Once Means Once

Hodges v. Cnty. of Placer, No. C084020 (D3 Oct. 29, 2019)

Section 472 of the Code of Civil Procedure says: 

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.

Plaintiff here tried to file a third amended complaint, without seeking leave, before Defendant responded to his second amended complaint. That, of course, ignores the word “once.” So the trial court struck the pleading and the Court of Appeal affirms.

Affirmed.

Dumb Case, But Not a SLAPP

Supershuttle Int’l, Inc. v. Labor & Workforce Dev. Agency, No. B292054 (D2d8 Oct. 7, 2019)

Supershuttle won a case in Sacto Superior against various state labor agencies, which resulted in a ruling that some of its drivers were independent contractors, not employees. But then the Labor Commissioner served Supershuttle with a bunch of so-called Berman notices in administrative wage claims brought by drivers in LA. 

The whole Berman procedure  doesn’t apply to independent contractors. But the Labor Commissioner indicated she didn’t intend to be bound by the Sacto ruling. So Supershuttle filed an action in LA Superior, seeking dec relief that the agencies were collaterally estopped from re-litigating the IC/employee issue on behalf of the drivers in the Berman hearings.

The Commissioner filed an anti-SLAPP motion, which the trial court denied. The Commissioner appeals. 

This is all a little hard to follow, because Supershuttle’s moves are kind of procedurally screwy. As the Court points out, Supershuttle could have just argued collateral estoppel in the trial de novo it gets in superior court on appeal of an adverse Berman ruling. So it’s not clear why this declaratory relief action is procedurally legit. (The collateral estoppel point also seems a little fraught, given that the drivers who are making the wage claims weren’t parties to the Sacto case. “Due process prohibits estopping [non-parties to prior cases] despite one or more existing adjudications of the identical issue which stand squarely against their position.” Blonder-Tongue Labs., Inc. v. Univ. of Illinois Found., 402 U.S. 313, 329 (1971).)

In any event, just because a case is dumb or procedurally flawed doesn’t make it a SLAPP. Here, the action arises from and challenges the Commissioner’s official quasi-judicial act of declining to apply preclusive effect to the prior judgment. Although official acts of government bodies are sometimes preceded or conveyed in communications, the acts themselves are not exercises of speech or petitioning. They are thus not subject to anti-SLAPP treatment. The Supreme Court was pretty clear on that in both Park and City of Montebello.

Affirmed.

A Heavy Pen for a Used 2011 Hyundai

Morris v. Hyundai Motor Am., No. B290693 (D2d7 Oct. 11, 2019) 

An appeal of a attorneys’ fee award in a Song-Beverly Act case. In those cases, a prevailing attorney gets paid based on “actual time expended,” regardless of the size of the recovery. That encourages good attorneys to take these cases because the attorneys can get fully compensated despite the typical mid-five figure amount in controversy. Unfortunately, it also sometimes encourages overbilling.

Plaintiffs’ lawyers here sought about $200k―$128k with a 1.5 multiplier―but got whacked down to $75k by the trail court. Plaintiff argues the trial court engaged in a prohibited “proportionality analysis,” where a fee award gets reduced to be in line with the recovery. That’s not ok in Lemon Law cases because that is not “actual time expended.” But that’s not what happened here, so far as the Court of Appeal reads the record.

Instead, the judge reduced the award because he thought the lawyers overstaffed the case. Eleven different attorneys from two firms billed on the case, in which discovery was not litigated and did not go to trial. The court found six attorneys be redundant and cut their time entirely. It also cut the rates.

None of that was an abuse of discretion. A trial court can use across the board cuts if it feels like an unreasonable amount of time has gone into a lodestar. For instance, instead of cutting six lawyers, the court could have cut 30 percent of each lawyer’s time. That would have reached the same result and been fine. The court also had discretion to reduce the billers’ hourly rates, notwithstanding unrebutted evidence that the rates charged were similar to those for other attorneys in the same area of practice. The court could have found, for instance, that that the matter wasn’t all that complex, that the case didn’t go to trial, or that senior partners were doing associate-grade work.

