Developments of Interest

New Cases of Interest - July 2, 2018

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Guarino v. County of Siskiyou (2018) 21 Cal.App.5th 1170.  This is a SLAPP action in which a county officer sued a county alleging he had been improperly removed as a county officer and that the county had breached an employment contract.  The SLAPP motion was granted.  The Court held that there had been an internal investigation into the alleged harassment by the officer and that an internal investigation was an official proceeding authorized by law.  Statements in connection with it also arose from protected activity, as did the members' votes to remove the officer.  The county was carrying out its duty to investigate and prevent harassment of employees and to supervise officers under Government Code §§ 12940 and 25303.  Such an investigation could be done outside the scope of a formal accusation.  The county's motion was properly granted because the officer had no probability of prevailing on the merits of a contract claim in light of the non-contractual nature of the officer's appointment.

Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564.  Procedurally, this matter involved a demurrer to a first amended cross-complaint and motion to strike a second amended cross-complaint.  The Court of Appeal noted that notwithstanding the general liberal policy of allowing amendments to pleadings, the court had the authority to strike unauthorized pleadings, meaning pleadings which had been filed to amend an earlier pleading without court approval, and there was no statutory entitlement to three opportunities to amend as was contended by the party seeking to amend.  When it is unlikely a cause of action can be stated as a matter of law, the court is within its discretion in denying leave to amend.

Kettler v. Gould (2018) 22 Cal.App.5th 593.  This is a SLAPP case.  Financial planners made allegations in a cross-complaint regarding alleged defamation which the cross-defendants sought to remove by their SLAPP motion.  The court found that the operative actions by the cross-defendants, filing a complaint with the Certified Financial Planning Board of Standards, was not protected activity under the SLAPP statute because it was not a statement made in connection with an official proceeding.  The CFP Board was not a government entity and not related to any government entity.  Similarly, the cross-defendants' communications with the cross-complainants' employer were not pre-litigation communications that were absolutely privileged.  The motions were therefore properly denied.

Tindell v. Murphy (2018) 22 Cal.App.5th 1239.  This case raises the sham pleading doctrine and found that the plaintiffs were bound by allegations in their original verified complaint and could not without reasonable explanation subsequently contradict those allegations in seeking to sue new parties and raise new theories.  The court also found that the purchasers of real property did not have a claim against an appraiser for negligence based on a report which the appraiser prepared for the lender, not the buyers, despite the buyers' argument that the appraisers knew the buyers were waiting to see if the home would appraise at a number that would allow financing.

Newport Harbor Office & Marina LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28.  This is a SLAPP action.  The court granted the SLAPP motion that attacked allegations based on an unlawful detainer action, finding that those claims arose out of protected activity and the probability of prevailing on the action was not established because a declaration that was submitted for that purpose did not show personal knowledge as required for authentication.

Yeager v. Holt (2018) 23 Cal.App.5th 450.  This is another SLAPP action.  Defendants, an attorney and his law firm, filed a SLAPP motion in an action brought by two former clients alleging professional negligence, misappropriation and other claims.  The defendants had been unsuccessful in an action against one of their clients seeking to obtain attorneys' fees.  The SLAPP motion was denied with a finding that the clients' action did not show protected expressive conduct or free speech or an issue of public interest.  A typical attorney malpractice suit is not subject to the anti-SLAPP procedures.  Nothing the defendants tendered in their motion showed that the clients had used any extrajudicial means and the mere fact that they had filed a separate lawsuit alleging malpractice and other claims did not threaten defendants' expressive rights.

Benaorya v. Willis (2018) 23 Cal.App.5th 462.  In an arbitration proceeding an arbitrator granted a motion to add a party who was not a party to the arbitration agreement.  The party added was alleged to be the alter ego of a company which had signed the arbitration agreement.  
The Court of Appeal found this was improper and that the arbitrator had no authority to make this determination, and it was a matter solely within the authority of the court, not the arbitrator.  The non-signatory to the arbitration agreement had not agreed to delegate any issues to the arbitrator.

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