Some Interesting Ones I Missed.

So a year ago when the world shut down, I briefly thought that the one upside of the whole mess was that I could catch up on some reading, work through my backlog of civil procedure cases to blog on, and finish up some other professional writing projects unrelated to my day to day practice. None of that happened. As seems to be the share experience of many of my colleagues, I’ve been busier with billable work than almost ever. And with that on top of suddenly being the vice-principal of a very tiny elementary school, I am deeply, deeply behind.

With the one year of the lockdown hitting last week, I am coming to grips with the fact that I am never going to catch up. So in the interest of clearing the decks of a bunch of half written stuff I didn’t post on time, here are some interesting cases that I missed in the past year.

Vazquez v. Jan-Pro Franchising Int’l, No. S258171 (Cal. Jan 14, 2021). The Supreme Court found that its groundbreaking Dynamex ruling, which significantly altered the landscape of misclassification in employment cases, was retroactive to all cases not final as to the date of that decision. The Chief Justice, writing for the full court, primarily reasoned that although Dynamex resolved a first impression issue, it did not reverse or alter some already existing standard that would upset reasonable expectations.  

Reyes v. Kruger, No. H044661 (D6 Sept. 25, 2020). As some other cases decided over the last year have made clear, the time to appeal the grant or denial of an anti-SLAPP motion runs from the date of the order. You can’t and shouldn’t wait for a judgment, which does not restart the clock. And although filing a new trial motion challenging an anti-SLAPP dismissal could tool the time to appeal under Rule of Court 8.108, that only applies if the new trial motion itself was timely, which requires a notice of intention to move to be filed within 15 days of notice of the entry of the order. Because none of that happened here, the appeal gets dismissed.

 
Aerotek v. Johnson Grp. Staffing Co, Inc., No. C078435 (D3 Sept. 15, 2020). The Court of Appeal holds that when attorneys’ fees are awarded under the California Uniform Trade Secrets Act, the attorney, not the client, owns the fees, unless the parties’ fee agreement specifically provides otherwise.

Mejia v. DACM, Inc., No. G058112 (D4d3 Sept. 15, 2020) In 2017’s McGill decision, the California Supreme Court held that an arbitration clause that prohibited the plaintiff from seeking public injunctive relief—a form of relief available under the UCL and FAL, where a court can bar a practice beyond its effect on an individual plaintiff—is unenforceable. This case involves the inevitable next step—an arbitration clause that tries to get around that limit by selecting the law of some other state. Here, it’s Utah. But that doesn’t fly under California’s choice of law rules applicable to contractual choices of law, commonly called the Nedlloyd test. The first step of the test was met. There were rational bases for the parties to pick Utah law. But upholding the selection would be an end-around the limits provided by McGill. And since, as the Court sees it, McGill sets out a fundamental policy of the state, the selection won’t stand up under the second element of the Nedlloyd test. 

Marshall v. Webster, No. C088240 (D3 Sept. 4, 2020)  As I just mentioned, this is one of the cases holding that, because an order granting or denying an anti-SLAPP motion is directly appealable, the date to file a notice of appeal runs from the date on which the court serves the order or from when a party serves notice of entry of the order. Even if, in the case of an anti-SLAPP motion that kills a whole case, a final judgment is later entered.

Rowan v. Kirkpatrick, A160568 (D1d3 Sept. 4, 2020) When the state, including the state courts, shut down in March 2020, various courts across the state entered orders extending time. Some just afforded tolling. Others deemed that periods of time were “holidays” for purposes of computing deadlines to undertake various acts. Here, plaintiff got hit with a vexatious litigant order in pre COVID time. His clock to appeal started on the mailing of the notice of that order. It then got tolled under a Judicial Council order. But the tolling ran out while the superior court was still on deemed-holiday. Which restarted the clock, which proceeded to run during Napa County Superior’s “deemed holiday” period. Which, pursuant Code of Civil Procedure § 12, meant that his Notice of Appeal was due the next non-holiday day. And since he filed after that, his appeal was untimely.

Simmons v. Bauer Med. Grp., No. B296220 (D4d4 Jun. 19, 2020) Back when the world had time to think about frivolous things, there were a number of conspiracy theories circulating about the disappearance of 80s-era exercise guru Richard Simmons. Simmons wound up suing a tabloid and a PI it hired to investigate his whereabouts for invasion of his privacy after they put a tracking device on his caretaker’s car. The Court of Appeal affirmed the denial of an anti-SLAPP motion, finding that using an illegal tracking device is not “conduct in furtherance of” of protected activity under § 425.16(e)(4). This case was calling out for an application of the (e)(4) analysis in Wilson but the Court never really gets there. Instead, it seems to have relied on a Flatley-lite argument that allegedly illegal acts can’t be in forbearance of free speech, which is very pre-Wilson way to analyze the issue. But the Court of Appeal granted a publication request and the defendants never sought review.

Insalaco v. Hope Lutheran Church of W. Contra Costa Cnty, No. A156562 (D1d2 May 27, 2020) Under Code of Civil Procedure § 437c(h), a party opposing summary judgment can get more time to do so if it files a declaration setting out what additional discovery is needed to oppose the motion. This case discusses how the practicalities of how that rule works. In particular, it addresses the nature of the showing that must be made, and blesses the idea that it can be made in an ex parte application seeking a continuance of the SJ hearing.

Nat’l Biweekly Admin., Inc. v. Superior Court, No. S250047 (Cal. Apr. 30, 2020). Back in 2018, the Court of Appeal decided that a UCL or FAL claim in which a prosecutor seeks civil monetary penalties was subject to a jury trial right under the state constitution. The opinion was, admittedly, an outlier. But as I mentioned back then, the logic of it was pretty solid. The Supreme Court, however, ultimately didn’t agree with me. The rub of the Court’s analysis seems to be that because, like the standard for violations, UCL and FAL penalties are assessed in an flexible and one-case-at-a-time—some would say arbitrary—way, they need to be meted out by a judge, not a jury. Of course, California state courts’ decades-long reluctance to provide any meaningful non-ad hoc guidance on what counts as each “violation” under these provisions gives rise to serious notice problems that are deeply problematic from a due process perspective. But two wrongs don’t make a right. To me, fines are fines, even when the standards applied to impose them are shrouded in mystery.

Rall v. Tribune 365, LLC, No. B284566 (D2d8 Dec. 18, 2019) As I predicted in 2019, this appeal of an anti-SLAPP motion in a media defendant wrongful termination case got granted and held in light of the Supreme Court’s decision in Wilson. It got remanded back to the 2/8 for reconsideration. The Court reconsiders in light of Wilson and gets to the same result. Then in April 2020, the Supreme Court subsequently granted a depulbication request.