Developments of Interest

New Cases of Interest - March 8, 2010

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Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566 involved a complaint filed against an expert who had previously testified in a wrongful death suit.  The wrongful death suit had been settled after the plaintiff’s attorneys had obtained a continuance of the trial date on the basis that the expert had testified falsely at deposition.  Claimants contended that they had been deceived and pressured into accepting a settlement because the expert and the attorneys wanted to market a new safety device product.  A motion was brought to strike the complaint under the SLAPP statute, which was denied.  The denial was upheld on appeal.  The court found that the expert’s alleged misconduct was not protected activity under the statute, because it did not arise from the underlying lawsuit.  Although the deposition testimony was a statement made in the course of a judicial proceeding, that did not insulate the expert from recourse by the parties on whose behalf his statement was made.  The court felt that the claims were similar to legal malpractice claims.  The court also did not find protection for the expert under the litigation privilege in Civil Code section 47(b). 
Stewart v. Rolling Stone, LLC (2010) 181 Cal.App.4th 664.  This was a class action case brought against a number of defendants which alleged unfair business practices.  The complaint alleged that the defendants had used the names of the plaintiffs, rock musicians, and other class members for commercial purposes in advertising cigarettes without their prior authorization.  Defendants filed a SLAPP motion which was denied by the trial court, but reversed by the Court of Appeal. 
The Court of Appeal found that the speech at issue was protected by the statute, and the act from which the complaint arose, the publication of the names of the musicians, was conduct in furtherance of the right of free speech in connection with a public issue or an issue of public interest.  The court also found that the use of the bands’ names, which occurred in an editorial feature in the magazine, was noncommercial speech as a matter of law, even though the placement of the feature within the advertising layout may have caused the plaintiffs’ distress because their names appeared in close proximity to the tobacco ad.  Plaintiffs were not able to demonstrate that the defendants had acted with actual malice, and constitutional principals of freedom of speech and the press therefore required that the case be dismissed.

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