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New Cases of Interest - July 7, 2010
Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12. This is a SLAPP case. A manufacturer sued a lawyer, asserting defamation-related claims arising from a newspaper advertisement directed at the owners of wood decks which were constructed with the manufacturer’s galvanized steel fasteners. The advertisement on behalf of the lawyer was a solicitation for legal business. A SLAPP motion was granted, and upheld by the Supreme Court. In so holding the Court held that the burden of proof as to the applicability of the commercial speech exemption was on the manufacturer as to whether its claims arose from misrepresentations of fact about business operations. The Court found that the causes of action in the complaint arising from the alleged misrepresentation fell outside the exemption for commercial speech.
Gino Commercial Bank v. Peters (2010) 184 Cal.App.4th 1333. A corporation received checks from a foreign bank account and deposited them and then authorized a payout of $468,000. It turned out that the checks which had been deposited all bounced and had been altered. The customer had been the victim of an e-mail scam. The bank sought to recover the overdraft that resulted from honoring checks written on the corporation’s account and sought a right to attach order. The right to attach order was upheld, with the court concluding that under Commercial Code §3406(c) the corporation had the burden of proving that the bank had acted negligently and failed to do so. The bank had acted in good faith and paid an instrument that it took for value or collection. The corporation had failed to exercise ordinary care in accepting and tendering the check for payment. There was no evidence that the bank had actually violated prevailing commercial standards.