Friday, March 29, 2019

That Just Might Be Unconscionable

Salgado v. Carrows Rests., Inc., No. B285756 (D2d6 Mar. 25, 2019)

Appeal of the denial of a motion to compel arbitration. The Court here reverses, finding that the case is within the scope of the clause. But there’s a hitch. Plaintiff was represented by counsel (and indeed had filed the case) when she was confronted by her Employer, who demanded that she sign the agreement. Employer was not there. So if Employer knew Plaintiff was represented at the time the agreement was signed, but nonetheless went around the attorney, the contract might be unconscionable. The Court remands to the trial court to figure that out.

Reversed and remanded.

Thursday, March 28, 2019

Haguein' It Up in Hong Kong

Whyenlee Indus., Inc., No. A155008 (D1d4 Mar. 22, 2019)

Question regarding the validity of Hague Convention service on a company in Hong Kong. Company was served by a process server without prior service on the Hong Kong Central Authority. That is generally permitted under the alternative service provisions in Hague Article 10(b) and (c), which permit parties to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination. But countries can opt out of that my making a reservation.

Hong Kong has, in fact, made an Article 10 reservation. The U.K. originally made one on its behalf in 1970, and then China did an essentially identical one when it took over in 1997. It says:
With reference to the provisions of sub-paragraphs b and c of Article 10 of the Convention, documents for service through official channels will be accepted in the Hong Kong Special Administrative Region only by the Central Authority or other authority designated, and only from judicial, consular or diplomatic officers of other Contracting States.
At first, that seems like a full opt-out. But on closer reading, the limitation applies only to “documents for service through official channels.” So when documents are for service outside of official channels—like documents served on a private party by a process serverthe reservation does not apply. So says the State Department, some materials from the Hong Kong government, and most cases interpreting both the Hong Kong reservation and the U.K reservation it was based on. 

Writ denied.

Monday, March 25, 2019

Trial Court Must Show Work on Class Cert

Myers v. Raley’s, No. C086236 (D3 Mar. 12, 2019)

For reasons that are a little obscure, an appeal of an order denying class cert is  not reviewed for its results, but for the validity of the trial court’s reasoning. Unlike in most other appellate contexts, a reviewing court will not affirm for some other unstated reason that is nonetheless supported by the record. Which means
in addressing a motion for class cert, a trial court is required set out its reasoning 

The court’s ruling here didn’t do that. It just recited the statutory standard under Code of Civil Procedure § 382. So the Court of Appeal, after implying that denial was wrong on the merits based on more recent authority, reverses the trial court for failing to state its reasons.

Reversed.

Tuesday, March 19, 2019

Don't Do This

Martinez v. OHara, No. G065950 (D3d3 Feb. 28, 2019)

The notice of appeal in this case refereed to the (female) trial judge as a “succubus.” For those without a copy of the Monster Manual on hand, that’s “a demon assuming female form which has sexual intercourse with men in their sleep.” 

That, plus several baseless claims in briefs that the trial judge got the law wrong on purpose, get Plaintiff’s attorney in this case called out by name and referred to the California State Bar. Indeed, this is an otherwise unpublished opinion, but the 4/3 went out of its way to publish this part to lay down a marker that sexist bullshit like that isn’t going to fly. 

Good for them.

Monday, March 18, 2019

Fees in Harmony

Richmond Compassionate Care Collective. v. 7 Stars Holistic Found., No. A154581 (D1d2 Mar. 15, 2019)

This is an appeal of an attorney fee award following a partial grant of an anti-SLAPP motion in this case. The trial court generally denied the motion but struck a handful of allegations within Plaintiffs’ Cartwright Act claim—relying on the Supreme Court’  recent decision in Baral v. Schnitt. Most of the claim, however, was left standing. The trial court granted a motion for fees under Code of Civil Procedure § 425.16(c), but cut the award way down based on the limited success achieved. Plaintiffs appeal.

Plaintiffs don’t quibble with the amount of the award. Instead, they claim the award was impermissible under the Cartwright Act. Their argument appears to be: (1) the Cartwright Act permits a prevailing plaintiff to recover its attorneys’ fees; (2) courts have read that to mean that a prevailing defendant is not entitled to a fee award; and therefore (3) § 425.16(c) doesn’t authorize a fee award to a prevailing anti-SLAPP defendant because it conflicts with the Cartwright Act. 


The problem with that argument, however, is that the cases that say a defendant can’t get fees under the Cartwright Act reach that result because that is unauthorized by statute. But § 425.16 is a statute. And it authorizes an award. So there’s no conflict at all between the Cartwright Act and § 425.16(c).


Affirmed.

