Wednesday, February 22, 2017

Hamilton v. Orange County Sheriff's Dept.

Hamilton v. Orange County Sheriff's Dept. (CA4/3 G051773 2/7/17) Civil Procedure/Employment Discrimination

This appeal arises from an uncontested summary judgment.  Plaintiff contends the court erred by not accepting the parties’ stipulation to continue the hearing on defendant’s summary judgment motion and the trial for 60 days.  The parties had agreed to these continuances to allow plaintiff to take depositions of the witnesses whose declarations had been submitted in support of defendant’s pending summary judgment motion.  Plaintiff had timely noticed these depositions but they could not go forward because defendant’s counsel was engaged in trial.  The court had earlier granted defendant’s ex parte motion to continue the trial so that defendant’s summary judgment motion could be heard.  Under these circumstances, we conclude the court abused its discretion by failing to accommodate counsel’s joint request for a further 60-day continuance.  Accordingly, we reverse the judgment.

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McLane Co. v. EEOC

McLane Co. v. EEOC (US 15-1248 Oral Argument Transcript 2/21/17) EEOC Subpoena/Standard of Review

Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.

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Tuesday, February 21, 2017

Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc.

For purposes of the tort of intentional interference with prospective economic advantage, the requirement that the plaintiff establish the existence of an economic relationship with a third party that contains the probability of future economic benefit to the plaintiff was not met where the plaintiff was a bidder for a public works contract and the third party was the public entity soliciting bids. Under rules unique to public works contracts--where the public entities retained broad discretion to reject all bids, bids were sealed, there were no postsubmission negotiations, and the public entities could give no preference to any bidder based on past dealings and were required to accept the lowest responsible bid--plaintiffs had at most a hope for a future benefit, not a probability of one.

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Tuesday, February 14, 2017

Daniel v. Wayans

Daniel v. Wayans (CA2/1 B261814 & B263950 2/9/17) Actor Racial Harassment/First Amendment Creative Process

On September 4, 2013, Pierre Daniel (Daniel), an actor, worked as an extra in a movie entitled, A Haunted House 2 (Open Road Films 2014).  Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie.  In August 2014, Daniel sued Wayans and others, alleging, inter alia, that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ”  In response, Wayans, pursuant to Code of Civil Procedure  section 425.16, moved to strike Daniel’s claims against him as a SLAPP suit (strategic lawsuit against public participation), arguing that all of Daniel’s claims arose from Wayans’s constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet.  The trial court agreed with Wayans and also found that Daniel had failed to establish the probability that he would prevail on any of his claims against Wayans.  As a result, the trial court entered judgment in favor of Wayans and awarded him his attorney fees.

On appeal, Daniel argues that the trial court erred with regard to its determination of the threshold issue in Wayans’s anti-SLAPP motion—that is, the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling and, as a result, did not involve the right of free speech or an issue of public interest.  In the alternative, Daniel contends that even if the conduct at issue implicated Wayans’s right to free speech, he presented sufficient evidence to the trial court to establish a probability of prevailing.  We find both of Daniel’s arguments to be unpersuasive.  Accordingly, we affirm the judgment.

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Wednesday, February 8, 2017

Vasserman v. Henry Mayo Newhall Memorial Hosp.

Vasserman v. Henry Mayo Newhall Memorial Hosp. (CA2/4 B267975 2/7/17) Arbitration

Plaintiff Tanya Vasserman sued her former employer, Henry Mayo Newhall Memorial Hospital (the Hospital) for violations of the California Labor Code and other statutes relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation.  The Hospital argued that the collective bargaining agreement relevant to Vasserman’s employment required her to arbitrate her claims. The trial court denied the Hospital’s motion to compel arbitration, and the Hospital appealed.

We affirm.  The dispute before us is not over Vasserman’s substantive rights, but instead the forum in which those rights are to be determined. If those rights are to be determined only by arbitration, a collective bargaining agreement must make that clear.  The collective bargaining agreement here required arbitration of claims arising under the agreement, but it did not include an explicitly stated, clear and unmistakable waiver of the right to a judicial forum for claims based on statute. The trial court therefore correctly denied the Hospital’s motion to compel arbitration.

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Monday, February 6, 2017

Wilson v. Cable News Network Inc.

Wilson v. Cable News Network Inc. (CA2/1 B264944 12/13/16) Anti-SLAPP

The trial court granted defendants’ anti-SLAPP motion (Code Civ. Proc., § 425.16) against a former employee alleging discrimination, retaliation, wrongful termination, and defamation.  Plaintiff contends the defendants’ conduct and statement did not arise from an act in furtherance of their right of free speech or to petition for redress of grievances, and were not in connection with an issue of public interest, and therefore fell outside the scope of the anti-SLAPP statute.  We agree and reverse.  This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights.  Defendants may have a legitimate defense but the merits of that defense should be resolved through the normal litigation process, with the benefit of discovery, and not at the initial phase of this action.

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Flores v. Nature's Best Distribution

Flores v. Nature's Best Distribution (CA4/3 G052410A, filed12/2/16, pub. ord. 12/27/16, reposted by court for correct format 12/28/16) Arbitration

Plaintiff Julie Flores filed a lawsuit against Nature’s Best Distribution, LLC, Nature’s Best, KeHe Distributors, Inc., and KeHe Distributors, LLC (collectively referred to as defendants), alleging several claims under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.).  Defendants filed a petition to compel arbitration based on evidence that plaintiff signed an agreement for alternative dispute resolution (the Agreement).  The trial court denied the petition.  Defendants contend the trial court erroneously concluded defendants failed to prove plaintiff agreed to arbitrate her claims and that the arbitration provision contained in the Agreement was unenforceable because it is unconscionable.


We affirm.  Defendants failed to prove plaintiff agreed to submit her claims to final and binding arbitration

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