Affirmed.

Evidence Is Not Elements

Miller Marital Deduction Trust v. Zurich Am. Ins. Co., No. A155398 (D1d3 Oct. 15, 2019)

This anti-SLAPP case is a straight up application of the Park rule. Insured sued Carrier for failure to provide Cumis counsel. As part of illustrating why Cumis counsel was required, Insured quoted some attorney statements made in connection with the litigation. Carrier calls that a SLAPP, but that’s not right. The element here is failure to provide counsel. The statements don’t satisfy the element, so the claim doesn’t arise from them. They are just a piece evidence in support of a more general point—that appointment of Cumis counsel was 
required.

Affirmed.

The Way Way Back

Rand Resources, LLC v. City of Carson, No. S235735 (Cal. Feb. 4, 2019).

Somehow I managed to miss this Supreme Court anti-SLAPP decision from the beginning of the year. I covered the Court of Appeal decision, and then mentioned the Supreme Court decision in in my post on the Eddie Money case. But I just forgot to write it up.

Anyway, the decision mostly presages the Supreme Court’s decisions in Wilson and FilmOn, and I’m mostly only going back to it for completeness/using this as a research tool purposes. It’s not news.

The dispute is over an alleged conspiracy to replace the company designated to be the City of Carson’s exclusive agent in recruiting a football team to move to Carson. There’s basically three groups of claims. 

The first bucket of claims allege that the City lied about breaching its contract with the Original Agent (the plaintiff) and steered the business to New Agent. There are supposedly some secret emails between various City officials and New Agent, as well as some lies City officials told to Original Agent. While these statements form the basis of the claims, per Park, they nonetheless fell outside of the anti-SLAPP statute because: (1) they were too attenuated to any public decision to be in connection with an official proceeding under Code of Civil Procedure § 425.16(e)(2); and (2) although Original Agent argued that the statements were related to bringing a football team to Carson, they more specifically related to who the city should use as an agent to carry out that goal. 

While bringing football to Carson might be an issue of public interest to bring the case under § 425.16(e)(4), who gets to be the agent isn’t. Here—somewhat previewing his opinion in FilmOn—Justice Cuellar makes clear that the focus of the public interest inquiry should be the actual speech at hand, not some general topic that it might tangentially relate to. And while it is theoretically possible that the agent selection issue could be a public issue, the City didn’t come forward with any evidence to show that to be the case. 

The second group concerns a claim for promissory fraud. Here, there is a Park problem. The actual fraudulent statement—something about renewing the Original Agent’s contract—is not protected activity. Although the claim alleges some other more arguably protected statements that Original Agent contends show bad intent, the fraud claim does not arise from those statements. They are just evidence.

The third bucket of claims, however, are different. They are claims against New Agent for interfering with Original Agent’s contract with the City. The interference took two forms. First, New Agent lobbied the City not to renew Original Agent’s contract and to hire New Agent instead. Second, New Agent communicated with the NFL in efforts to convince it to relocate a team in Carson. The Court holds that first type of statements are covered by (e)(2), since they were communications meant to influence and official decisions. The the second were covered by (e)(4) since, unlike the selection of the agent, the issue of bringing a football team to Carson was and public interest issue. 

Court of Appeal reversed in part.

New Claim, New Clock

Starview Property, LLC v. Lee, No. B292245 (D2d8 Oct. 17, 2019)

Plaintiff in a land dispute case pleads three causes of action. Some of the facts (kind of tenuously) might implicate the anti-SLAPP statute. But the defendant doesn’t move. Then, well after the 60-day window under Code of Civil Procedure § 425.16(f) to file an anti-SLAPP motion has run, plaintiff amends the complaint to add two new claims based on different legal theories. They are, more or less, based on the same facts as were alleged in the first complaint. This time, defendant moves to strike. 

