The United States Supreme Court recently ruled in Kindred Nursing Centers v. Clark that a Kentucky Supreme Court holding barring attorneys-in-fact from signing arbitration agreements on behalf of their principals because it infringed on their principal’s constitutional right to a trial by jury, was pre-empted by the Federal Arbitration Act (FAA). What is remarkable about the opinion authored by Justice Elena Kagan, is that it puts virtually the entire court (save for Justice Clarence Thomas who dissented and newly appointed Justice Neil Gorsuch who did not participate) on the same page in support of arbitration in a consumer action, here a health care case. Even AT & T Mobility LLC v. Concepcion (Concepcion), heavily relied upon in this decision, was decided on a 5-4 split with Justices Ginsburg, Breyer, Sotomayor and Kagan dissenting. Thus, Kindred Nursing Centers demonstrates how a majority of the Justices now broadly accepts the FAA’s pre-emption of “any state rule discriminating on its face against arbitration.” (Justice Thomas’ dissent was based solely on his belief that the FAA does not apply to state court actions.)
A decision from the Sixth District Court of Appeal is worth a look. (Heimlich v. Shivji (May 31, 2017) 2017 WL 2351269). The opinion rests on the premise, recognized in at least one prominent practice guide as well, that Code of Civil Procedure section 998(b)(2) prevents a party from breathing a word about a 998 offer until after the arbitrator renders an award. Those perusing the statute have probably noticed the language, and perhaps wondered about its scope:
If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration. (Emphasis added.)
Eventually, it happens to us all. Somehow or other, we end up in court facing a vexatious litigant—a person who, acting in pro per, repeatedly pursues meritless law suits or frivolous pleadings, motions, and discovery. Ordinarily, this happens when a vexatious litigant sues, and we attorneys spend incredible (if unavoidable) amounts of time and money trying to extricate our clients from the fray.
California’s statutes, however, exist to reduce this risk to the unwary public, creating procedural obstacles to the filing of meritless litigation by individuals found to be vexatious litigants. (See Code Civ. Proc., §§ 391-391.7.) Once a person has been declared a vexatious litigant, he or she cannot file a new lawsuit in pro per in a California court without getting prior approval from the presiding judge or justice. (See Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169-1170.) The same pre-filing requirements apply when a vexatious litigant attempts to appeal in pro per from an adverse judgment in a case in which he or she was the plaintiff. (See Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32, 41.)
In federal court, partial dismissals present plaintiffs with a difficult choice. They can seek an immediate appeal or continue litigating their live claims. But they cannot do both, though they are often motivated to do so. And defendants should be prepared to hold plaintiffs to that choice—as the Ninth Circuit indicated it was willing to do in comments during a recent oral argument.
If you handle appeals, then you’ve probably heard yourself mutter at least once, “What a frivolous appeal!” It’s bound to happen now and then, given the zealous advocacy that comprises an essential ingredient in any litigator’s DNA. But while some appeals are losers, not every loser appeal is frivolous. Where’s the dividing line?
The California Supreme Court finds frivolity when: (1) an appeal is prosecuted for an improper motive (to harass or delay); or (2) any reasonable attorney would agree that the appeal is totally and completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) While the Flaherty standard has been around for a long time and is stated in the disjunctive, more recent decisions demonstrate that on the rare occasion when appeals are determined to be frivolous, evidence of improper motive and complete lack of merit are usually both present.