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New Cases of Interest - May 9, 2011
JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222. This is an interesting case involving a motion to compel arbitration. Defendants moved to compel arbitration of an action filed by plaintiffs with respect to the language of 3 separate, but substantially identical, real estate sales contracts. The Trial Court had denied the motion to compel arbitration.
The Court of Appeal found that the defendants petition for writ of mandate was an appropriate way of seeking relief, rather than filing an appeal, with respect to the order denying the motion to compel arbitration in the particular circumstances of this case. The Court found that certain plaintiffs who were non-signatories, who had joined the action to assert claims based upon or arising out of the alleged breach of the contracts which contained arbitration provisions could also be compelled to arbitrate, but there was not enough evidentiary material to reach a conclusion on that issue and the Appellate Court remanded the case to the Trial Court to determine whether plaintiff should be compelled to arbitrate and the current motion to compel was therefore denied without prejudice.
The City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301. This is another SLAPP case. In this matter a city had sued a former employee for breach of a settlement agreement and also sought declaratory relief. The employee sought to strike the declaratory relief claim based on the SLAPP statute. The Trial Court denied the SLAPP motion and its Order was affirmed by the Court of Appeal. The Court determined that the City’s declaratory relief claim did not arise from protected activities but from a contract dispute. While the employee’s protective speech activities may have alerted the City to the issue relating to a provision of the settlement agreement, the former employee speech itself was not the controversy at issue. The City was not suing the former employee because he had engaged in protected speech, but because it believed he had breached a contract.
Sullivan v. Centinela Valley Union High School District (2011) 194 Cal.App.4th 69. In this case a probationary teacher sought mandamus to compel a school district to reinstate him in permanent status alleging that the District was one day late in serving him with a notice under Education Code §44929.21. The teacher the Court found had been avoiding service under circumstances supporting an inference that he did so with knowledge of the non-retention decision and given the evidence of avoiding service, he could not benefit by not receiving actual notice until March 16. The teacher had not attended work on March 14 and had been absent from his residence for the entire day on March 15. There was an individual at the residence who signed for the notice under 44929.21 and also had ostensible authority to do so, and in addition the Court found that the teacher had actual notice on March 10 when the Director of Human Resources told him that he would not be reelected and offered him the option of resignation.