Friday, June 29, 2018

Every Stupid Case Isn't a SLAPP

Yeager v. Holt, No. C079897 (D3 May 16, 2018)

Famed test pilot Chuck Yeager got successfully sued for fees by his former attorney. He apparently retaliated by suing the attorney for malpractice, breach of fiduciary duty, and other stuff. Attorney filed an anti-SLAPP motion. But this case isn’t a SLAPP. It is well-established that a case being motivated by a prior litigation does not necessarily mean the new case arises from the prior one. Yeager isn’t suing Attorney for suing him for fees. He’s suing him for doing a bad job. And while this lawsuit might be frivolous or barred by res judicata from the earlier case, that alone doesn’t make an anti-SLAPP motion the appropriate remedy to get it dismissed.

Affirmed.

UC Whistleblower Needs Not Exhaust to Sue

Taswell v. Regents of the Univ. of Cal., No. G053960 (D4d3 May 14, 2018)

The Government Code contains a statutory scheme to protect UC employees who become whistleblowers. They can vindicate their rights in an administrative proceeding run by the university system. But the statute also expressly permits a victim of retaliation to file a damages suit “if the university has not satisfactorily addressed the complaint within 18 months.”

Plaintiff here participated in the admin proceeding and lost. He did not, however, seek review of that ruling by filing a writ of administrative mandamus. Instead, he filed a separate lawsuit in superior court. The question is, does his failure to seek review of the admin ruling doom his lawsuit, whether through res judicata or a failure to fully exhaust the prior administrative remedies?

Relying on a Supreme Court case that interpreted an almost identical scheme applicable to CSU employees, the Court of Appeal holds it doesn’t. Although administrative cases can sometimes have preclusive effect, and a failure to seek administrative mandamus can sometimes bar a case for failure to exhaust, it all depends on the way the Legislature sets up the process. The statute here is specifically set up to permit an employee who doesn’t obtain a satisfactory administrative result to bring a de novo case. So Plaintiff’s loss in the prior case and his election not to seek writ review does not doom this one.

Reversed.

Too Many Hits on the American Pipe

Fierro v. Landry’s Restaurant Inc., No. D071904 (D4d1 May 14, 2018)

Plaintiff brings a wage an hour class action against his employer. But a prior class action with identical claims had apparently been previously dismissed for failure to bring the case timely to trial under the five-year rule in Code of Civil Procedure §§ 583.310 and 583.360. The trial court granted a demurrer to the class claims on that basis. It did, however, permit plaintiff’s individual claims to proceed because statute of limitations issues raised by Defendant weren’t evident from the face of the complaint. Plaintiff took an appeal under the death knell doctrine.

Thursday, June 28, 2018

Maxim Maximalism

Nat’l Shooting Sports Foundation v. California, No. S239397 (Cal. Jun. 28, 2018).

Those who toil in the mines of California state law know that the Civil Code has included since its 1872 inception a part called “Maxims of Jurisprudence.” The maxims a bunch of little pearls of wisdom intended to aid in the application of the law. Stuff like “he who consents to an act is not wronged by it.” Civ. Code § 3515. It might seem a little silly to codify this stuff, but the maxims can sometimes prove useful in brief-writing, as they offer pithy aphorisms with convenient code sections to cite. 

But Plaintiffs in this case has gone too far. It is challenging a gun regulation that requires certain handguns to be able to stamp the gun’s serial numbers into a cartridge when it fires. They claim its impossible to do that. And, citing Civil Code § 3531’s maxim that “[t]he law never requires impossibilities,” they say that makes the gun law invalid.

Nonsense. Although the maxims are useful tools to interpret the law, they aren’t some kind of quasi-constitutional rules that can invalidate conflicting statutes. So while the law respects form less than substance, Civ. Code § 3528, nothing stops the Legislature from legislating stupid formalisms. And while the law disregards trifles, Civ. Code § 3533, the Legislature is perfectly within its authority to legislature all kinds of trifling stuff. And the maxim that the law won’t require the impossible merits reading ambiguous statutes not to require impossible stuff. Indeed, Justice Liu here suggests it can sometimes even merit the creation of implicit atextual exceptions. But a statute that creates an impossible condition is not void because it is supposedly at loggerheads with Civil Code § 3531. 

Of course, some kinds of laws for which it is impossible to comply might give rise to constitutional problems. But plaintiffs disclaimed making any constitutional challenge here. So they lose.

Court of Appeal reversed.

