Sunday, April 12, 2015

SLAPP Madness

Trilogy at Glen Ivy Maint. Assoc. v. Shea Homes, Inc., No D066483 (D4d1 Mar. 19, 2015)

This is a dispute between an HOA and a developer about who was entitled to some license payments from a cable company that used a planned community’s common infrastructure to distribute its services. The contract was signed by the developer, but the services were applied after the control of the common areas passed to the HOA, and the developer tried to keep the cash. The HOA sued the developer for breach of fiduciary duty for diverting the revenues of under the contract to its own use.

As happens far too often these days, the developer filed an anti-SLAPP motion. It made a mostly inscrutable argument that the case didn’t really arise from the HOA’s claim that it failed to fork over the money. Instead, the case purportedly arose from the developer’s denial of an allegation in its answer to an earlier version of the complaint in this very case. Fortunately, neither the trial court nor the court of appeal buy into the BS. 


The Evidence Code as Suicide Pact

Amis v. Greenberg Traurig, No. B248447 (D2d3 Mar. 18, 2015)

This is a malpractice case where attorneys allegedly gave bad advice to their client. They advised him to accept personal liability on a settlement with his corporation, even though it would be nearly impossible to prove personal liability at trial. When that decision ultimately resulted in significant losses to the client, client sued for malpractice. Client’s problem is that allegedly bad advice was given during a mediation, and the mediation privilege in Evidence Code § 1119 prohibits use of pretty much anything done or said in connection with a mediation from ever being used in a future litigation. So when it came time for summary judgment, plaintiff didn’t have any admissible evidence to prove his claim.

You might be thinking that it doesnt really make any sense to apply the mediation privilege to malpractice claims based on bad legal advice in connection with a mediation. Especially when the attorney-client communications are made outside the presence of the other participants in the mediation. Why would the mediation privilege protect that? The Supreme Court basically agrees that its senseless. See Cassel v. Superior Court, 51 Cal. 4th 113, 122 (2011). But taken literally, the Evidence Code unambiguously encompasses the advice. Given California’s strong rule against the judicial creation of policy based exceptions to statutory privileges, not making sense is not really a valid reason to enforce the privilege as written. The policy implications arising from the overbreadth of the privilege are the Legislature’s problem. That’s what the court said in Cassel, and the court here follows the rule.


Deny This!

City of Glendale v. Marcus Cable Assocs., No B249094 (D2d5 Mar. 18, 2015)

In a dispute with a cable provider, the City of Glendale denied an RFA on an issue that it ultimately lost at trial. After finding that Glendale lacked a reasonable basis for the denial, the trial court awarded the cable company the costs and fees associated with proving that fact under Code of Civil Procedure § 2033.420.

The court here holds at a federal telecommunications law that limits the available relief in such cases to injunctive and declaratory relief precluded recovery of a monetary award under § 2033.420. The crux of the court’s analysis is that a § 2033.420 award isn’t really a discovery sanction, but is instead similar to a statutory award of costs and attorneys’ fees. Because federal cases had held that the federal statute barred recovery of these kinds of items, the court of appeal bars a § 2033.420 recovery in this case.


Friday, April 10, 2015

The One True Judgment

Baker v. Castaldi, No F067687 (D5 Mar. 16, 2015)

This appeal follows for a really confusing multi-stage trial that resulted in series of “judgments” being entered. Apparently, the judgment being appealed foresees the trial court holding a further trial on punitive damages.

That isn’t appealable even if the trial court erroneously called it a judgment.

Appeal dismissed.

Arb Agreement in Employee Handbook Prevails

Serafin v. Balco Props. Ltd., No. A141358 (D1d4 Mar. 16, 2015)

After an employee lost on the merits in an arbitration, she challenges the enforceability of an arbitration agreement contained in her employer’s employee handbook.  The court here affirms.

Thursday, April 9, 2015

But Causes of Action Don't Arise from Defenses

DeCambre v. Rady Children’s Hospital-San Diego, No. D063462 (D4d1, as modified Apr. 2, 2015)

Plaintiff is a doctor who got fired. She says it was racial harassment, discrimination, and retaliation. The hospital says it was the culmination of its peer review process. The hospital brought an anti-SLAPP motion, arguing that the peer review process is protected activity, and the trial court granted it. That was wrong. In the anti-SLAPP analysis, plaintiff’s claims “arise from” her own claims. Here, that was the harassment, discrimination, and retaliation, which are not protected activity. The peer review process, which unquestionably protected is, is only the hospital’s defense.  

Wednesday, April 8, 2015

Anti-SLAPP Victor Can Collect Fees for Collecting

York v. Strong, No. G049778 (D4d3 Mar. 10, 2014)

Plaintiff who prevailed on an anti-SLAPP motion in a prior case won an attorneys' fee award. She then incurred more fees in collecting on it.  Under Code of Civil Procedure § 685.040, fees incurred in collection are awardable if the underlying judgment includes an award of fees when they are included as costs.  

The statute specifically references that that is the case when fees are awarded under § 1033.5(a)(10)(A), which permits an award of fees as costs when permitted by contract. But fees awarded in an anti-SLAPP victory are awarded as costs under § 1033.5(a)(10)(B) or (C)—as authorized by statute or law.  But the reference to § 1033.5(a)(10)(A) was not intended to limit an award of fees as costs on collection. It was specifically added to legislatively reverse an earlier case holding that a judgment that included an award of fees based on a contract—awardable under § 1033.5(a)(10)(A)—did not merit an award of fees incurred in collection. In any event, the Supreme Court essentially already decided this issue in Ketchum v. Moses, 24 Cal. 4th 1122, 1141 n.6 (2001) so there was no reason to go the other way.