Developments of Interest

New Cases of Interest - February 16, 2017

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02/16/2017

Barry v. State Bar of California (2017) 2 Cal.5th 318.  This is a SLAPP decision from the California Supreme Court.  An attorney brought an action against the State Bar alleging that its actions against the attorney were retaliatory and discriminatory, and the State Bar filed a SLAPP motion.  The trial court granted the motion concluding that the attorney did not show the likelihood of prevailing on her claims for a variety of reasons, but among the reasons were that the superior court lacked subject matter jurisdiction over attorney disciplinary matters.  The Court of Appeal then reversed but on the basis that the trial court's lack of jurisdiction precluded it from ruling on a SLAPP motion altogether.

The Supreme Court reversed the Court of Appeal finding that although the trial court lacked subject matter jurisdiction, the trial court could as a result determine that the attorney did not establish a probability of prevailing on the claim, due to the lack of subject matter jurisdiction.  The trial court could also award attorney's fees and costs to the prevailing party as a result.  The court noted that ruling on a SLAPP motion does not necessarily require a ruling on the merits of the claims, and it may also instead involve a determination that the plaintiff has no probability of prevailing because the court lacks the power to entertain the claim in the first place.

Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416.  This was another SLAPP case.  In this situation the owners of a hospital sued attorneys for defamation and other causes of action alleging that the attorneys had falsely stated on television and radio programs that the owners of the hospital engaged in a scheme to use counterfeit screws on spinal surgery patients.  The SLAPP motion was granted and affirmed by the Court of Appeal.  The Court noted that the lawyer's statements were made in connection with an issue of public interest because they related to allegations that the owners had conspired with physicians to insert counterfeit hardware in thousands of people and to defraud insurance companies, that a physician referral kickback scheme also involved prostitutes and lavish trips on private jets, and that there was a further relationship between these schemes and legislation which was supported by a State Senator who had also received financial benefits.  The owners were unable to show a probability of prevailing because the statements made by the attorneys were also covered by the Fair Report privilege in Civil Code § 47.

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