Developments of Interest

New Cases of Interest - November 2, 2015

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There have been a series of SLAPP cases decided in the last month, as this continues to be an area inspiring appellate litigation that goes well beyond any other set of statutes.

Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174.  In this case the trial court denied a SLAPP motion which was filed on the day before a scheduled trial.  The court heard the motion and then denied it as being untimely without consideration of the merits.  The court of appeal upheld the trial court's determination observing that the appeal was appropriate because the motion had been heard and then denied, but because the motion had been filed so far outside of the prescribed 60-day time period the trial court's refusal to entertain the motion on the merits was not an abuse of discretion.  The record supported the trial court's determination that the offered excuse pertaining to timeliness of new developments in the case was inadequate.  The motion was also defective in not targeting a cause of action or a claim but addressing proof of causation and damage issues.

Park v. Board of Trustees of the California State University (2015) 239 Cal.App.4th 1258.  An assistant professor brought a complaint alleging discrimination based on national origin concluding that he was denied tenure review on that basis.  The Board of Trustees of the California State University brought a SLAPP motion.  The court of appeal found that tenure proceedings qualified as an "official proceeding" within the meaning of the statute.  Plaintiff's claims arose out of this protected activity because the gravamen of his complaint, which was a decision to deny tenure, was based on performance evaluations.  The court found that a remand was necessary to determine whether the assistant professor could demonstrate a probability of prevailing on the merits.

Collier v. Harris (2015) 240 Cal.App.4th 41.  This was a case in which Plaintiff and Defendant were supporting opposite parties in a local school board election, and the defendant registered the plaintiff's name and the name of an advocacy group as Internet domain names and then when somebody clicked thinking they were going to Plaintiff they were redirected to an Internet site set up by Defendant which supported Defendant's candidate, not Plaintiff's.  Plaintiff sued.  Defendant filed a SLAPP motion.  The court remanded for further proceedings concluding that the case did arise out of protected activity because the registration of a domain name assisted the defendant in the exercise of free speech rights.  The remand was to determine whether Plaintiff could show a probability of succeeding on the merits.

Barker v. Fox & Associates (2015) 240 Cal.App.4th 333.  In this case a caregiver brought a defamation case against a conservator and case manager of an elderly woman for whom the caregiver provided care.  The defendants filed a SLAPP motion.  Plaintiff's claim included causes of action for libel and slander.  The court found that the statements were protected activities within the meaning of the statute and that Plaintiff had not demonstrated a probability of prevailing on the merits and the SLAPP motion should have been granted.

San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611.  A contractor brought a SLAPP motion against a public interest entity taxpayer action which sought to recover alleged unlawful contract payments made to the contractor.  The action by the taxpayers was brought on behalf of a school district. 
The contractor's motion was denied with the court finding that it was untimely and not excused in that regard in that the delay in filing took place after lengthy discovery, that a subsequent change in the pleadings was not substantive and Defendant's argument that private enforcement was unnecessary was neither supported by the record nor sufficient to excuse the delay in bringing the motion.  As an alternative, the court also found that the public interest exception in CCP § 425.17(b) applied because the plaintiff had no financial interest in bringing the action and met the disproportionate financial burden requirement without the need to prove payment of litigation costs or fees and private enforcement was necessary when the suit was filed even if there was a possibility of future public body action.

California School Boards Association v. State Board of Education (2015) 240 Cal.App.4th 838.  This had to do with the grant of a charter for a charter school and Plaintiff sought mandamus relief requiring the State Board of Education to adopt adjudicatory procedures in connection with the charter grant.  The court of appeal denied the writ, reversing the trial court, and determined that the State Board of Education was not required to engage in an adjudicatory process although there is a provision in the statute which appears to suggest such a process is required, concluding that this was a drafting error and that the creation of a charter is like creating a school district and is truly a quasi-legislative act.

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