Developments of Interest

New Cases of Interest - September 20, 2017

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Lewis v. Superior Court (2017) 3 Cal.5th 561.  This is a proceeding involving the Medical Board of California and a licensed physician.  The Supreme Court determined that no violation of a patient's right to privacy occurs by allowing the Board to access CURES reports.  The Court reached this result by applying a balancing test with the State having a vital interest in controlling the distribution of dangerous drugs and patients retaining a reasonable expectation of privacy in their prescription records, but determining that interest is less robust than the privacy interest associated with medical records generally.  The Court concluded that a review of by the Board of the CURES records was justified by the State's interest in protecting the public from the unlawful use and diversion of a dangerous class of prescription drugs and protecting patients from negligent or incompetent physicians.  There remains however a potential issue as to whether the Board's access of CURES records violated the Fourth Amendment to the U.S. Constitution, but that issues was specifically not raised in not having been raised by the physician during the administrative proceedings or before the superior court.

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744.  Plaintiff brought a breach of contract action against the Defendant for failing to repurchase certain real property.  The Defendants asserted as an affirmative defense a novation, arguing that they were not liable under a repurchase agreement because it was superseded by the parties' option agreement.  The Court found that the Defendants were entitled to attorney's fees in that the Plaintiff's original action involved a dispute in connection with the option agreement, the dispute was closely connected to the option agreement with the Court concluding that the close connection was sufficient to trigger an attorney's fees provision. v. DoubleVerify, Inc. (2017) 13 Cal.App.5th 707.  This is a SLAPP case.  An entertainment media provider brought an action for trade libel, slander and other causes of action against a company that provided authentication services to online advertisers.  The Court held that the authentication services were provided in furtherance of a right of free speech in connection with an issue of public interest and it wasn't relevant that the reports by the authentication company went only to private subscribers because the reports themselves contained issues of widespread interest to the public.

Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757.  This is also a SLAPP case.  The Court found that the litigation privilege barred Plaintiff's tort claims and the claims also arose from protected activity because the response to an interrogatory was a writing in the borrower's bankruptcy action, and the failures to respond were in connection with an issue under consideration or review by the bankruptcy court.  This SLAPP motion should therefore have been granted.

Bonni v. St. Joseph's Health System (2017) 13 Cal.App.5th 851.  In this case a surgeon sued the defendant hospital for whistleblower retaliation alleging that he had been summarily suspended from medical staff privileges because he complained about robotic surgery facilities.  The SLAPP motion was filed by the hospital.  The Court found that the motion failed on the first prong of the SLAPP test because the claim did not arise from protective activity.  The surgeon did not allege that specific written or oral statements or writings allegedly formed the basis of his retaliation claim.  Rather he alleged that an abusive peer review process was initiated by the hospital because he made complaints about unsafe conditions.  His claim was not based merely on the act of initiating and pursuing the peer review process or on statements made during that process, but rather on a retaliatory purpose or motive by which the peer review was undertaken.

Minnick v. Automotive Creations, Inc. (2017) 13 Cal.App.5th 1000.  This case holds that an employer may have a vacation policy that provides that an employee will not begin to earn vacation time until after their first year of employment.

Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152.  A patient had signed an arbitration agreement with a skilled nursing facility and died ten days after signing the arbitration agreement.  The family of the patient contended that they were not required to arbitrate because the arbitration provision contained a thirty day rescission period.  The Court nonetheless held that arbitration was required in that the arbitration provision became effective immediately upon execution and the rescission period was never exercised.

Parrish v. Latham & Watkins (2017) 3 Cal.5th 767.  This matter involved a malicious prosecution claim brought by a former attorney against his former employer and attorneys who had represented it in an underlying action for misappropriation of trade secrets.  The Court found that when the trial court had initially denied a summary judgment brought by the original defendant, now plaintiff, it found that the lawsuit had sufficient potential merit to proceed to trial, although the Court also concluded after trial that the suit had been brought in bad faith because it lacked evidentiary support.  This triggered the interim adverse judgment rule.  The denial of summary judgment established probable cause to bring the action and eliminated the basis for bringing the malicious prosecution claim.

Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190.  This is another SLAPP case.  In this matter a country rap artist sued Facebook over Facebook's refusal to disable a page which the plaintiff claimed incited violence and generated death threats against him and his promotion team.  The Court concluded that the plaintiff's complaint involved an issue of public interest but Plaintiff failed to demonstrate that the complaint was both legally sufficient and supported by sufficient prima facie evidence to sustain a judgment.  The Court found that the appearance of advertisements next to a third party's use of Plaintiff's identity was insufficient to demonstrate a commercial use by the defendant. 

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