But the trial court denies the motion as untimely because the essential facts were alleged in the first complaint. The Court of Appeal reverses. This case is basically the converse of the Supreme Court’s decision in Newport Harbor II, which held that an amended complaint doesn’t restart the §425.16(f) clock for claims that were originally plead, only newly added claims. Here, the claims are new, but the facts are not. The court says that doesn’t make a difference because you can’t move on claims that aren’t yet plead. Since the “arising from” test depends on how the facts relate to the elements of the claims, it makes sense that the clock for such claims can’t run untill they are alleged. The Court declines to weigh in on the merits of the motion, other than to decide it was timely. 

Reversed.

Justice Wiley Strikes Again!

Dobbs v. City of L.A., No. B290509 (D2d8 Oct. 16, 2019).

There’s nothing about civil procedure in this opinion about design immunity, but I wanted to flag it as kind of awesome anyway.

It is only four pages long. You get the issue. You get the essential facts. You get the law. All very efficient. And then it exits the scene with a pearl of wisdom:

Tort law incorporates common sense. When one walks into a concrete pillar that is big and obvious, the fault is one’s own.

Affirmed.

Procedural Footfault Dooms Objector's Appellate Standing

Eck v. City of L.A., No. B289717 (D2d7 Oct. 15, 2019)

In Hernandez v. Restoration Hardware, the California Supreme Court held that a class action settlement objector cannot appeal the overruling of her objections unless she becomes a “party aggrieved” of record under Code of Civil Procedure § 902. As the Court explained, the two ways to do that are (1) to move to intervene before the judgment is final or (2) to file a § 663 motion to vacate the judgment. If she does either and her motion is denied, she can raise the issue on an appeal from the denial.

Objector here filed a motion to intervene, which was denied. And then she filed a § 663 motion, which was also denied. Problem for her is that while she filed a notice of appeal on the intervention motion, she didn’t file a second notice to appeal the denial of her post-judgment § 663 motion. Yet, she didn’t argue in her brief that intervention was wrongly denied.

Objector contends that just filing of a § 663 motion was sufficient to give her standing under § 902 to reach the merits of her objections, even in her intervention appeal. But that doesn’t make sense, and it isn’t supported by authority. 

You can’t appeal an order outside of your notice of appeal, although the notice is construed liberally. Here, Objector’s notice on the intervention was filed before her § 663 motion was denied, so it couldn’t have encompassed that order, however liberally construed.

So because Objector appealed only the trial court’s denial of her motion to intervene, the merits of the intervention motion posed a gating procedural issue. Objector had to convince the Court of Appeal that intervention was wrongly denied before it could reach the merits of her objection. And since she didn’t even try to do that, she lacked appellate standing.

Appeal dismissed.

Pick-Off Move Does Not Work

Timlick v. Nat’l Enter. Sys., Inc., No. A15423 (D1d3 Jun. 21 2019)

This is a class action over debt collection practices. The relevant statue provides for an opportunity to cure. Which defendant did as to the lead plaintiff. The principal question is whether once that happened, the trial court could appropriately dismiss the whole class action. 

The Court of Appeal holds it could not, under what is known as the “pick off” exception. The whole point of a class action—giving a large number of people relatively small amounts of relief—would be frustrated if a defendant could unilaterally resolve claims by a class rep by tendering the available relief while withholding the same relief from the rest of the class. At minimum, the class must be afforded an opportunity to amend and find a new rep. And even if that can’t happen, the named plaintiff can continue on as the rep if he or she can “continue to fairly represent the class in light of the individual relief offered by defendant.” And in any event, that’s an issue that needs to be decided in the class cert context. A defendant can’t just tender relief to the rep and then move to dismiss the whole case.

Reversed.

