The final word: civil law at the state high court

Our state Supreme Court must continually define and distinguish legally dispositive categories under both federal and state law. In its most recent case applying the Federal Arbitration Act (FAA), it drew a stark line between substantive statutory rights that cannot be waived by arbitration agreement and procedural rights that can. It also clarified that motions to strike strategic lawsuits against public participation (SLAPPs) cannot be asserted against suits for conduct that involves protected speech activities but is not itself speech, and that, under the California Public Records Act (CPRA), "public records" include work-related communications that government employees send or receive via their personal email and cellphones.

Firms cannot enforce arbitration clauses that would prohibit consumers from pursuing in any forum public injunctive relief under state consumer protection law. The right to seek public injunctive relief is a substantive statutory remedy that cannot be waived, unlike the right to pursue a class action lawsuit, which is a mere procedural device that can be waived. McGill v. Citibank, 2 Cal. 5th 945 (April 6, 2017).

This case involves the arbitration provision of Citibank's "credit protector" plan. Accountholder Sharon McGill sued Citibank for allegedly mishandling her claims under the plan. Among other relief, she sought a public injunction -- injunctive relief aimed at prohibiting unlawful acts that threaten other members of the public under state consumer protection law. Citibank moved to compel arbitration, which the trial court ordered for all claims other than those seeking public injunction. The Court of Appeal reversed the trial court and sent all the claims to arbitration.

Writing for a unanimous court, Justice Ming Chin reversed and invalidated the arbitration provision insofar as it purports -- as Citibank conceded in oral argument -- to eliminate the right to seek public injunctive relief in any forum. Justice Chin explained that the consumer protection statutes establish an unwaivable right to seek injunctive relief on the public's behalf. While Citibank argued that the FAA preempted this feature of California law, the court rejected this argument. In particular, the court clarified that the statutory right to public injunctive relief is a feature of state substantive law and as such remains untouched by the U.S. Supreme Court's Concepcion (2011) and Italian Colors (2013) decisions requiring state courts to enforce waivers of the mere procedural right to pursue a class action.

This decision treads ground similar to the state Supreme Court's opinion in Iskanian v. CLS Transportation L.A., 59 Cal. 4th 348 (2014), where the court upheld an employee's right to assert statutory claims on behalf of other employees under the California Labor Code's Private Attorneys General Act. The question remains open, however, as to whether a firm could compel a claimant like McGill to pursue her public injunction claims in arbitration rather than court. Prior state Supreme Court cases Broughton (1999) and Cruz (2003) held that consumers have the right to pursue their public injunction claims in court notwithstanding an agreement to arbitrate. While the state Supreme Court declined to revisit these cases in McGill, it is unclear going forward whether the state can continue to exclude these claims from arbitration in light of the U.S. Supreme Court's intervening FAA decisions.

Anti-SLAPP motions are available only in cases where the defendant's speech act is itself the wrong that is the subject of the complaint. A defendant cannot obtain a motion to strike simply because its conduct was the product of deliberation or related acts of expression. Park v. Bd. of Trustees of Cal. State Univ., 2 Cal. 5th 1057 (May 4, 2017).

Former assistant professor Sungho Park sued California State University, Los Angeles claiming discrimination after the university denied his tenure application. The university filed an anti-SLAPP motion under Section 425.16(a) of the Code of Civil Procedure, alleging that its tenure decision and the numerous communications leading up to that decision were protected speech activities. The trial court denied the motion, but a divided Court of Appeal reversed.

In a unanimous opinion by Justice Kathryn Werdegar, the state Supreme Court sided with the trial court. Noting the "ongoing uncertainty" in this area of law, the court clarified that many claims will involve speech activity without reaching the threshold for an anti-SLAPP motion to strike. The fact that a tenure denial is informed by the speech of university faculty and administrators does not render the ultimate decision a protected speech act.

One would hope that most courts and litigators would reach the same conclusion. The university's theory, taken to its limits, would give rise to a potential anti-SLAPP motion in practically any case where the defendant's alleged wrongdoing was the result of a deliberative process. While this case involved a state actor in the context of an antidiscrimination suit, the defendant's theory, rejected by the Supreme Court, would also have applied in commercial litigation when executives or board members made decisions through deliberation.

The CPRA requires disclosure of government employees' work-related communications even when employees use their personal email or cellphones. The act therefore remains relevant in the face of contemporary communication practices. City of San Jose v. Superior Court, 2 Cal. 5th 608 (March 2, 2017).

This case arose out of the petitioner's request for public records including emails and text messages "sent or received on private electronic devices" concerning downtown redevelopment projects in the city of San Jose. Rejecting the city's argument that messages communicated through personal accounts are not public records, the trial court ordered disclosure. The Court of Appeal reversed; it held that the communications were not public records because the city lacked sufficient possession or control over them.

Justice Carol Corrigan, writing for a unanimous supreme court, rejected the notion that communications are excluded from the CPRA simply because they are sent or held via a personal account. City governments control these public records by virtue of their control over their employees. To hold otherwise, the court warned, would invite mischief: "If public officials could evade the law simply by ... communicating through a personal device, sensitive information could routinely evade public scrutiny."

Similar challenges regarding the custody and production of documents on private devices are already familiar to civil litigators who have requested discovery from private parties. These privately held documents now promise to become increasingly relevant in public records requests and government suits. Indeed, the significance of such records has been illustrated by recent high-profile incidents including the "Bridgegate" scandal, in which New Jersey Gov. Chris Christie made headlines for his alleged failure to disclose private emails and text messages, and the controversy surrounding Secretary Hillary Clinton's use of a private email server for State Department business.