Privilege Claim Is Weak, Like Clock Radio Speakers!

Chen v. Berenjian, G055496 (D4d3 Mar. 28, 2019)

In an effort to avoid Creditor’s collections efforts, Judgment Debtor and his Brother engineered a collusive default judgment and then an execution that let Brother obtain possession of all of JD’s assets, including in particular a pair of stereo speakers. Creditor tries to levy on the speakers, and after learning that they were transferred to Brother based on the default, sues Brother for fraudulent transfer. 

The trial court dismissed the claim, finding it was barred by Civil Code § 47(b)’s absolute litigation privilege. But that misunderstands the nature of the claim. It was not really based on the default judgment. It was based on the wrongful transfer of the speakers to someone who didn’t have a bona fide claim to them. That isn’t communicative, so the litigation privilege does not apply. 

Reversed.

Jerk Neighbors Get Comeuppance on BS SLAPP Motion

Workman v. Colichman, No. B285945 (D2d4 Apr. 2, 2019)

Justice Collins drops the hammer on a really stupid anti-SLAPP motion and appeal. She affirms the denial of the motion, as well as a grant of fees to plaintiff. Then she adds more fees for the appeal.

Say Hello to Indiana

Ryze Claim Solutions LLC v. Superior Court, No. A155842 (D1d3 Apr. 3, 2019)

Plaintiff’s employment agreement has a forum selection for various state and federal courts in Indiana, where Employer is located. Plaintiff nonetheless sued—for violations of FEHA—in Contra Costa County Superior. The trial court denied Employer’s motion to stay in favor of the Indiana forum, finding that FEHA’s venue provision and Labor Code § 925—which renders certain selections of non-California for a unenforceable in certain employment disputes—made the clause unenforceable.

After issuing a Palma notice, the Court here grants a writ. The FEHA venue provisions address venue, not forum. They just say where within California a plaintiff needs to bring his or her claims. As to § 925, it facially applies only to contracts entered after January 1, 2017. Plaintiff’s contract was entered in 2014, so § 925 doesn’t apply. 

Writ granted.

Land Use Group Gets Costs and Fees for Killing B&B

Friends of Spring Street v. Nevada City, No. C086563 (D3 Apr. 4, 2019)

Plaintiffs challenged both a local zoning ordinance and a City’s decision to permit an Applicant to run a B&B in a residential area—a nonconforming use under that ordinance. Plaintiffs lost the facial challenge, but—after an intervening appeal—won the as-applied. They seek to recover their costs, see Code of Civil Procedure § 1032, and their attorneys’ fees under the private attorney general doctrine, see § 1021.5. The trial court denied both, finding that the split decision meant there was no prevailing party. 

So far as costs go, when a plaintiff obtains only non-monetary relief, § 1032(a)(4) permits the court to decide who is the prevailing party for cost award purposes. Generally, the court looks to “whether the party succeeded at a practical level by realizing its litigation objectives . . . and the action yielded the primary relief sought in the case.” Because Plaintiffs were successful in getting the decision approving the B&B reversed, they met that standard and should have been awarded costs. The fact that Applicant could potentially re-apply to the City at some point in the future does not change that fact.

Similarly, Plaintiffs should not have been denied their fees under § 1021.5. Plaintiffs conveyed an important benefit on the public. Generally, they vindicated the application of local zoning law. And in particular, they obtained a ruling that upheld the intent of a local ballot initiative that was the basis of their as-applied challenge. But the trial court made no finding on the other element of § 1021.5—whether the necessity and financial burden of private enforcement make a fee award appropriate—so it will need to decide that on remand.

Reversed and remanded. 

Just Demand a Billion Dollars

Sass v. Cohen, No. B283122 (D2d2 Apr. 4, 2019)

Plaintiff brought Marvin and other claims against her ex-paramour, claiming to be entitled to half the value of various items of real and personal property acquired during the relationship. Defendant defaulted. Notwithstanding Code of Civil Procedure § 580(a), which limits relief on a default judgment to that demanded in the complaint, the trial court awarded plaintiff almost $3 million, plus a constructive trust over one house. Defendant appeared and moved to vacate the judgment. But the trial court upheld the award, finding that § 580(a)’s limits don’t apply to an accounting-type claim where the defendant already has sufficient information to calculate an exposure. 

