Category: Uncategorized

By: Sarah Murphy

“SLAPP” stands for “Strategic Lawsuit Against Public Participation” and its primary function is to “prevent citizens from exercising their political rights or punishing those who have done so”.[1] The result is that SLAPP suits often pose as civil claims such as “defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits”.[2]

Achieving resolution in an Anti-SLAPP matter involves two factors: 1) the defendant must establish that the challenged claim arises from a protected activity outlined in CCP § 425.16, and once established, 2) the burden then shifts to the plaintiff to establish the merit of their claim by showing a probability of success.  In other words, an Anti-SLAPP motion is like a summary judgment motion, but ‘in reverse,’ as the defendants needs to defeat the plaintiff’s pleading by showing it is legally or factually meritless.

Recently, Ad Astra associate Wendy Hillger secured a $45,000 fee award for our client. The matter involved plaintiff American Cannabis Partners claiming unfair competition against Brown’s Lumber Company, a cannabis business in Trinity County, CA owned in part by Trinity County Supervisor Jeremy Brown. The plaintiff alleged that Supervisor Brown used his influence with the Board of Supervisors to block American Cannabis Partners from receiving any licenses to operate cannabis businesses in Trinity County, and that Supervisor Brown’s private business is liable for Supervisor Brown’s activities.

Ad Astra filed a demurrer followed by an Anti-SLAPP motion. Successful Anti-SLAPP motions dismiss the claims that are based on a litigant’s participation in a public process. Here, the court dismissed the plaintiff’s claim in its entirety on the basis that the plaintiff could not make a claim for unfair competition on the facts presented.

Ad Astra filed a fees motion, arguing that even though the case was dismissed on demurrer, the Anti-SLAPP motion was still pending and fully briefed, and the dismissal does not moot our entitlement to fees under the Anti-SLAPP statute. The court agreed with Ad Astra that Brown’s Lumber would have prevailed on the Anti-SLAPP motion and awarded our client with $45,000 in fees. We are thrilled with the result!

[1] Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 642 (Wollersheim)

[2] Wilcox, supra, 27 Cal.App.4th at pp.816-817

 

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Katy Young

The answer to that question can determine whether you get proper representation or not. Most people have no understanding of how to choose a lawyer to represent them. Common ways to find an attorney are to ask friends or family for recommendations, use a lawyer referral service, or good old Google. Asking for a referral to an attorney can certainly help get you on the right track, but what do you do if you don’t know anyone who knows anyone? Lawyer referral services through local bar associations can be clunky to deal with, so most people search the internet. But what if the internet doesn’t know the answer?

Yes, believe it or not, sometimes the internet does not have the answer. That is especially true when you are experiencing a dispute. If you are having a business dispute, you might Google “business law” and your geographic area. If a real estate dispute, you might Google “real estate lawyer” plus your city. By the same token, many people experiencing employment disputes Google for “employment law” or “employment lawyer.” While these all seem like reasonable search terms, the problem is that Google doesn’t know the difference between a lawyer who handles disputes and a lawyer who does not. To get a more accurate result, you would have to search “business litigation” or “real estate litigator” to get to the kind of lawyer that handles disputes. The other kind of lawyer is a transactional lawyer, one who does not go into a courtroom, but Google results assume that’s what you mean when you search “business law.” Most people are not familiar with the differences between litigators and transactional attorneys. Google barely does and yields some imperfect results.

So the first step in choosing the right lawyer is determining what type of lawyer you need. Do you need a lawyer who handles disputes and goes to court (a litigator) or one who handles non-dispute work such as transactions, contract drafting, and regulatory advising (a transactional attorney)? Once you know, then you can refine your Google search. You will be able to search “business litigation attorney san Francisco” for example, and get to us. If you just search “business law San Francisco” you get a swath of results that include the kind of lawyer you don’t need. As a firm, we do not expend any resources on Google adwords because Google is so bad at this distinction. Any time we dedicated resources to search engine optimization to make it easier for clients to find us, we get inundated with phone calls from people who want us to draft a contract or advise them on regulations, which is not what we do. Ad Astra is solely dedicated to dispute work, we are ONLY litigators. We appreciate the ability to refer out that potential transactional business to our friends, thereby helping the potential client get to a lawyer that will be a better fit for them, but we stay in our lane…and we’re damn good at it, too.

Now that you know more than Google about the difference between types of lawyers, we hope you will find the right one for you. If it’s a fighter you need, give us a call. Otherwise, we’ll refer you to a friend.

Author: Katy M. Young

Nearly every entrepreneur has fretted over selecting a name for her business. Once selected, enormous amounts of resources are dedicated to building a brand behind that carefully selected name. Some savvy business owners even go so far as to obtain trademark protection for the name of their business and the goods or services they offer. But what happens when even the most conscientious entrepreneur is faced with unscrupulous competition in the marketplace in the form of a similar business that insists upon using your name? Trademark lawyers can add another real risk to the parade of horribles that can occur when there is marketplace confusion over a business name: wrongfully being named in a lawsuit. Behold the story of mistaken identity, and how Ad Astra took care of the problem quickly and inexpensively.

