McNair v. Superior Court, No. B275282 (D2d3 Dec. 23, 2016)
This case concerns the ability of a party who has already filed on peremptory strike under Code of Civil Procedure § 170.6 to file a new one after a successful interlocutory anti-SLAPP appeal. In a pleasingly brief and cogent opinion by Justice Aldrich, the Court of Appeal says no.
Showing posts with label interlocutory appeals. Show all posts
Showing posts with label interlocutory appeals. Show all posts
Thursday, December 29, 2016
Monday, December 19, 2016
No Interlocutory Appeals from WC ALJ Orders
Capital Builders Hardware, Inc. v. Workers' Compensation Appeal Bd., No. B271987 (D2d2 Nov. 16, 2016)
The court here holds that interlocutory orders of Worker’s Compensation ALJs aren’t appealable. They are not appealable to the Worker’s Comp. Appeal Board. And they are not appealable from there to the Court of Appeal. So the writ of review is vacated. In reaching this result, the court parts ways with Alvarez v. Workers’ Comp. Appeals Bd., 187, Cal. App. 4th 575 (2010), which suggests that at least some kinds of orders might be subject to interlocutory review.
Vacated.
The court here holds that interlocutory orders of Worker’s Compensation ALJs aren’t appealable. They are not appealable to the Worker’s Comp. Appeal Board. And they are not appealable from there to the Court of Appeal. So the writ of review is vacated. In reaching this result, the court parts ways with Alvarez v. Workers’ Comp. Appeals Bd., 187, Cal. App. 4th 575 (2010), which suggests that at least some kinds of orders might be subject to interlocutory review.
Vacated.
Saturday, October 8, 2016
She'll Have to Wait Too.
Sese v. Wells Fargo Bank, No. C074663 (D3 Aug 18, 2016)
A recently enacted statute addressing mortgage litigation permits the award of attorneys’ fees to a prevailing borrower. Te Homeowner here won a PI, and claims that she was entitled to an immediate interim fee award. The trial court denied the request and the Homeowner took an interlocutory appeal. But regardless of whether the Homeowner was right about the statute’s authorizing awards of interim fees, nothing in the Code makes the denial of such a request immediately appealable. Although Homeowner argued that the appellate jurisdiction statute—Code of Civil Procedure § 904.1—makes various kinds non-final orders immediately appealable, the order here isn’t one of them.
Appeal dismissed.
A recently enacted statute addressing mortgage litigation permits the award of attorneys’ fees to a prevailing borrower. Te Homeowner here won a PI, and claims that she was entitled to an immediate interim fee award. The trial court denied the request and the Homeowner took an interlocutory appeal. But regardless of whether the Homeowner was right about the statute’s authorizing awards of interim fees, nothing in the Code makes the denial of such a request immediately appealable. Although Homeowner argued that the appellate jurisdiction statute—Code of Civil Procedure § 904.1—makes various kinds non-final orders immediately appealable, the order here isn’t one of them.
Appeal dismissed.
Wednesday, October 28, 2015
Death Knell Permits Appeal of Denial of PAGA Representaive Status
Miranda v. Anderson Enters., No. A140328 (D1d5 Oct. 15, 2015)
Since the Supreme Court’s Iskanian decision permitted claims under the Labor Code Private Attorney General Act to skirt the class action waiver arbitration clauses that are otherwise decimating employment class action practice, PAGA has been at the forefront of employment litigation in California. In this case, the trial court, in a pre-Iskanian order, held that Plaintiff’s representative PAGA claims were subject to a class action waiver in her employment contract. There’s little question that the order won’t hold up under Iskanian. But can it be raised in an immediate interlocutory appeal?
Under the “death knell” doctrine, some orders denying class treatment of claims are immediately appealable, notwithstanding the fact that plaintiff could still pursue her own claims on an individual basis. In many cases, denying class treatment transforms the incentive structure for a case in ways that make it highly unlikely if not impossible to pursue individual claims to judgment. If that happens, a denial of class cert would effectively be shielded from review. Thus, since denying cert will practically terminate the whole case, courts often permit a direct appeal of that decision, notwithstanding the absence of a final judgment.
It’s an open question as to whether the death knell doctrine applies denial of representative treatment for PAGA claims. But the court here holds it does. There are various procedural differences between PAGA representative actions and class actions. Indeed, some of those distinctions—in particular, that the plaintiff is acting in a quasi qui tam capacity on the State’s behalf—are the basis of Iskanian. But there are also similarities. And when it comes to the death knell doctrine, the similarities matter more than the differences. In particular, the denial of representative status for PAGA claims alters the incentives to pursue small cases in more or less same way as denial of class cert does. So just like a decision denying cert or sending a case to non-class arbitration, a denial of the right to proceed with PAGA claims on a representative basis effectively rings the death knell on those claims too.