Friday, March 15, 2019

Class Action Tolls Only Individual Claims

Fierro v. Landrys Restaurant, No. D071904A (D4d1, Feb. 15, 2019)

When this case was first decided last year, I noted that the opinion seemed sideways with the U.S. Supreme Court’s very recent decision in China Agritech. That case held that although under the so-called American Pipe doctrine, a pending class action tolls the statute of limitations for class members’ individual claims, but it does not do so for other class actions. The California Supreme Court granted review and transferred the case back to the 4/1, ordering it to reconsider in light of China Agritech

Post-transfer, the Court of Appeal agrees that the rule in China Agritech should also be adopted as a matter of California state class action procedure. So no tolling for the prior class action. The Court, however still can’t tell what’s time barred from the face of the complaint, so it remands for the trial court to deal with that issue. 

In getting there, the Court decides an alternative issue. Apparently, the prior class action was dismissed after a class was certified for failure to bring it to trial within five years under Code of Civil Procedure §§ 583.310 and 583.360. Defendant claims that the current class claims are barred from the res judicata effect of that dismissal. But they aren’t. A dismissal under the five-year rule is not with prejudice and thus not preclusive. Practically, since five years is longer than most statutes of limitations, a plaintiff dismissed under the five-year rule won’t be able to refile. But it is nonetheless theoretically possible, particularly if some post-filing tolling like American Pipe is in the mix.

Reversed.

Wednesday, March 13, 2019

Straight-Up Park

Laker v. Bd. of Trustees of the Cal. St. Univ., No. H044836 (D6 Feb. 28, 2019)

This SLAPP case is a pretty straight-up application of the Supreme Court’s Park decision. Plaintiff—a Professor at San Jose State—complained to various university officials about the adequacy of the University’s investigation of a Title IX complaint a student had made against his Department Chair. Professor claims that in response, the Department Chair and the University ginned up some phony sexual harassment investigations against Professor. He sues for defamation in the statements that were made as part of the investigations and for retaliation under the FEHA.


As an astute reader of Park would know, the defamation claims arise from the protected activity, but the retaliation claims generally do not. 


It’s well-established that a public university’s internal investigations are “official proceedings authorized by law.” And under Park, claims whose fundamental elements rely on statements made in or in connection with them “arise from protected activity” under Code of Civil Procedure § 425.16(e)(1) or (2). 


Professor tries to throw up an argument that the proceedings were a “sham” and thus “illegal” and there for outside the purview of the anti-SLAPP statute under Flatley. But if you have learned one thing from reading this blog, you know that Flatley arguments almost always fail because the standard is almost impossible difficult to satisfy. Which is the case here too.


Moreover, for essentially the same reason the claims arise from protected activity, the statements in the investigations are privileged under the absolute “official proceedings” privilege in Civil Code § 47(b)(3).


The retaliation claims, however, are different. The gist of a retaliation claim is that the defendant made some adverse employment action to unlawfully punish the speech of the plaintiff. Most employment decisions aren’t protected, even if communications will be used as evidence to prove up the plaintiff’s claim. That said, when the adverse decision is itself a speech act (e.g., I complained so you trashed my reputation in the press)—it can be protected. 


So most of the retaliation claim stands. The University’s official decision to launch an investigation is not itself speech, even if it is sometimes carried out through it. But to the extent that Professor’s theory is that University retaliated against him by defaming him in the investigations that’s going to be protected and privileged under the Civil Code for the same reason as the defamation claim.


Reversed in part.

Friday, March 1, 2019

Cal. Supremes Approve Sworn Hearsay in Anti-SLAPP Step Two

Sweetwater Union Sch. Dist. v. Gilbane Bldg. Co., No. S233526 (Cal. Mar. 1, 2019)

Almost three years ago, the 4/1 held that grand jury transcripts and sworn change of plea documents could be considered during stage two of the anti-SLAPP analysis to ascertain whether plaintiff can establish a prima facie case. The Supreme Court granted review and now affirms for basically the same reason.

Evidence submitted in connection with an anti-SLAPP motion generally needs to be admissible. But—much like a summary judgement motion—an anti-SLAPP motion is meant to be decided without oral testimony. So declarations can be used in lieu of live testimony in court, under the theory that the testimony in them could be converted into an admissible form at trial. 

So here, the Court finds that the grand jury transcripts and change of plea forms are sworn testimony that is functionally equivalent to a declaration. So long as it’s reasonably likely that the testimony could be offered in an admissible form at trial, it could be considered on the motion even if it didn’t currently fall within an established hearsay exception.

Court of Appeal affirmed.

Personal Service Required

Meza v. Portfolio Recovery Assocs. LLC, No. S242799 (Cal. Feb. 15, 2019)

This case concerns a procedural issue in limited civil cases. But it arises in a federal debt collection case where the Ninth Circuit certified a question to the California Supreme Court. Plaintiff in that case contends that the failure to comply with the the procedure made Defendant’s debt collection process deceptive under the Fair Debt Collection Practices Act.


The Jurisprudence of Signification

Wood v. Superior Court , No. A168463 (D1d2 Mar. 14, 2024). Yes. You can change your legal name to Candi Bimbo Doll if you want to. See Cod...