Monday, December 26, 2016

McNair v. NCAA (Cal. Ct. App. - Dec. 23, 2016)

Since we're still in the court holiday season -- and hence on published opinion hiatus -- I thought I'd go back and mention the last published opinion rendered before the holidays.

Given that the holiday season includes a ton of football games (both college and pro), it's an opinion that's particularly timely.  If only because it involves a lawsuit brought by Todd McNair, who was a former player and assistant coach.  He doesn't like what the NCAA did to him, so he sued.  A lawsuit that's gone on for many years, and -- as the Court of Appeal notes -- "has been assigned to eight trial judges in five years."  Not exactly what you want, either from the perspective of the litigants or of the system.

Over half a decade ago, the NCAA filed a peremptory challenge to the original judge, then filed an anti-SLAPP motion, which the trial court denied.  The NCAA filed an appeal, which it partially won, and then on remand, the NCAA filed another peremptory challenge that struck the judge who denied its anti-SLAPP motion.  You're allowed to do that under the statute since you prevailed on appeal, and the trial judge accordingly recused himself.

But McNair files a writ, and the Court of Appeal reverses.  The opinion holds that a party is only allowed to paper the judge twice if they obtain a reversal on appeal from a final judgment, whereas the reversal here was from an interlocutory anti-SLAPP appeal.

There's some textual support for that position, since the second sentence of Section 170.6(a)(2) does indeed expressly say "final judgment".  But there's also textual support to the contrary, since the first sentence of exact same section says "a motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment."

The Court of Appeal nonetheless holds that the statute is unambiguous.  So we can entirely ignore legislative history, as well as pretty much anything else.  You only get to a paper the judge a second time if you get a reversal of a final judgment.  And since that didn't happen here, no second paper, and we'll reverse the contrary decision below.

At least now we know the rule.