Inherent Power Reaches Beyond the Pale

Huang v. Hanks, No. C084702 (D3 May 10, 2018)

Plaintiff, who is apparently mentally ill, has sought civil harassment restraining orders against, inter alios, Tom Hanks, Monica Lewinski, and the Dali Lama. The trial court denied the applications and threw out the claims as patently frivolous. While there’s no statute that specifically authorizes a court to dismiss cases that are facially ludicrous, the court here holds the trial court had the inherent power to do so. And, for that matter, the appeal is frivolous too, given that the Plaintiff’s assertions of error have no support at all in the record.

Affirmed.

Inspector General Investigations Merit Anti-SLAPP Protection

Blue v. Cal. Ofc. of the Inspector General, No. C083195 (D3 May 10, 2018)

Some prison Guards sued the Office of the Inspector General, a body created to provide oversight over internal affairs investigations and the disciplinary processes of the California Department of Corrections and Rehabilitation.

Wednesday, June 20, 2018

The Law Is Not Evidence.

Contractors’ State Licensing Bd. v. Superior Court,  No. A153684 (D1d1 May 9, 2018)

An electrical contractor is in a disciplinary proceeding with Contractors’ State License Board. That’s before an ALJ. But Contractor sued the Board in superior court for declaratory relief, seeking definition of some terms as used in the Labor Code. Contractor noticed the depo of the head of the Board, contending that he could be questioned about the Board’s working definitions of those terms. The Board moved to quash, arguing that the testimony was irrelevant and, in any event, Contractor was seeking an inappropriate apex deposition of a government official. The superior court denied the motion. But the Board took a writ. 

Generally, the heads of government agencies are not subject to deposition in their official capacities. There are, of course, exceptions. The principal one is when the official is a percipient witness with factual information that can’t be gleaned through other sources. That, quite clearly, isn’t satisfied when a party wants to ask the official what he thinks the law means. What an agency head—or anyone else for that matter—thinks the law means is not evidence.


Just like you don’t establish legislative history by deposing individual legislators, you don’t establish regulatory history or administrative construction by deposing agency officials. As the court explains here, Contractor “is not permitted to ask agency officials how they personally interpret statutes administered by the Board, since their personal views are irrelevant to the purely legal issue of statutory construction.”

Writ granted.



Indeed, the same point—that various individuals beliefs about what a law means is not evidence—applies equally to party witnesses and experts. Viz., getting the defendant’s PMQ to admit in a depo that he thinks the law is red when the statute says it is green does not make the law any redder than it is. And just because some law professor or revolving-door government type will be happy to take your clients money to sign an “expert declaration attesting to what his professorship thinks the law means, that does not make his testimony admissible or relevant to anything. So try and resist the urge, however hard it might be, even when the other side does it. That’s what amicus briefs are for.

Tuesday, June 19, 2018

The Baral-Park 1-2 . . .

Newport Harbors Offices & Marina, LLC v. Morris Cerullo World Evangelism, No. G054146 (D4d3 May 9, 2018) 

This is a long-running real estate litigation over a sublease to an office building in the OC. There have been four different appeals in the case, including a trip to the Supreme Court last year. Most of them are disputes over anti-SLAPP motions. This one is too.

Monday, June 18, 2018

Is This Charles Guy Privy With Everyone?




This is a Prop. 65 case about whether there needs to be a disclosure about trace amounts of arsenic that appears in some wine. There’s already a disclosure about alcohol. But plaintiffs want a more general disclosure about other bad chemical stuff too. 

The issue is that most of the defendants in the case settled very similar claims in a prior litigation that resulted in a consent decree. The court holds that, for these defendants, the prior case is claim preclusive to this one.

Which seems mostly fine, except that the plaintiffs in this case aren’t the same plaintiffs who brought the the first case. As good should 1Ls know—and the Supreme Court made super duper clear a few years ago—claim preclusion (i.e., res judicata) only works when the same parties, or those in privity with those parties, are in both cases. Now, maybe there’s something about Prop. 65 litigation that makes every plaintiff privy with every other. Perhaps they are all bringing some quitamish thing on behalf of the public? I’m not a Prop. 65 guy, so I don’t know. But one would at least expect some discussion of the point, and there’s not any in the opinion here. So I’m confused.

Affirmed.

Thursday, June 14, 2018

UCL Penalties Case Goes to a Jury

Nationwide Biweekly Admin., Inc. v. Superior Court, No. A150264 (D1d1 Jun 12, 2018)

Before yesterday, had I been asked whether there’s a right to jury trial in an case brought by a public prosecutor seeking statutory penalties under the Unfair Competition Law, off of the top of my head, I would have guessed no. I vaguely recall having read some cases that say that. Plus the UCL is, so far as California state law goes, a beast of equity. That’s probably what the Court of Appeal first thought too, when it summarily denied a writ Defendant in this case took from the superior court’s striking their jury trail demand. But the Supreme Court granted review and transferred the case back to the Court of Appeal, ordering an assessment of the merits.

