Friday, May 29, 2020

Wrong Expert, No Detail, No Fact Issue.

Lowrey v. Kindred Healthcare Operating, Inc., No. A153421A (D1d4 May 18, 2020)

Trial court granted a defense SJ in a wrongful death and medmal case against a nursing home. It found there wasn’t evidence that anything the home did caused or worsened the effects of a stroke suffered by a resident. Resident tried to create a fact issue by putting in a declaration from a doctor. But the doctor was a physical therapist, not a neurologist, and the declaration was barebones and conclusory. 


The Court of Appeal finds that in the absence of foundational evidence about how the doctor was qualified to testify about stroke causation or any detail about how he drew the conclusions he did, the declaration was properly excluded from evidence under the Sargon standard.

Affirmed.

Wednesday, May 27, 2020

Party Can't Appeal Sealing Order

Six4three v. Facebook, Inc., No. A156095 (May 18, 2020)

Plaintiff in an anti-SLAPP fight filed a declaration in support of its opposition that included hundreds of exhibits that had been designated as confidential under a protective order. After the motion was resolved, the trial court struck from the record a whole bunch of exhibits that were not germane to the motion. It also ordered parts of some exhibits sealed. Plaintiff appeals.
 

The Court of Appeal dismisses the appeal. The striking order is not an appealable order. Any appeal to it would have to be taken up in connection with an appeal of the anti-SLAPP ruling or from a final judgment. And so far as sealing order goes, Plaintiff isn’t aggrieved. Sealing prevents the general public from accessing the documents. But it has no effect on Plaintiff’s rights—plaintiff has copies of the documents already. Since Code of Civil Procedure § 902 limits appeals to a “party aggrieved,” Plaintiff lacks standing to appeal the sealing order.
 

Appeal dismissed.

Friday, May 8, 2020

Prima Facie Proof of a Negative

Gruber v. Gruber, No. B294617 (D2d2 Apr. 30, 2020)

Pretty basic appeal of an order denying an anti-SLAPP motion on a malicious prosecution claim because plaintiff came forward with enough evidence of lack of probable cause to defeat the motion. In affirming, the Court of Appeal has an interesting discussion of the relationship between the prima facie standard in the second element of the anti-SLAPP analysis and the lack of probable cause issue for malicious prosecution. 


Framed in the context of the test, the question is how does a plaintiff come forward with enough evidence that, if credited as true, would permit a reasonable jury to find that no reasonable attorney would have thought the prior claim had any merit? Well here, the underlying lawsuit was for fraud. In opposing the motion, Plaintiff came forward with evidence showing that the defendants (plaintiffs in the prior case) knew that the statement they sued over was actually true. And that, my friends, is enough to beat an anti-SLAPP motion, even if the evidence is hotly disputed.


Affirmed.

Wednesday, May 6, 2020

That’s What Writs Are For


Most of this opinion concerns whether Lyft can be held liable under respondeat superior when one of its driver was driving a car that he obtained in a rental facilitated by Lyft but who was driving for a personal purpose at the time of the accident. The court holds it cannot and affirms a summary judgment for Lyft on that ground. Ok.

But the plaintiff also complains that the trial court erred in limiting some of the issues he could inquire into during a PMQ depo of Lyft. The thing is, however, when you complain about a discovery ruling after a final judgment (as opposed to immediately taking a writ) you need to show that, but for the ruling, there’s a reasonable probably the case would have come out different. Here, the excluded testimony had absolutely nothing to do with the respondeat superior issue that ended plaintiff’s case. So right or wrong, the discovery ruling can’t be reversible error.


Affirmed.

Tuesday, May 5, 2020

You Are (Not) (the Government)

Patel v. Chavez, No. B291695 (D2d1 Apr. 30, 2020)

Plaintiff brought a federal civil rights claim under 42 U.S.C. § 1983 and a petition for writ of administrative mandate against former employee for giving false testimony before the Labor Commissioner. 


That doesn’t really make any damn sense, for any number of reasons. (
Plaintiff also sued the Commissioner, who got out on demurrer.) But it does provide a basis for an anti-SLAPP motion. Because giving testimony, true or false, in an administrative proceeding is most certainly protected activity under Code of Civil Procedure § 425.16(e)(1). 