Fraudster Runs Into Bad Standard of Review

In re Alpha Media Resort Inv. Cases, No. A150541 (D1d3 Sept. 16, 2019)

This case arises out of a $170 million fraud scheme for which the Defendant was criminally convicted. Defendant participated sporadically in the case, and failed to show at his deposition or at trial. In coordinated litigation, Plaintiffs here won about $10.5 in total judgments. Defendant argues (1) that his case should have been dismissed under Code of Civil Procedure § 583.310’s five-year rule, and (2) somewhat orthogonally, that his case should have been stayed pending the criminal case against him.

There’s no doubt that the case took a long time to get to trial. But the case was complicated and the Defendant recalcitrant. The trial court found that, for a significant portion of time, it was “impracticable” to bring the case to trial under § 583.340(c), and thus the 5-year limit had not lapsed. Given that such a determination is within the sound discretion of the superior court, the Court of Appeal won’t disturb it, so long as it has some basis in fact and reason. It did so here.

So far as staying the case due to the criminal charges, that too is a matter on which the trial court has a lot of discretion. The trial court didn’t abuse its discretion in denying a stay here. Among other things, Defendant had plead guilty before trial in a deal that the government wouldn’t bring additional charges. So Defendant’s Fifth Amendment concerns about giving testimony in the civil trial were speculative at the least.

Affirmed.

What to Make of Ill Will

Hicks v. Richard, No. D074274 (D4d1 Sept. 17, 2019).

Defendant, who was chairman of an advisory board at a Catholic school wrote a letter to the Diocese, making various complaints about inappropriate behavior and poor performance by the school’s Principal. The Diocese ultimately fired the Principal, who then sued Defendant for defamation and IIED. Defendant filed an anti-SLAPP motion, which the trial court denied on the grounds that Principal came forward with evidence of the merit of his claims.

There’s not a lot of doubt that the claims arise from protected activity. Code of Civil Procedure § 425.16(e)(4), a catchall that addresses other conduct in furtherance of speech or petitioning in connection with an issue of public concern, has been interpreted to cover private forum speech on public issues. The issue here―the performance of a principal―was certainly important enough to a community of people to be a public issue. And, given that the complaint led to the Principal’s termination, it furthered the discussion of that issue, as now required in the test recently articulated by the Supreme Court in the FilmOn case.

So far as the merits go, the trial court erred when it found the claim was not barred by the Civil Code § 47(c) common interest privilege. Section 47(c) creates a qualified privilege for a communication made without malice to a person interested in the communication’s subject matter by another person also interested in the communication. The concept of interestedness is often a little fuzzy in application and it is not well pinned down in the case law. But it’s not much in dispute here because the case law is pretty clear that the members of a religious congregation share a common interest with its clergy and its broader church leadership.

“Malice” is tricky too. Some cases suggest that there are two kinds. For some annoying reason they are both called “actual malice.” There is literal malice, like hatred or ill will or an intent to do harm. And then there is New York Times type malice, as in a knowledge of falsity or recklessness about truth. There’s arguably circumstantial evidence of the former here―Defendant’s wife teaches at the school, and she seemingly is in a beef with the Principal. But the Court says that doesn’t matter, because there’s no evidence all that Defendant knew or didn’t care that his statements were false. Based on the cases cited in the opinion, ill will only matters when it impacts the defendant’s belief in truth or falsity, which wasn’t the case here. So the privilege should have applied, which merited granting the anti-SLAPP motion.

Reversed.

I’m not so sure the Court applied the right malice test here. In 2007, quoting an older case, the California Supreme Court said “[t]he malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” Taus v. Loftus, 40 Cal. 4th 683, 721 (2007) (emphasis on or original). That appears to state the test in the disjunctive. There more generally seems to be some confusion on the entire issue, arising from a long historical interaction and partial merger between the statutory standard under § 47(c) and the constitutional standard applicable to defamation claims. The issue is explored in a very long footnote in McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1539 n.18 (2013).