Michael Jackson Is Not Michael Jackson

Serova v. Sony Music Entm’t, No. B280526 (D2d2 Aug. 28, 2018)

About a year and a half after Michael Jackson died, his Label released an album called Michael, which purported to contain his final recordings. There’s been some controversy about the record. In particular, there are rumors that Jackson didn’t sing lead on all or some of the tracks—a soundalike was used instead. Plaintiffs here brought a class action against the Label and Jackson’s estate under the UCL, FAL, and CLRA. Key to the issue on appeal is that they asserted that album’s cover and some promotion materials were misleading because they suggested that Jackson was the lead singer on everything.

Because CEQA!

Citizens Coalition Los Angeles v. City of L.A., No. B283480 (D2d2 Aug. 23, 2018)

I don't really understand anything in this opinion. But the Court of Appeal turned Sad Target on Western and Sunset's frown upside down today, in an appeal about something something EIR. Who knows if that ends it. Might be ten more rounds to go.

Reversed.

The Condition/Covenant Conundrum

Colaco v. Cavotec SA, No. G052619 (D4d3 Aug. 10, 2018)

This is a complicated breach of contract case arising from a sale of corporate assets. It addresses an issue of contract law that, while not procedural, is worth at least a mention.

Inexcusable Neglect Can Still Merit a Continuance

Levingston v. Kaiser Foundation Health Plan, Inc., No. E066271 (D4d2 Aug 17, 2018)

This is some kind of whistleblower case against Kaiser Permanente. Kaiser moved for summary judgment. Plaintiff opposed. Her opposition included some inadvertently disclosed privileged document that apparently belonged to Kaiser. That got her counsel DQ’ed and her opposition struck. The court ordered former counsel not to discuss the document and continued the SJ hearing for six months to let plaintiff get new counsel.

OBJECTION: WRONG!!!!

Webster v. Claremont Yoga, No. B279272 (Aug. 16, 2018)

Customer at a Yoga Studio claims that an Instructor there hurt her back when he put her in various positions. Studio moves for summary judgment.

Approved as to Form and Content

Monster Energy Co. v. Schechter, No. E066267 (D4d2 Aug. 13, 2108)

A settlement agreement at issue in this case obliged "the parties and their attorneys” to keep the settlement confidential. Plaintiff’s attorney signed the agreement, but only “approved as to form and content.” He then proceeded to tell a shady media outlet (which might have been controlled by his firm) about the settlement. Defendant sued the attorney. But the Court of Appeal held that the agreement didn’t actually bind the attorney. The client couldn't bind the attorney, just by adding them into the agreement. And the attorney's signing under "approved as to form and content” language was not an assent by the attorney to be bound. Which means a SLAPP motion prevailed because the claim couldn't succeed.

The lesson here is clear: If you are facing an Avenatti, he needs to actually agree to be a party to the confi, or else your only remedy is going to be against Stormy.

Reversed.

Lost in Translation

Juarez v. Wash Depot Holdings, Inc., No. B282667 (D2d6 Jul. 3, 2018)

As we hopefully all know by now, claims under the Labor Code Private Attorney General Act aren’t arbitrable. Recognizing that fact, a Car Wash’s arb agreement waived the right to bring a PAGA claim, but provided that the PAGA waiver, if unenforceable, would be severable from the rest of the agreement to arbitrate. Or at least that’s what the the English version said. 

Not a Prior Agreement

Williams v. Las Posas, No. B282513 (D2d6 Jun. 27, 2018)

Oh good. Another nursing home arbitration case. 

The Patient—who suffered a traumatic brain injury in a bike accident—had signed both an admittance agreement and a separate arb agreement. The arb agreement contained a broad clause that required any disputes arising from or related to the admittance agreement or any care provided by the nursing home go to arbitration. 

Sanctions Never Seem to Stick, Vol. 2,482 ...