Reversed.
Since the Supreme Court’s Iskanian decision permitted claims under the Labor Code Private Attorney General Act to skirt the class action waiver arbitration clauses that are otherwise decimating employment class action practice, PAGA has been at the forefront of employment litigation in California. In this case, the trial court, in a pre-Iskanian order, held that Plaintiff’s representative PAGA claims were subject to a class action waiver in her employment contract. There’s little question that the order won’t hold up under Iskanian. But can it be raised in an immediate interlocutory appeal?
Under the “death knell” doctrine, some orders denying class treatment of claims are immediately appealable, notwithstanding the fact that plaintiff could still pursue her own claims on an individual basis. In many cases, denying class treatment transforms the incentive structure for a case in ways that make it highly unlikely if not impossible to pursue individual claims to judgment. If that happens, a denial of class cert would effectively be shielded from review. Thus, since denying cert will practically terminate the whole case, courts often permit a direct appeal of that decision, notwithstanding the absence of a final judgment.
It’s an open question as to whether the death knell doctrine applies denial of representative treatment for PAGA claims. But the court here holds it does. There are various procedural differences between PAGA representative actions and class actions. Indeed, some of those distinctions—in particular, that the plaintiff is acting in a quasi qui tam capacity on the State’s behalf—are the basis of Iskanian. But there are also similarities. And when it comes to the death knell doctrine, the similarities matter more than the differences. In particular, the denial of representative status for PAGA claims alters the incentives to pursue small cases in more or less same way as denial of class cert does. So just like a decision denying cert or sending a case to non-class arbitration, a denial of the right to proceed with PAGA claims on a representative basis effectively rings the death knell on those claims too.
Reversed.
Thursday, July 2, 2015
It's Like There Was a Contest to Pick the Most Awkward Neologism
West v. Arent Fox LLP, No. B255973 (D2d5, as modified Jun. 26, 2015)
A SLAPPback—yes, this ugly-looking half-capped term actually shows up in a statute—is an action for malicious prosecution brought against someone who previously prosecuted an action that was dismissed as a SLAPP under Code of Civil Procedure § 425.16. Because the Legislature decided it furthered the purpose of the anti-SLAPP protections to permit these kinds of suits, even though they themselves would invariably draw an anti-SLAPP motion, it passed § 425.18 to make it harder, but not impossible, to attack a SLAPPback with an anti-SLAPP motion.
So § 425.18(c) exempts a SLAPPback from some of the more procedurally onerous parts of § 425.16, such as the discovery stay, the timing provisions, and the shifting of attorney fees. In instances where the motion is denied or only partially granted, § 425.18(g) also replaces the immediate right to appeal under §§ 425.16(i) and 904.1(a)(13) with a more limited writ review that must be sought within twenty days. That rule applied here, because the trial the court granted an anti-SLAPP motion and struck claims that everyone agreed were SLAPPbacks, but did not dispose of the whole case. Since plaintiff did not timely seek a writ, but instead filed a notice of appeal after the twenty days had run purporting to claim appellate jurisdiction under §§ 425.16(i) and 904.1(a)(13), there’s no jurisdiction to hear this case.
Appeal dismissed.
A SLAPPback—yes, this ugly-looking half-capped term actually shows up in a statute—is an action for malicious prosecution brought against someone who previously prosecuted an action that was dismissed as a SLAPP under Code of Civil Procedure § 425.16. Because the Legislature decided it furthered the purpose of the anti-SLAPP protections to permit these kinds of suits, even though they themselves would invariably draw an anti-SLAPP motion, it passed § 425.18 to make it harder, but not impossible, to attack a SLAPPback with an anti-SLAPP motion.
So § 425.18(c) exempts a SLAPPback from some of the more procedurally onerous parts of § 425.16, such as the discovery stay, the timing provisions, and the shifting of attorney fees. In instances where the motion is denied or only partially granted, § 425.18(g) also replaces the immediate right to appeal under §§ 425.16(i) and 904.1(a)(13) with a more limited writ review that must be sought within twenty days. That rule applied here, because the trial the court granted an anti-SLAPP motion and struck claims that everyone agreed were SLAPPbacks, but did not dispose of the whole case. Since plaintiff did not timely seek a writ, but instead filed a notice of appeal after the twenty days had run purporting to claim appellate jurisdiction under §§ 425.16(i) and 904.1(a)(13), there’s no jurisdiction to hear this case.
Appeal dismissed.
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