Friday, December 29, 2017

Is the Condition of a 1993 Mercury Tracer Really a Matter of Public Interest?

Klem v. Access Ins. Co., No. D070623 (D4d1 Nov. 20, 2017)

When Plaintiff got into an accident, the other driver’s Insurance Company gave notice to the DMV that Plaintiff’s car—a wrecked ’93 Mercury Tracer with 92k miles on it—was now a “salvage title” vehicle. That puts some kind of notification on the title that the vehicle has been totaled, which likely makes it hard to re-sell, even if repairs are made. Plaintiff was unhappy about this reporting, because he wanted to fix the car. Which ultimately led to Plaintiff suing the Insurer for slander of title and violations of the Unfair Competition Law. Defendants filed an anti-SLAPP motion, which the superior court denied, and the Insurer appealed.

Wednesday, December 20, 2017

Chargemaster Avoids Class Cert Again

Hefczyc v. Rady Children's Hospital San Diego, No. D071264 (Nov. 11, 2017)

This is another “chargemaster” medical billing class action, almost identical to the Kendall case I wrote about a few weeks ago. In litigating class cert, the plaintiff raises and the court rejects many of the arguments raised in Kendall. In particular, the court holds that California really recognize the somewhat lower thresholds for class certification that apply under federal law when a plaintiff seeks only declaratory or injunctive relief. See Fed. R. Civ. P. 23(b)(2). And since Plaintiff didn’t meet the burden to certify his class under state law requirements, class cert was properly denied.

Affirmed.

Monday, December 18, 2017

Relation Back Doesn’t Apply Here

Curtis Eng'g Corp. v. Superior Court, No. D072046 (D4d1 Nov. 16, 2017)

In some professional negligence cases, the plaintiff is required to obtain and file a “certificate of merit”—basically a declaration from an expert attesting that the claim isn’t bogus. Under Code of Civil Procedure § 411.35, the certificate is supposed to be filed with the complaint. But if the attorney certifies that a certificate couldn’t be obtained fast enough to avoid blowing the statute, it can be filed within sixty days of the original filing. Plaintiff in this case didn’t file a certificate with the original complaint, and didn’t try to add one until well after the sixty days had passed and the statute of limitations had otherwise run. The Court here finds that puts plaintiff out of court. 

Although Plaintiff claims that the relation back doctrine should apply, the Court holds that the Legislature didn’t intent to import a relation back concept when it passed § 411.35. The statute made its deadlines clear and mandatory. To apply a relation back concept to permit nunc pro tunc filings more than sixty days after filing would make them essentially meaningless. Thus, the trial court should have granted a demurrer and dismissed the case.

Writ granted.

Friday, December 15, 2017

No RJT for BFD.

Central Laborers Pension Fund v. MacAfee, Inc., No. H039508 (D6 Nov. 15, 2017)

This case—a stockholder suit alleging a breach of fiduciary duty in connection with a merger—is interesting because 90 percent of it is decided under Delaware law, but the court elected to publish it anyway. Having done a number of similar cases in California state courts, that’s pretty useful.

But there’s also an issue about the right to jury trial. In Delaware, there would be no jury trial right for these cases, because they are heard in the Court of Chancery, a court of equity that doesn’t use juries. But, as the court notes, the jury trial issue is a question of California procedure, even when Delaware substantive law applies under the internal affairs doctrine. Under California law, a claim for breach of fiduciary duty is inherently equitable, even if the remedy sought includes damages along with injunctive relief. Plaintiffs thus didn’t have a right to a jury trial in this case and the trial court did not err by striking their jury demand.

Reversed in part.

Thursday, December 14, 2017

Public Forum Questions Under CCP § 425.16(e)(4)

Ralphs Grocery Co. v. Victory Consultants, Inc., No. D070804 (D4d1 Nov. 15, 2017)

The trial court in this case granted an anti-SLAPP motion, dismissing a case where a grocery store sued paid petition signature gathering company for trespassing when it gathered signatures right outside the entrances to two grocery stores in San Diego. 