Moofly Prods., LLC v. Favila, No. B282084 (D2d1 Jun 22, 2018)

Code of Civil Procedure § 1008(d) says that a party can get sanctions for an improper motion for reconsideration “as allowed by [§] 128.7.” Section 128.7(c)(2), in turn, says a court can enter sanctions, but only after it issues an order to show cause that describes the conduct and gives the offending party twenty-one days’ notice to show cause or to withdraw the offending filing. The twenty-one day window to withdraw the filing is referred to as a “safe harbor.” So the question here is whether § 1008(d)’s reverence to § 128.7 means to incorporate just the standard for deciding when something is frivolous or whether it incorporates the whole shebang of § 128.7’s procedures, including the safe harbor. 

The Court finds that § 1008 takes in §128.7 whole hog. Relying on Moore v. Shaw, 116 Cal. App. 4th 182, 199 (2004), which addressed a similar sanctions cross-reference in the anti-SLAPP statute, it holds that by referencing § 128.7, the Legislature meant to incorporate all of the sanctions regime, including the safe harbor procedure. Which basically means that if the court thinks a reconsideration motion merits sanctions, it can’t deny the motion and then issue an order to show cause. Because in that case, the motion can’t be withdrawn. The notice period for a motion is generally shorter than the safe harbor, so the court would need to take the reconsideration motion off calendar, or at least kick the hearing to give the safe harbor window and then address the merits and sanctions at the same time. 

Which, practically speaking, means that sanctions under § 1008(d) are basically never going to happen.

Reversed.

Don't Shoot at the King When You Need to Hit His Bureaucracy

Templo v. State of California, No. A151094 (D1d3 Jun 18, 2018)

Plaintiffs contend that Code of Civil Procedure § 631—which requires the posting of nonrefundable fees to preserve the right to jury trial—is unconstitutional because it’s a tax that wasn’t approved by a legislative supermajority. So they sued the state for declaratory relief. The trial court granted a motion for judgment on the pleadings, finding that the state wasn’t the proper defendant in such an action. 

In California, the general rule is in a case challenging the constitutionality of a statute is that you don’t sue the state, the governor, or the legislature. Instead, the proper defendant is the public officer or agency tasked with administering the statute. The idea is that that is who has the most significant institutional interest in the final outcome of the litigation. In a case challenging court funding, that agency would be the Judicial Council, which oversees the budget for the state judiciary. 

Problem is, plaintiffs already sued the Judicial Council, but (for reasons unexplained) dismissed it with prejudice at some point earlier in the case. So their story ends here.

Affirmed.

Waived!

Von Becelaere Ventures, LLC v. Zenovic, No. D0702620 (D4d1 Jun. 6, 2018)

Construction dispute between a Builder and a Property Owner. The relevant contract has an arbitration clause. But Property Owner brings a construction defect case against Builder in state court in San Diego. Builder—who apparently didn’t get paid—then sues Property Owner in Orange County to enforce and foreclose on a mechanics lien he has on the property. Eventually everything gets transferred and related to a single case in San Diego. Builder moves to compel arbitration of the construction defect case. But the trial court denies the motion, reasoning that by filing the mechanics lien case, Builder waived the right to compel arbitration.

There’s a statute—Code of Civil Procedure § 1281.5—right on point. It preserves the statutory foreclosure remedy in circumstances where there’s an arbitration contract. The idea is that the lienholder files the lien case, immediately stays it, and then if it wins the arbitration, it can go back to court to enforce the award through the lien.

But to invoke § 1281.5, plaintiff’s complaint must indicate that the dispute is subject to arbitration, that the plaintiff does not intend to waive that right, and that plaintiff will move to stay the lien case pending arbitration, either concurrently with the complaint or within the next thirty days. Builder didn’t put any of that stuff in his OC complaint. So he waived.

Affirmed.

Sweating the Facts on Remand

Strategic Concepts, LLC v. Beverly Hills Sch. Dist., No. B264478M (D2d6 Jun. 6, 2018)

A while back, the Court of Appeal reversed and remanded a jury verdict for the plaintiff. The reversal was without qualification; it put no limit on the issues to be decided on remand. On a petition for rehearing, however, plaintiff asks for the modification of some facts in the opinion, arguing they will give her a problems on remand. The Court of Appeal doesn’t agree. In a situation where there’s an unqualified reversal and remand of a trial verdict, the facts recited in an appellate opinion aren’t binding on the ultimate merits. Which makes sense, since the Court of Appeal generally isn’t allowed to find facts on the first instance.

Reversed and remanded.