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California Case Law Update

ANTI SLAPP

Argentieri v. Zuckerberg Court of Appeal, 8 Cal.App.5th 768, 214 Cal.Rptr.3d 35817

Facts:

Plaintiff was an attorney for a client who sued Facebook, and its founder Mark Zuckerberg, in New York after purchasing an interest in Facebook. That lawsuit was dismissed. Facebook and Zuckerberg then sued Plaintiff and others for malicious prosecution etc. Facebook’s general counsel, Colin Stretch sent an email to the press stating Plaintiff, among others, knew the first lawsuit was based on forged documents. The United States District Court found the Facebook lawsuit did not state a claim against some of the defendants for malicious prosecution. Plaintiff then sued Facebook, and Zuckerberg again in California alleging that he was defamed by the statement he knew his client’s lawsuit was based on forged documents.
The Defendants filed a special motion to strike aka “Anti Slapp,” under Code Civ. Proc., § 425.16, contending the claim was barred by the litigation privilege, Civil Code §47(b), and the statement constituted an opinion, rather than an actionable statement of fact, and was in any event true. Plaintiff contended the litigation privilege did not apply and could be proven untrue. The motion was granted, striking the complaint.

Holding:

Affirmed. The Court of Appeal held the litigation privilege did not apply as the press lacks a substantial interest in the matter and the email was not the “next, useful step” in furthering the litigation. However, the Court of Appeal determined the fair and true reporting privilege, Civil Code § 47(d), did apply, despite the fact the defendants did not raise the argument, and on that basis determined the email was privileged and plaintiff would likely not prevail on his complaint.

Colyear v. Rolling Hills Community Association of Rancho Palos Verdes, Court of Appeal, 2017 WL 772457

Facts:

A homeowner applied to the homeowners’ association requesting to invoke its alternative dispute process against a neighbor who refused to trim trees blocking the homeowner’s view. Plaintiff, the neighbor, sued the homeowner and the association, alleging that homeowner and association wrongfully clouded his title by attempting to invoke the tree-trimming covenant to his property.
The now Defendant homeowner withdrew his application after the lawsuit was filed, then filed a special motion to strike aka “Anti Slapp,” under Code Civ. Proc., § 425.16, contending his application was protected activity under Code Civ. Proc., § 425.16(e), and that Plaintiff would not prevail as he had withdrawn his application to the HOA. The trial court agreed, granting the motion and striking the complaint.

Holding:

Defendant contended his application to the HOA was protected activity under § 425.16(e), either as part of an official proceeding or as a statement of public interest. The Court of Appeal did not reach the issue as to whether it was part of an official proceeding as it determined, based on prior decisions, and its own analysis, that HOA disputes are a matter of public interest. The Court also agreed Defendant would prevail in light of having withdrawn his application to the HOA.

GOVERNMENT TORT CLAIM

J.M. v. Huntington Beach Union High School District, Supreme Court of California, 2017 WL 875829.

Facts:

Plaintiff, a minor, sued defendant Huntington Beach Union High School District after suffering injuries in a football game. Plaintiff failed to file the claim against the defendant required by Government Code § 911.6. He retained an attorney after the six month limitation who timely filed an application for leave to file a late claim. The District did not respond to the application so it was denied by operation of law, Government Code § 911.6(c), on the 45th day after it was presented.
Plaintiff’s attorneys petitioned the Superior Court from relief from the obligation to present a claim more than eight months later. The trial court denied the petition and the Court of Appeal affirmed, noting Government Code § 946.6(b) required the petition be filed within six months of denial.

Holding:

The California Supreme Court affirmed, disapproving the Court of Appeal decision in E.M. v. Los Angeles Unified School Dist. (2011), 194 Cal.App.4th 736, 125 Cal.Rptr.3d 200. Plaintiff argued equitable estoppel and equitable tolling. The Court held estoppel did not apply as there was no affirmative act by the District on which he relied. Equitable tolling did not apply as Plaintiff failed to establish an injustice as he failed to comply with the terms of a claims statute “that had been in place for over 50 years.”

DISCOVERY

Haniff v. Superior Court, Court of Appeal, 2017 WL 786464

Facts:

Plaintiff sued for personal injuries. In the course of discovery Defendant filed a motion for an order that Plaintiff undergo a vocational rehabilitation examination by their vocational expert as Plaintiff had undergone a similar process with his expert. The motion was granted. Plaintiff filed a petition for writ of mandate.

Holding:

The Court of Appeal granted the Petition, finding that discovery is limited to what is described in the Code of Civil Procedure. The Court found the request for a vocational rehabilitation examination did not fit within the scope of the physical and mental examinations allowed under the code.

PROPERTY DAMAGE-TREES

Fulle v. Kanani, Court of Appeal, 7 Cal.App.5th 1305, 212 Cal.Rptr.3d 920.

Facts:

Plaintiff sued neighbor for trespass and negligence after neighbor hired workers to cut tree limbs and branches on Plaintiff’s property, claiming special damages for injury to the trees, restoration costs, and general damages for annoyance and discomfort. Plaintiff also sought, and was awarded, treble damages under Civil Code §3346 and Code of Civil Procedure §733, for both the special and general damages. The trial court trebled economic damages but found the enhancement did not apply to non-economic, or special, damages.

Holding:

The Court of Appeal reversed, finding in a case of first impression, after review of the two statutes and case law, the enhancement applied to both economic and non-economic damages.

EXPERTS

Sanchez v. Kern Emergency Medical Transportation Corporation, Court of Appeal, 8 Cal.App.5th 146, 213 Cal.Rptr.3d 830.

Facts:

Plaintiff sued first responders employed by an ambulance company for gross negligence for delay in transporting him to the hospital after he suffered a head injury in a football game. Defendant filed a motion for summary judgment. Plaintiff’s opposition was based on an expert declaration of a neurosurgeon that opined delay in treating swelling from subdural hematoma caused patient to suffered additional swelling, which led to severe neurological deterioration. The trial court granted summary judgment after sustaining objections to some of the opinions of Plaintiff’s expert.

Holding:

Affirmed. The Court of Appeal agreed the stricken opinions in the neurosurgeon’s declaration were not “accompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion.”

Perry v. Bakewell Hawthorne, LLC, Supreme Court of California, 2 Cal.5th 536, 213 Cal.Rptr.3d 764.

Facts:

Plaintiff sued for personal injuries after a fall on the stairs of Defendant’s property. Defendants filed a motion for summary judgment. The trial date was continued but the time for designating expert witnesses expired before the hearing on the motion for summary judgment. Plaintiff filed two expert declarations in opposition to the motion. The declarations were stricken and the motion was granted and affirmed by the Court of Appeal.

Holding:

The California Supreme Court affirmed, overruling Mann v. Cracchiolo, 38 Cal.3d 18, 210 Cal.Rptr. 762, and disapproving Kennedy v. Modesto City Hospital, 221 Cal.App.3d 575, 270 Cal.Rptr. 544. The Court noted there was a process available to address the timely failure to designate expert witnesses that is required to be followed before the hearing on a motion for summary judgment in the event the hearing takes place after the deadline. A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial.

ABOUT THE AUTHOR: Leslie M. Price is an Associate at Tyson & Mendes. Mr. Price specializes in personal injury and general liability litigation. Contact Leslie at 858.263.4099 or lprice@tysonmendes.com.