Developments of Interest

New Cases of Interest - August 26, 2014

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Ulkarim v. Westfield, LLC (2014) 227 Cal.App.4th 1266.  This is a SLAPP case.  A defendant landlord filed the SLAPP motion and was successful in the trial court but that decision was reversed on appeal.  The appellate court determined that the tenant's complaint did not arise from protected activity within the meaning of the SLAPP statute.  The basis of the tenant's complaint was not an attack on the service of the notice of termination or the filing of the unlawful detainer complaint, but the underlying decision by the landlord to terminate the lease.  Two other causes of action in plaintiff's complaint alleged that the defendant landlord had wrongfully interfered with the plaintiff tenant's business and still another cause of action alleged violation of the unfair competition statute.  Because the activity as alleged did not fall within the scope of the SLAPP statute, plaintiff did not have to show a probability of prevailing on the claims.

Rhea v. General Atomics (2014) 227 Cal.App.4th 1560.  In this case a court holds that an employer could enforce an employment policy which required exempt employees to use vacation for partial-day absences.  The employee had argued that it in essence caused them to become nonexempt employees under the rationale of the salary basis test because vacation leave is not salary.  Although vacation pay constitutes wages pursuant to Labor Code §200, requiring its use for partial-day absences does not violate the prohibition against forfeiture in Labor Code §227.3 because the policy did not take away accrued vacation time nor prevent it from vesting as it was earned, but only regulated its use.

Gotterba v. Travolta (2014) 228 Cal.App.4th 35.  This is again a SLAPP motion in which the plaintiff had filed a declaratory relief action over an attorney's letters which threatened litigation with respect to a contract dispute and defendants then filed their SLAPP motion.  The court at the trial level denied the motion which was affirmed by the Court of Appeal.  The pre-litigation letters the court decided may have triggered the complaint and might also be evidence in support of the complaint, but they were not the basis of the complaint.  The letters were evidence of a controversy between the parties but did not constitute the actual controversy itself. 

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