Ad Astra’s client is a consulting business in Oakland, we’ll call them ABC, Inc. for the purpose of this story. ABC, Inc. registered a trademark for its name for the provision of  consulting services. After some time, another business called ABC Partners, which sometimes went by the name ABC Brokerage, started offering similar services, but in Southern California instead of Northern California. ABC, Inc. sometimes gets phone calls for people trying to reach ABC Partners/Brokerage, and at one point, ABC Partners/Brokerage copied ABC, Inc.’s website and used it as their own! ABC, Inc.’s trademark lawyers have written letters to ABC Partners/ABC Brokerage demanding that they stop using the name “ABC,” but they haven’t had the money to bring a trademark infringement lawsuit.

As if the confusion in the marketplace weren’t bad enough (i.e. phone calls for one business going to the other), ABC Partners/ABC Brokerage became involved in an allegedly illegal medical cannabis dispensary in Upland, California and when the City of Upland sued to shut down the dispensary, it named ABC, Inc. as a defendant right along with ABC Partners and ABC Brokerage!  Even being named in a lawsuit that you had nothing to do with can be devastating to a business because of the high cost of participating in litigation.

As ABC, Inc.’s General Counsel, Katy Young called the City Attorney for the City of Upland within 15 minutes of the complaint being served and gently explained that this is  a case of mistaken identity, and ABC, Inc. has nothing whatsoever to do with the matter—except that ABC, Inc. also had a cause of action against ABC Partners/ABC Brokerage. When the City Attorney became obstinate and insisted on keeping ABC, Inc. in the litigation, forcing them to prove a negative, Ms. Young declared her intention to file a motion under California Code of Civil Procedure Section 128.7, which would have told the Judge that ABC, Inc. felt the litigation was frivolous. It also would have forced the City plaintiff to come forward with affirmative evidence showing why it thought that ABC, Inc. was a proper defendant even after being faced with the information that ABC, Inc. was a competitor of ABC Partners/Brokerage. No such information existed. The City had simply been lazy about the investigation and cast too wide a net.

Ms. Young also reached out to the other defendants named in the matter, including ABC Partners/Brokerage, and politely asked them to call the City’s attorney to explain that ABC, Inc. was not involved, else ABC Partners/Brokerage would face a cross-complaint for trademark infringement and equitable indemnity. Recognizing the danger of fighting a two-front war, ABC Partners/Brokerage’s attorney contacted the City Attorney and averred that ABC, Inc. is not affiliated with ABC Partners/Brokerage in any way. Within 10 days from service, the City’s attorney dismissed the complaint against ABC, Inc., thereby saving Ad Astra’s client countless thousands of dollars in litigation expenses. The tactic here was Teddy Roosevelt style foreign policy: speak softly but carry a big stick.

 

Written by Keenan W. Ng

Recently, the Ninth Circuit in Nguyen v. Barnes &Noble, Inc. held that “where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.”

In 2011, plaintiff purchased two Hewlett-Packard Touchpads from the Barnes & Noble website during a fire sale. Unfortunately, despite receiving a confirming email of his purchase, plaintiff’s order was cancelled due to high demand. Plaintiff filed suit alleging he had to purchase another tablet at a higher price. Defendant argued that plaintiff must arbitrate the matter per the browsewrap terms of use agreement.

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Written by Keenan W. Ng

An interesting Computer Fraud and Abuse Act case was recently filed in Virginia. In AcmeBilling Company v. John Doe, Plaintiff, Acme, who maintains numerous websites hosted by GoDaddy, alleges cyber criminals in China stole its domain names. These cyber criminals stole the domain names by gaining unauthorized access to Acme’s domain management account and altering the domain registration records for accounts owned and used by Acme. While Acme was able to recover some of its domain names by working with GoDaddy, GoDaddy unfortunately informed Acme the Chinese domain name registrar who had 14 of their domain names refused to return the websites.

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Welcome to Scripta Ad Astra, the blog of the Ad Astra LawGroup, LLP.  Our firm specializes in business, employment, and real estate litigation.  This blog will provide insight and updates on these practice areas, updates on the firm, and general musings from the firm’s attorneys.   We hope you come back to visit us.  Also, please feel free to reach out to us by email!  Per aspera, ad astra!

Author: Wendy Hillger

The Honorable Cormac J. Carney ruled on July 16, 2014 that the death penalty system in California is unconstitutional.  In a 29-page opinion, Judge Carney noted the system in California serves no penological purpose because of the extended period of time it takes to enforce it.  Most Death Row inmates die of natural causes rather than at the hands of the state.  There are nearly 750 inmates currently on Death Row, including San Quentin’s Ernest Dewayne Jones, the petitioner in this case.  Given the problems with lethal injections, executions have been halted in California since January 2006.

The case at present only gives a reprieve to inmate Jones, but an appeal to the Ninth Circuit Court of Appeals by the Attorney General Kamala Harris is under review.  A statewide order could come from the Ninth Circuit, and then the case could make its way to the United States Supreme Court.  The death penalty was ruled unconstitutional in 1972 by the U.S. Supreme Court, but the Court later reinstated capital punishment nationwide four years later.  Thereafter, the voters of California have instituted capital punishment three times.