And when they got into the merit of it, it turns out everyone’s assumptions were wrong. In a solid, thoughtful analysis, the Court holds that an enforcement action for penalties under the UCL is more closely equivalent to an action at law in the common law of England in 1850 than something at equity. (That’s the test for when there’s a jury trial right under the state constitution.) The Court primarily relies on a U.S. Supreme Court case, Tull v. United States, 481 U.S. 412 (1987) and an older decision of the California Supreme Court, People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283 (1951) to hold that the gist of an enforcement action seeking statutory penalties is to punish, which is a legal, not equitable, practice. The Court holds however, that the jury right applies only to liability. Much like a criminal sentence, a calculation of civil penalties is classically within the discretionary power of the court.

As I recollected, there are a handful of Court of Appeal cases that seemingly go the other way. But the Court plows through them, showing that: (1) they deny a right to jury trial under the Sixth Amendment (although a civil penalties case is punitive, it is not criminal); or (2) they contain cursory or no analysis, or blindly cite to the Sixth Amendment cases, to deny the right without doing any requisite Seventh Amendment (or in California, Article I, § 16) analysis that looks to remedies and equivalents at common law. Finding no other case that has actually done the work, the Court finds these cases unconvincing.

Tthe People also suggest that they could sever off the penalties issue and have their demand for injunctive relief tried first to the court. Because that would necessarily entail a liability ruling, doing so would effectively foreclose Defendant’s jury trial right on liability in any later trial on penalties. But the Court of Appeal rejects that argument. It is true that in California procedure (unlike federal procedure) a court can try a equitable cause of action first, with the court’s fact finding in that trial being preclusive on a later jury trial. Although there’s good authority to do that on a cause-of-action-by-cause-of-action basis, nothing supports to ability to so finely parse the legal and equitable remedies that flow from a single claim.

Writ granted.

Sad Target Stays Sad, But the Lawyers Get Paid

La Mirada Ave. Neighborhood Assoc. of Hollywood v. City of L.A., No. B282137 (D2d2 May 3, 2018)

On the corner of Western and Sunset, there’s a Target that has been sitting half-completed for the better part of a decade. The project has been snaffled up in zoning litigation since basically its inception. Back in 2014, the Challengers—some neighborhood groups, or maybe just groups with names that make them sound like neighborhood groups—won a writ of mandate against the City of L.A., ruling that it had unlawfully granted Target a variance on neighborhood height restrictions. While that ruling was being appealed, the City amended its zoning laws, mooting the appeal. The appeal was dismissed but the underlying writ judgment left in place. There’s now a whole new round of litigation, which resulted in another writ against the City, which is currently on appeal.

But this appeal is about whether Challengers get their attorneys’ fees in the first case. The trial court awarded them almost $1 million under Code of Civil Procedure § 1021.5, which codifies the private attorney general doctrine. Target and the City appeal both the award and its amount.

In the published part of the opinion, the Court of Appeal affirms the trial court’s findings that the Challengers prevailed and that their victory provided a benefit on behalf of the public by vindicating the city’s zoning laws. Moreover, the fact that litigation over the Target is ongoing in other cases doesn’t change that. You don’t need to solve a problem once and for all and forever to be the prevailing party under § 1021.5. Challengers obtained a final judgment in their first writ case, based on the law that existed at the time. That’s all they need.

Affirmed.

Wednesday, June 13, 2018

But Can You Delegate the Legality of the Delegation to the Arbitrator?

Nielsen v. Contracting v. Applied Underwriters, Inc., No. D072393M (D4d1 May 23, 2018) 

It is well-settled that an arbitration agreement can delegate questions of arbitrability to an arbitrator, but only if it specifically says so. But even if the agreement contains a delegation clause, a court still must resolve challenges to the delegation clause itself in the first instance. The Court here holds that courts’ responsibility to address delegation issue remains even when a party’s defense to delegation clause would also be a defense to the entire agreement to arbitrate. 

Here, the delegation clause was invalid because it was contained in an insurance contract whose form had not been approved by the Insurance Commissioner. And the arbitration agreement more generally was also invalid for the same reason. So the trial court didn’t err in denying a motion to compel arbitration.

Affirmed.