Forgetting Is Not Juror Misconduct

Stokes v. Muschinske, No. B280116 (D2d8 Apr. 8, 2019)

Juror #11 is the CEO of a company. During voir dire, he says doesn’t really want to be on a jury, because he has a big problem with the time commitment. But he also acknowledges that’s not like going to get him bounced for cause. Some time after Juror #11’s individual questioning was over, Plaintiff’s lawyer somewhat vaguely asked if any of the new jurors had been sued before. Juror #11 didn’t chime up. 

Reply Evidence Can Respond if No New Issues

Savea v. YRC Inc., No. 152379 (D1d3 Apr. 10, 2019)

A demurring defendant asked for judicial notice of a document in its reply brief. New evidence on reply is generally not ok. But when it doesn’t raise new theories or arguments and simply responds to points raised in an opposition, a court has discretion to consider it nonetheless.

Affirmed.

Just the Facts, Official Reporter...

Sonoma Media Inv., LLC v. Superior Court, No. A151968 (D1d5 Apr. 8, 2019)

A city council Candidate sued the local Newspaper for libel over some articles regarding the way his campaign was funded. The trial court granted an anti-SLAPP motion over most of the claims, but permitted discovery into the Newspaper’s malice on others. The Court of Appeal reverses the denial. Candidate failed to made a prima facie showing that the statements were false—a necessary step to show a likelihood of success that must be accomplished without the benefit of discovery. 

The decision was originally unpublished. But now, for good cause, the panel decides to publish, “with the exception of Parts II and III.” Problem is, Parts II and III contain the totality of the Court’s analysis. All that’s left is a recounting of the facts and procedural posture, along with a few boilerplate paragraphs in Part I regarding the standard applicable to anti-SLAPP motions. 

I am, to say the least, somewhat confused.

Reversed.

***Update. Looks like the Court just figured this out. Whole opinion ordered published.

Tis Good to Be a Trucker....

Nieto v. Fresno Beverage Co., No. F074704 (D5 Mar. 22, 2019)

Plaintiff is a truck driver bringing wage and hour claims. His employment contract has an arb clause. But since he’s a transportation worker, a carve out in the FAA’s preemption clause means that state laws regarding the enforceability of arbitration contracts apply. It applies even though the routes Plaintiff drives are all within the State of California because his employer is clearly involved in an interstate business. Which means that Labor Code § 229—an oft-preempted statute that exempts wage and hour cases from arbitration—applies in full force. So the trial court correctly ruled that Plaintiff’s claims aren’t arbitrable.

Affirmed.

Subpoenaing Third Parties for Docs to Use in a Judgment Debtor Exam

Shrewsbury Mgm’t v. Superior Court, No. H043166 (D6 Mar. 11, 2019)

This case, which concerns judgment debtor discovery, is basically the same as the 2017 decision in Yolanda’s, except that it applies to documents instead of testimony. 

Don't Shortcut CCP § 664.6

Mesa RHF Partners, et al. v. City of L.A., No. B288335 (D2d1 Mar. 29, 2019)

Code of Civil Procedure § 664.6 permits parties to stipulate to a court’s entry of judgment on the terms of a settlement—including a judgment of dismissal. It further permits the parties to request that the court retain jurisdiction over any enforcement. But both the settlement and request need to be signed by the parties themselves, not just their lawyers. 

The parties (or maybe the lawyers) in these three zoning cases messed that up. They got client-signed settlement agreements, which included an agreement to continuing jurisdiction. But instead of stipulating to have the settlements entered as judgments of dismissal with retained jurisdiction, they tried to take shortcuts. They filed standard forms requesting voluntary dismissals, which referenced that they wanted the court to retain jurisdiction, but did not attach the agreements or request that the court enter judgment. The clerk then dismissed the cases.

When disputes over the settlements later arose, Plaintiffs moved the court to enforce. Although both Plaintiffs and Defendants agree to that procedure, the trial court held, and the Court of Appeal affirms, that it had no authority to do so. The clerk had dismissed the cases before the trial court ordered jurisdiction retained, and at a time where no client-signed document had been submitted. That deprived the trial court of any jurisdiction to decide to retain jurisdiction. And thus without ongoing authority under § 664.6.

It’s not the end for Plaintiffs, though. They can enforce the settlements in a separate action for breach of contract.

Affirmed.