The question, however, is whether the anti-SLAPP statute can apply to a purely federal law claim. As with most issues that implicate the Erie doctrine, it’s confusing. 


The Ninth Circuit has held that, as a matter of California law, the anti-SLAPP statute creates a substantive immunity from suit. Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003). But not without controversy. See Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (9th Cir. 2016) (Kozinski, J., concurring) (calling for en banc review of Batzel); Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 835 (9th Cir. 2018) (Gould, J., concurring) (same). Thus, an anti-SLAPP motion can be brought in federal courts, at least to the extent the procedures in § 425.16 don’t conflict with on-point federal rules of civil procedure. Cf. Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (holding that the discovery stay in § 425.16(g) conflicts with Fed. R. Civ. P. 56(d)s right to obtain targeted discovery to oppose summary judgment). But the motion can only apply to California state law claims. Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (“[A] federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims[.]”).
a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims,

Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)

a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims,

Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)

On the other hand, California state courts—including the Supreme Court—view the anti-SLAPP remedy as “a procedural device for screening out meritless claims[.]” Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 737 (2003).* As such, a federal-law cause of action filed in state court can be attacked with an anti-SLAPP motion unless there’s some federal law reason such as obstacle preemption that requires it not to apply.


And as the court here explains, nothing in the anti-SLAPP regime stands as a obstacle to litigating meritorious § 1983 claims in California state court. In particular, the court holds that the discovery stay in § 425.16(g)—which can be lifted on good cause—and the attorney fee-award provisions in §425.16(c) do not unduly burden a plaintiff’s ability so litigate a §1983 claim.


Moving onto the anti-SLAPP analysis, as I said, “arising from” is basically self-evident. And so far as the minimal merit prong goes, both § 1983 and mandamus apply to state actors. Being a witness in a Labor Commission proceeding does not make you the government. 


Affirmed.


*The Ninth Circuit case that found the anti-SLAPP statute created a “substantive immunity” was decided in 2003 and relied almost entirely on legislative history to make that determination. See Batzel, 333 F.3d at 1025. But it did, at least implicitly, seem to recognize that whether the statute crated a procedural or substantive rule was a question of, or at least significantly informed by, California state law. 


If we accept that premise, it’s hard to understand why the anyone should view Batzel as good law of the circuit, absent a disapproval en banc. The California Supreme Court has literally described the anti-SLAPP scheme as “procedural” no fewer than five times since Batzel was decided. See Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 4 Cal. 5th 637, 645 (2018); Rusheen v. Cohen, 37 Cal. 4th 1048, 1056 (2006); Flatley v. Mauro, 39 Cal. 4th 299, 312 (2006); Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 280 (2006); Kibler v. N. Inyo Cty. Local Hosp. Dist., 39 Cal. 4th 192, 202 (2006); Jarrow, 31 Cal. 4th at 737. And many other cases implicitly recognize the procedural nature of the motion, even if they don
’t say so quite so explicitly. See, e.g., Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 883 (2019).

So there’s no need to go en banc. Since the California Supreme Court binds everyone on questions of California law, this is a pure Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc) situation, where the panel decision can be deemed so undermined by controlling, higher, precedent, that it doesn’t need to be followed, even in the absence of an explicit reversal en banc or by the U.S Supreme Court.


FWIW, now that we’ve fully grocked out on law of the circuit, the second verse of this 32 year-old SoCal classic does really feel kind of right for the time.

Monday, May 4, 2020

Alter Ego Gotcha Fails on Appeal

Lopez v. Escamilla, No. B300439 (D2d6 May 4, 2020)

Plaintiff got a money judgment against an entity that turns out to have been severely undercapitalized. She wants to add the company’s owner as an alter ego judgment debtor. She does so by filing a new action. The new defendant, however, argued that was improper. He claimed by the creditor was required bring a motion to add an alter ego defendant under Code of Civil Procedure § 187 in the case in which the judgment was rendered. The trial court agreed and dismissed the case.

The Court of Appeal disagrees. Citing the maxim that the law values substance over form, Civil Code § 3528, the court holds that a § 187 motion is sufficient, not necessary. The alleged alter ego can also be sued in a separate action. Moreover, because the purpose of an alter ego amendment is to substitute the true debtor and not to re-litigate the claim, the applicable statute of limitations is the ten-year limit on enforcing a judgment, not the statute of limitations that governed the underlying liability. 

Reversed.


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...