Carolyn Kuhl’s Hearing Strengthened the Case Against Her Confirmation

Trying to limit protection for whistleblowers

Senators’ concerns: In a unanimous ruling strongly critical of Judge Kuhl in Liu v. Moore, the California Court of Appeal reversed Kuhl’s ruling that prevented a whistleblower from getting monetary relief under California’s anti-SLAPP law, explaining that Kuhl’s decision was an improper “nullification of an important part of California’s anti-SLAPP legislation.” 69 Cal. App. 4th 745, 748 (1999). In this case, a plaintiff had sued Deborah Moore, a whistleblower, causing her to incur substantial legal expenses, and then voluntarily dismissed the complaint before Kuhl could rule on Ms. Moore’s motion for legal costs to which she was entitled under the anti-SLAPP law. At Kuhl’s hearing, Senator Feinstein asked Kuhl about this case, noting that, according to Ms. Moore’s attorney, her ruling would have prevented Ms. Moore from pursuing her right under the law to recover the nearly $40,000 in legal costs that she had incurred. Noting the harsh language of the Court of Appeal’s decision reversing Kuhl’s ruling, Senator Feinstein asked Kuhl to respond to the Court of Appeal’s criticism of her decision and a letter she had received from Ms. Moore’s attorney. Kuhl Hearing, at 58.

Kuhl’s testimony: Kuhl claimed that the issue before her was “an issue of first impression,” and that she had “struggled a good bit” with the question of what jurisdiction remained with the court when the party suing the whistleblower dismissed the complaint before the court could rule on the whistleblower’s motion for legal costs. Kuhl Hearing, at 58-59.

The facts: In its sharply worded, unanimous decision reversing Kuhl’s ruling, the Court of Appeal “struggled” not at all with the issue of jurisdiction, disposing of it in a footnote. 69 Cal. App. 4th at 751, n.3. 52

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