Monday, December 11, 2017

Coming Around, Slowly

Whitehall v. Cnty. of San Bernardino, No. E065672 (D4d2 Nov. 15, 2017)

Plaintiff sued her employer—a government Agency—for retaliating against her for being a whistleblower. The Agency responded with an anti-SLAPP motion asserting that the case arose from its internal investigation, which was an “other proceeding” protected under Code of Civil Procedure § 425.16(e)(1) and (2). Plaintiff then did something you should never, ever do. She conceded the “arising from” element was met, but argued that she could win on the merits. In a pleasant departure from the many cases that have gone wrong on that move, however the Court of Appeal here steps in to say that notwithstanding the concession, arising from isn’t met. 

Plaintiff isn’t claiming that the Agency defamed her or something during the investigation. She’s claiming it fired her for blowing the whistle. Under the Supreme Court’s recent decision in Park, official employment decisions like that are not, in themselves, protected activity, even if they might be proceeded by “official proceedings” like internal investigations. Because the element of the claim sounds in the termination for retaliatory reasons, and not the Agency’s investigation, the claim does not actually arise from anything protected.

And in any event, this time, Plaintiff did make out a prima facie case of wrongful termination, including by disputing the various immunity and privilege defenses raised by the Agency. 

Affirmed.

Thursday, December 7, 2017

Voluntary Dismissal Is Enough Merit to Avoid Malpros SLAPP

Medley Capital Corp. v. Security Natl Guarantee Inc., No. A147726 (D1d2 Nov. 13, 2017)

A party that voluntarily dismissed some counterclaims in a prior real estate dispute got hit with a malicious prosecution case. The Dismisser responded with an anti-SLAPP motion. Given the subject matter, nobody argues the case doesn’t meet the first—“arising from protected activity”—element of the analysis. As far as potential for success goes, Dismisser claims that a voluntary dismissal doesn’t satisfy the favorable termination element of a malpros claim. But there’s no doubt that a voluntary dismissal can count as a favorable determination, even if that is not always the case. Given that disputes in evidence break in favor of the plaintiff on an anti-SLAPP motion, the voluntary termination was enough to make out a prima facie case, even if there were some circumstances where Dismisser could explain the dismissal in a way where it wouldn’t count as a favorable termination.

Affirmed.

Tuesday, December 5, 2017

Who You Givin’ Only One Star?

Yelp Inc. v. Superior Court, No. G054358 (D4d3 Nov. 13, 2017)

Discovery of anonymous poster information from Internet companies has been a hot topic in Court of Appeal lately. In the past year or so, there’s been a case about Google, and a pair of cases involving Glassdoor. This time it’s Yelp.

Following the first Glassdoor case—the court finds that Yelp had standing to raise its customer’s interest in remaining anonymous, because Yelps ability to maintain its reviewers anonymity is part and parcel of its very business. But then following the test from the second Glassdoor case, the court finds that the plaintiff has nonetheless made a sufficient prima facie showing of defamation to get at the information. So the court affirms the trial court’s order to produce the info. It reverses, however, on discovery sanctions. Given that the Glassdoor cases were decided after the trial court’s order, the issues presented in the dispute were novel enough that Yelp’s arguments in resisting the discovery were substantially justified.

Writ denied, sanctions order reversed.

Monday, December 4, 2017

Fast and Loose Doesn’t Look Good on You

Padron v. Watchtower Bible & Tract Society of N.Y., Inc., No. D070723 (D4d1 Nov. 9, 2017)

In a child sex abuse case against a Church, the Church is stonewalling about producing documents detailing other abuse incidents. In another, related case, it previously convinced the Court of Appeal that terminating sanctions weren’t appropriate, in lieu of a coercive monetary penalty that could exceed the propounding party’s costs of litigating the discovery issue. See Lopez v. Watchtower Bible and Tract Society of New York, Inc., 246 Cal. App. 4th 566 (2016). So when the Church kept stonewalling in this case, following Lopez, the trial court found a willful refusal to comply with its discovery orders to produce exactly the same documents and by fined it $4,000 per day of noncompliance. The Church appeals, again.

But this time it doesn’t end well.

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...