Developments of Interest

New Cases of Interest - December 15, 2015

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Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70.  Bikkina had done certain research and that research was criticized by the defendant who contended that plaintiff had falsified data and also committed plagiarism.  Plaintiff sued and the defendant filed a SLAPP motion.  The motion was denied and the court of appeal upheld the denial finding that the offending statements which were made during the university complaint process and at a lecture to a small number of students did not constitute an open debate made in a public forum and did not therefore give rise to protected activity under the SLAPP statute, and also did not concern matters of public interest.  Plaintiff had also shown a probability of prevailing and made a prima facie showing of actual malice.

Sprengel v. Zbylut (2015) 241 Cal.App.4th 140.  In this SLAPP case the defendant attorney sought to strike a complaint made for legal malpractice and other claims arising from an alleged violation of the attorney's duty of loyalty.  The SLAPP motion was denied and the denial was affirmed by the court of appeal finding that the claims did not arise from protected petitioning activity and that the SLAPP statute is generally inapplicable to claims seeking to impose liability based on an attorney's violation of conflict of interest rules or other actions taken on behalf of a client.

Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th 164.  In this case a nurse and two health care providers brought an action against a medical director based on the director's statements to the California Nursing Board that in turn led to an investigation of a nurse.  The defendant filed a SLAPP motion which the trial court granted although it also gave leave to amend.  The court of appeal found that the trial court's action in granting leave to amend was improper, the order granting the SLAPP motion was based on all speech being protected that was at issue in the complaint and there was also no probability that the plaintiffs would prevail on the complaint as alleged.

SingerLewak LLP v. Gantman (2015) 241 Cal.App.4th 610.  There was a non-compete agreement in a partnership agreement and the issue of the enforceability of the non-compete agreement was submitted to arbitration.  The arbitrator found that it was enforceable.  On a petition to enforce the arbitration award, a trial court determined that it had the power of de novo review and found that the non-compete was unenforceable under California law.  The court of appeal reversed the trial court's determination finding that there was nothing in Business and Professions Code § 16602 which as a matter of public policy upended the general rule prohibiting review of an arbitration award.  Since the parties had submitted the question of the validity and enforceability of the non-competition provision to arbitration, the general rule applied.

Nunez v. Pennisi (2015) 214 Cal.App.4th 861.  In this case a refrigeration contractor filed a malicious prosecution complaint against a former client.  The former client filed a SLAPP motion which the trial court denied and also awarded attorney's fees as a sanction for having filed the SLAPP motion in bad faith.  The court of appeal however while upholding the denial of the SLAPP motion found the trial court had failed to state its reasons for awarding attorney's fees as a sanction under CCP § 128.5(c) and reversed on that basis.

Olive Properties, L.P. v. Coolwaters Enterprises, Inc. (2015) 241 Cal.App.4th 1169.  A commercial tenant brought a SLAPP motion in an unlawful detainer complaint filed by its landlord.  The SLAPP motion was denied and the trial court awarded the landlord attorney's fees for sanctions.  This order was affirmed.  The court found that a non-paying tenant shouldn't be able to frustrate or stall an unlawful detainer action by filing a preemptive complaint against a landlord followed by a SLAPP motion to strike the landlord's unlawful detainer complaint on the ground that it arose out of the tenant's petitioning activity in filing the first lawsuit.  The trial court also had properly awarded attorney's fees because the tenant's motion to strike was clearly without merit and brought for the purpose of stalling the unlawful detainer action. 

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