred by striking Mother’s claims under § 391.7.

Reversed.

Thursday, August 10, 2017

I Guess It's Not Over

Cnty. of L.A. Bd. of Supervisors v. Superior Court, No. B257320A (D2d3 Jun. 22, 2017)

This is the remand in County of L.A. v. Superior Court, the Supreme Court’s big decision on the scope of the attorney client privilege from the end of 2016. As when this case was before the Court of Appeal the first time around, the panel seems inclined to read the privilege expansively, even after getting reversed for doing that the first time around.

Friday, August 4, 2017

Nuthin' But a Fee Thang

Monster, LLC v. Superior Court, No. B278289 (D2d7 Jun. 21, 2017)

Plaintiff here claims that it was defrauded out of an interest in Dr. Dre’s headphone company, Beats by Dre, right before Dre sold Beats to a certain iconic computer company for $3 billion. But over the course of their relationship, Plaintiff and Beats had entered several agreements that contained both broad release language and provisions that that permitted a prevailing party to recover its fees. So in response to Plaintiff’s tort claims, Beats brought cross-claims alleging that Plaintiff was breaching the releases, thus causing Beats damages in the form of having to incur fees to defend the cases.


Arguably Unauthorized Settlement Is Voidable, Not Void, under Code of Civil Procedure § 437(d).

W. Bradley Electric, Inc. v. Mitchell Engineering , No. A167137 (D1d5 Feb. 28, 2024) Fatal traffic accident case where the Decedent’s family...