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.

SJ Affirmed, but Likely No Costs

Roman v. BRE Properties, No. B246841 (D2d7 Jun. 17, 2015)

It’s probably not too surprising that in order to bring a claim for disability discrimination, Plaintiff needs to establish that he is disabled within the meaning of the statute. When, in this case, Defendant served discovery asking for evidence of Plaintiffs’ disability, Plaintiff didn’t respond. That nonresponse was sufficient to meet Defendant’s burden when moving for summary judgment. And then when Plaintiff’s opposition offered nothing but his wife’s conclusory statement that she had previously told Defendant he “was disabled,” that wasn’t enough to create a disputed fact issue. So SJ was properly granted.

But the trial court erroneously awarded costs to defendants because it didn’t apply the heightened Christiansburg standard that the Supreme Court’s recent decision in Williams held applies to cost awards in FEHA cases. So the award was reversed and remanded for the trial court to decide whether the Christiansburg standard was met, and if not, what costs could be allocated entirely to claims other than those brought under the FEHA, for which costs could be awarded under the ordinary prevailing party standard under Code of Civil Procedure § 1032.

Reversed and remanded in part.

Tuesday, June 30, 2015

The J-Word

Katzenstein v. Chabad of Poway, No. D066340 (D4d1 Jun. 12, 2015)

The trial court in this case struck Defendant’s counterclaim in an unsigned minute order because Defendant failed to comply with some procedures particular to probate court. Defendant appealed. But there’s no appellate jurisdiction because the order striking the claims wasn’t appealable. Under Although
§ 581d of the Code of Civil Procedure, a signed order that dismisses an action because a motion to strike or demurrer has is granted can be appealed as a final judgment, even if it doesnt use the j-word. But an unsigned minute order doesn’t cut it. Indeed, in this case, it appears that the trial court didn’t even intend to strike with prejudice, but just to require Defendant to resubmit the claims in accord with Probate court procedure. So an appeal was premature.

Appeal dismissed.

Friday, June 19, 2015

Too Clever a Joinder

David v. Medtronic, No. B254914 (D2d8, as modified Jun. 26, 2015)

It’s my practice not to comment on cases where Kirkland & Ellis represents a party. So I’ll just note that this is an interesting opinion regarding what happens when a nominal defendant is joined for the purpose of keeping forum stuck in California state court. And say congrats to my colleagues . . . .

Thursday, June 18, 2015

Why Not Wait?

Khalatian v. Prime Time Shuttle Inc., No. B255945 (D2d8 Jun. 9, 2015)

In an appeal of the denial of a motion to compel arbitration in a wage-and-hour misclassification case, the court of appeal uncontroversially finds that plaintiff’s job as an airport shuttle driver involved interstate commerce and thus that the FAA preempted the anti-arbitration provisions in Labor Code § 299.

PAGA Takes Down Another Arbitration Clause

Williams v. Superior Court, No. B261007 (D2d4 Jun. 9, 2015)

Plaintiff in this case filed a single count action over the Labor Code Private Attorney General Act, seeking damages for Labor Code violations in both an individual and representative capacity. Defendant moved to compel arbitration, arguing that plaintiff had contractually waived the right to bring PAGA claims, and that, in any event the Labor Code violations that were the factual predicates to his PAGA claims we subject to an arbitration clause in his employment agreement. The trial court held the claims were unwaivable, but agreed that the underlying violations, when applied to the plaintiff individually, could be severed out and sent to arbitration, with the rest of the case stayed until that gets resolved.