Monday, June 11, 2018

Death Shall Not Quiet My Title

Cnty. Line Holdings, LLC v. McClanahan, No. B278790 (D2d6 May 2, 2018)

Debtor owns some real property in Ventura that is subject to two judgment liens. After Debtor dies, the junior lienholder executes against the property and Collector purchases it in the sheriff’s sale. But the senior lien is still out there. So Collector files a quiet title action to extinguish the senior lien. It argues that Code of Civil Procedure § 366.2(a)’s one-year statute of limitations on causes of action against dead people had run and thus that any enforcement of the senior lien was time-barred. 

But § 366.2(a) applies to “causes of action.” The right to execute on a judgment lien is a creditor’s remedy, not a cause of action. It survives so long as the judgment does. And since—for a bunch of complicated probate reasons that I don’t really care to wade into—the lien survives Debtor’s death, the property remains subject to the senior lien. 

Reversed.

Friday, June 8, 2018

The Fait Accompli Exception

Smythe v. Uber Techs., Inc., No. A149891 (D1d3 Jun. 8, 2018)

This is kind of interesting. You might have noticed that ridesharing drivers often have both Lyft and Uber stickers on their cars. Plaintiff here is one of those guys. He’s suing Uber in his capacity as a Lyft driver, alleging that Uber engages in unfair business practices by encouraging people to set up fake Lyft accounts and send its drivers on wild goose chases. But Plaintiff's driver contract with Uber has an arbitration clause in it, so the question is whether his obligation to arbitrate with Uber extends to claims arsing from driving for its competitor.

You dont need to be Farnsworth to get that the case isnt arbitrable under the text of the agreement. The clause is broad; it requires arbitration of disputes arising from or related to Plaintiffs driver agreement with Uber. But its not so intergalactic that it includes every possible dispute between Plaintiff and Uber, such as a dispute arising from Plaintiff's injury sustained while working for an Uber competitor.

But the arb agreement has a delegation clause. It says, contrary to the general rule, questions about arbitrability go to the arbitrator. So Uber says the court should have compelled arbitration nonetheless, and then it was up to the arbitrator to find that Plaintiffs claims in his capacity as a Lyft driver dont arise from or relate to his Uber driver contract and send him back to court accordingly. 

Of course, it seems rather wasteful to pay an arbitrator a couple of grand to entertain motion practice over what is evident from the face of the contract. That said, Uber probably thought it worth a shot, because an arbitrator addressing his or her future employment as an arbitrator has a pretty big financial incentive to find some potential ambiguity to be interpreted in favor of arbitration. Which is why Ive always believed that delegating the arbitrability question to the same arbitrator who is going to get paid to hear the merits is problematic. (Ive lost that argument, for now.)

In any event, theres apparently an exception to the delegation rule, at least in some federal cases, as well as dicta in a 2004 Court of Appeal case and a 1957 decision of the California Supreme Court. Under these cases, even if arb clause clearly and unmistakably delegates arbitrability questions to the arbitrator, courts can still decline to do so when a party’s assertion of arbitrability is wholly groundless. And since that was the case here, the superior court didnt err in denying Ubers motion to compel arbitration, even if just for the threshold question.

Affirmed.

Court Can Intercede to Preserve Right of Newly Indigent to Access Arbitration

Weiler v. Marcus & Millchap Real Estate Inv. Servs., Inc., No G053953 (D4d3 Apr. 30, 2018)

Plaintiff is in an arbitration with her real estate investment advisor. But she claims she’s out of money and can no longer afford to pay her half of the arbitrators’ fees. Under Roldan v. Callahan & Blaine, 219 Cal. App. 4th 87 (2013), when a party’s inability to pay arbitrators risks denial of access to the justice system, she can seek relief with the court. If the moving party is truly unable to pay, the other party gets a choice. It can choose to front the indigent party’s costs. But if it does not want to do that, the arbitration is over and the parties can resolve their dispute in court. 


Here, the arbitrators wouldn’t rule on the Roldan issue, so Plaintiff filed a declaratory relief case. The superior court denied any relief on the grounds that the arbitration agreement was not unconscionable. But the Court of Appeal reverses. The question isn’t whether the agreement is unconscionable, but whether Plaintiff’s subsequent inability to front the costs is depriving her of access to a forum to resolve her dispute. She’s entitled to seek relief in the courts to resolve that question, despite the fact that the arbitration is ongoing. It falls under the court
s vestigial jurisdiction.

There are, however, disputed factual issues about whether Plaintiff really can’t afford to pay the arbitrators. So the trial court on remand needs to resolve those in order to determine if Plaintiff is entitled to Roldan relief.


Reversed and remanded.

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

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