Developments of Interest

New Cases of Interest - November 18, 2013

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Kurwa v. Kislinger (2013) 57 Cal.4th 1097.  In this case the plaintiff had sued the defendant for both defamation and breach of fiduciary duty and the defendant had cross-complained for defamation.  The trial court ordered the plaintiff's action dismissed with the exception of the defamation cause of action and that defamation cause of action along with the defendant's defamation cause of action were dismissed without prejudice.  The trial court then entered a judgment in favor of defendant which the plaintiff subsequently appealed.

The Supreme Court determined that the action was not properly subject to appeal, and that when the trial court resolved some causes of action and others were voluntarily dismissed but without prejudice, the parties intention to subsequently renew the litigation on the remaining claims causes the judgment that is issued to not be final as to the disposition of all clauses of action between the parties and therefore not appealable under CCP §904.1(a).  The court's rationale relates to the policy of not allowing the parties to stipulate to waive applicable statutes of limitation and by doing so preserve for later litigation claims originally brought while portions of an original action brought are contractually submitted for appeal.

GetFugu, Inc. v. Patton Boggs, LLP (2013) 220 Cal.App.4th 141.  This is a SLAPP case.  A corporation and one of its directors filed a lawsuit against an attorney and his law firm and as well as a second attorney and his law firm alleging a defamation cause of action based primarily on two publications, a press release by the second attorney stating that the FBI was said to be investigating the director's involvement in an investment scam, and the second attorney's subsequent three line message on a social networking website.

With regard to the first attorney and his law firm, the court found that none of the statements on which the plaintiffs relied was attributed to that group of defendants and the SLAPP motion was properly granted as to that group of defendants.  The second attorneys had shown that the defamation claim arose out of a protected activity and that because the corporation was a public company, investment scams were a matter of public interest.  However, the plaintiffs had met their subsequent burden of showing that the defamation claim had merit sufficient to withstand the SLAPP motion.  The court did conclude that the message on the social networking site was merely non-actionable opinion.

Friars Village Homeowners Association v. Hansing (2013) 220 Cal.App.4th 405.  A homeowners association had a rule which disqualified from candidacy to become a member of the association's board any person who was related by blood or marriage to another board member or a candidate for the board.  A spouse of an owner challenged the rule, but the rule was upheld by the court of appeal, finding that the association acted within its authority to specify board candidate qualifications pursuant to Civil Code §1363.03(a)(3).

Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495.  This was an action in which a former employer brought a claim under the Uniform Trade Secrets Act and also common law claims against a former employee and a competitor.  The trial court had found that the Uniform Trade Secret Act preempted the common law claims.  The trial court's ruling in that regard was reversed by the court of appeal which concluded that the employer's claims for breach of contract, breach of fiduciary duty, unfair competition, interference with business relations and conversion each had a factual basis independent of the misappropriation of a trade secret claim.

Regents of University of California v. Superior Court (2013).  In this case a physician took home an external hard drive with confidential information concerning patients and their medical records, along with the unsecured encryption password.  The hard drive and the password were taken from the home of the physician and were never recovered.  One of the patients thereafter sued based on the health care provider's negligence or maintenance or storage of protected medical and private information.

The health care provider was granted a petition for writ of mandate compelling dismissal of the action against it.  The court held that under Civil Code §§56.101 and 56.36(b) a private right for statutory damages based on negligent storage or maintenance of confidential information requires that the negligence result in unauthorized or wrongful access to the information, and the pleading was deficient because the patient did not allege that the medical records were ever viewed by an unauthorized individual.  Pleading negligent maintenance and then loss of possession of confidential medical information was found to be insufficient.

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