Developments of Interest

New Cases of Interest - June 20, 2012

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Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195.  A registered nurse was convicted of a misdemeanor after being involved in causing a single car accident while driving with a blood alcohol limit in excess of the legal limit.  The Board of Registered Nursing sought to revoke his license and following a hearing before an administrative law judge, the nurse's license was ordered revoked, but the revocation was stayed for three years subject to meeting conditions of probation.  The nurse appealed to the superior court which granted a writ of administrative mandate and reversed the disciplinary action taken finding that the nurse's conduct and the conviction were not substantially related to the qualifications, functions or duties of a registered nurse.

The court of appeal reversed.  The court concluded that the discipline imposed was appropriate and that the nurse's conduct did constitute unprofessional conduct based on the use of alcohol in a manner dangerous to himself or others.  This conduct bore a sufficient nexus to the qualifications of a nurse to justify the disciplinary action taken.

Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423.  A published opinion in which Rich Raines and Amanda Beck are published on the winning side.  The court finds that the plaintiff, although a partner in a partnership, was a person who had protection under Government Code §12940(h) from retaliation for opposing harassment of employees.  Because the partnership was the employer of the people who were the victims of the harassment that had been reported by the plaintiff, she subsequently alleged that she had become the subject of partnership retaliation.  The harassment of the partnership employees, if proven, was an unlawful practice for which the partnership was potentially liable under Government Code §12940 and §12940(h) makes it an unlawful practice to retaliate "against any person" for opposing that harassment.

JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512.  This is another in a series of SLAPP cases.  In this case, an attorney filed a SLAPP motion contending that a complaint brought against him was one arising from protected activity and that Plaintiff also did not demonstrate the probability of prevailing on its claims.

The court of appeal reversed the trial court and remanded with an order to grant the motion to strike.  The plaintiff had filed a complaint against the defendant, and another party, alleging causes of action for malicious prosecution and abuse of process.  The court found that the complaint arose from protected activity and was properly the subject as a result of a SLAPP motion.  The litigation privilege barred the claim for abuse of process because the nature of the claim was based on the allegation that the defendant and his client had misused the litigation process by filing a frivolous lawsuit.  While in an appropriate case this might give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis by itself for an abuse of process action.  The court also found that the voluntary dismissal of the claim was not a favorable termination for purposes of malicious prosecution.  The plaintiff could not therefore establish that it would prevail on the merits and the SLAPP motion should have been granted.

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