If affirmed, Judge Carney’s ruling could end capital punishment in the state (temporarily if not permanently).  Inmates on California’s Death Row, including Polly Klaas’ and Laci Peterson’s killers as well as other notorious serial killers, could see their penalties commuted to life in prison sentences.

We do not take a position on capital punishment.  However, we do note that appeals in civil lawsuits take over 12 months to adjudicate.  All appeals in death penalty cases are automatically presented to the California Supreme Court.  The Supreme Court, like other courts, are struggling to keep up with the pace of cases filed.  It is axiomatic that removing the need to review prisoner death penalty appeals would speed up all other appeals.

The United States District Court for the Central District of California opinion can be found here.

Author: Scripta Ad Astra Staff

Usually, when answering an unverified complaint in California Superior Court, counsel for the defendant will file a general denial, along with a laundry list of “boilerplate” affirmative defenses that might apply to the plaintiff’s claims.  More often than not, the defendant’s answer will fail to include any specific facts supporting those defenses.

At first blush, this common practice may appear to be the result of sloppy or lazy work.  However, vagueness in the defendant’s answer is often a result of the fact that most defendants do not have the ability to prove their defenses at the initial answering phase, usually well-before conducting any discovery.  In addition, the defendant has significant incentive to be over-inclusive when it comes to affirmative defenses, as a party waives un-pled defenses.  An argument can be made that requiring specific facts at the preliminary answering phase of the proceeding may result in significant prejudice and a miscarriage of justice to the defendant who is unable to specifically plead all of its potential affirmative defenses.

On the other hand, the defendant’s inclusion of copious amounts of affirmative defenses that are not likely to ever be used in the case may be so excessive it borders on abuse.  More and more plaintiffs’ attorneys are bringing demurrers to the affirmative defenses in answers.  These demurrers are based upon the respective defendant’s failure to state facts sufficient to constitute a defense pursuant to the requirements of California Code of Civil Procedure Section 430.20.

Many practitioners on both sides do not realize that the affirmative defenses stated in the answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action alleged in the complaint: the defendant is required to plead ultimate facts, rather than evidentiary matters or legal conclusions.  See Doe v. City of Los Angeles, (2007) 42 Cal. 4th 531, 550, and FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.  However, even where a defense is defectively pled, it may be allowed if the defendant’s pleading gives sufficient notice to enable the plaintiff to prepare to meet the defense, in part because un-pled defenses are waived.  See Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, 240.

When the defendant has filed a factually unsupported answer, there is a strong probability that a judge will sustain the plaintiffs’ demurrer to the answer, but will simultaneously grant the defendant leave to amend.  Therefore, it is best practice to determine whether the demurrer is necessary.   The plaintiff’s attorney should ask whether the motion will ultimately save costs on discovery by eliminating meritless affirmative defenses at the outset, or whether it is going to burn attorney’s fees with little benefit to the client.  In cases with a “burning limits” insurance policy or with a defendant with limited funds, creating more work for your opponent ultimately reduces the funds available for settlement.  Expedient trial scheduling may also be adversely affected by a demurer to the answer.  Many courts have a considerable backlog for dates to hear demurrers, and, as result, the demurrer may still be pending at the time of the initial case management conference. When that happens, because the case is not at issue, the likelihood of obtaining the earliest-possible trial date is slim to none.  The defendant’s attorney faced with a demurrer to the answer must determine whether it is cost-effective to oppose a motion that will likely be granted, or to offer to amend the answer.  Although unlikely, a court could potentially sustain the demurrer as to some or all of the affirmative defenses without leave to amend.

The answering defendant is in the position of avoiding the situation altogether by being more careful in drafting affirmative defenses.  However, if there is a dispute as to the factual sufficiency of affirmative defenses in an answer, the most expedient solution is to simply attempt to informally resolve the dispute by meeting and conferring with opposing counsel to discuss the defenses.  If possible, the parties should agree to amend the answer to remove unnecessary affirmative defenses and include some facts within the defendant’s knowledge to give notice of the bases for the meritorious defenses.
If the parties can be reasonable and informally resolve their dispute, they will: (1) avoid unnecessary attorneys’ fees (which the clients will appreciate), (2) advance the case beyond the pleading phase (which the attorneys should appreciate), and (3) prevent excessive motion practice in the already-over-burdened courts (which the judge will appreciate).

Written by Michael S. Dorsi

San Francisco-based NovelPoster, having settled its Computer Fraud and Abuse Act (“CFAA”) claim against Javitch Canfield Group, filed a brief as amicus curiae in the Ninth Circuit Court of Appeals case of United States v. Nosal (9th Cir. Case Nos. 14-10037 and 14-10275).

While the NovelPoster and Nosal cases originated differently — NovelPoster was a civil action and Nosal is a criminal prosecution — both cases touched on an important question: is a person liable under the Computer Fraud and Abuse Act for acting without authorization — a term that applies equally in civil lawsuits and criminal prosecutions — if the actions in question did not involve circumventing a technical or code-based access barrier.

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