Peremptory Challenges to a Judge: Use It Or Lose It

Neil BardackPosted by on Apr 23, 2019 in Appellate Practice

A motion to challenge a judge under Code of Civil Procedure section 170.6 has been called a “silver bullet” because it does not require proof of good cause; it only has to be timely filed. In Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, the Court of Appeal for the Fourth Appellate District resolved what it deemed an issue of first impression: when does the 15-day clock begin ticking to use the silver bullet in cases involving potential consolidation and coordination? The Court of Appeal held that the 15-day period to make a peremptory challenge to a judge assigned to a case for all purposes was triggered when defendants opposed consolidation of their action with other cases arising from the same fraudulent conduct. (See Code of Civil Procedure section 403 and California Rules of Court, rule 3.500(b), (c) & (d).) As a result, their peremptory challenge was untimely.

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Arbitration Clauses, What’s in Yours?

Neil BardackPosted by on Apr 25, 2018 in Appellate Practice

The recent decision of the California Court of Appeal, Second District in  Saheli v. White Memorial Medical Center (2018) 21 Cal.App.5th 308, proves again the point that what is stated in your contractual arbitration clause matters. While it may seem axiomatic that words matter, in reality business law scribes generally spend less time on crafting arbitration clauses than the business terms of an agreement.

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Short-lived Victories With Unintended Results: the Interim Adverse Judgment Rule

Neil BardackPosted by on Aug 30, 2017 in Appellate Practice

Winning on appeal can sometimes spawn further litigation, including the launching of a malicious prosecution action. Indeed, if your client has prevailed in defeating a Uniform Trade Secrets Act (“UTSA”) case, been awarded attorney fees because the trial court found that action was brought in bad faith by the former employer, and the trial court’s decision upheld on appeal, malicious prosecution jumps out as the next logical step, right?

Maybe not. According to the California Supreme Court’s recent decision in Parrish v. Latham & Watkins, 2017 DJDAR 7724 (8/10/17), it all depends on whether your client (the former employee) brought a motion for summary judgment (or other ruling on the merits but not on technical or procedural grounds) which the former employer defeated on the merits (made a minimal showing of issues of fact requiring trial). In Parrish, a former employer sued former employees for misappropriation of trade secrets under the UTSA. After defeating the employees’ motion for summary judgment on flimsy evidence but albeit arguably meritorious, the employer lost a full evidentiary trial because the employer was shown to have no factual basis for bringing the action and did so for anti-competitive reasons. The former employees obtained substantial attorney’s fees on the grounds of bad faith as defined in the UTSA. Then, of course, they filed a malicious prosecution action against the employer’s lawyers. But that action was dismissed by way of an anti-SLAPP motion.

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High Court Confirms Sweeping Scope of Federal Arbitration Act

Neil BardackPosted by on Jun 28, 2017 in Appellate Practice

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.)

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