Legal Memos

Sugarman v. Brown (2021) 73 Cal.App.5th 152. This is a SLAPP matter. The plaintiff, a former bank officer, sued individual directors, bank executives and the bank’s auditor and the auditor, who was the one who then filed the SLAPP petition. The auditor’s motion was granted with the court finding that the statements in the annual 10-K report filed with the SEC constituted an official proceeding and plaintiff had presented no evidence on the merits of his fraudulent inducement claim against the auditor. This should be viewed in context of the following case, Sugarman v. Benett.

Sugarman v. Benett (2021) 73 Cal.App.5th 165. Plaintiff, a former officer and board member sued the bank, individual directors and executives and in this decision it was the bank that had filed a SLAPP motion. The court held that the SLAPP motion should have been granted on the basis of both the forms 8-K and 10-Q filed with the SEC as protected activity under CCP § 425.16 and also as a matter of public interest.

Park v. Law Offices of Tracey Buck-Walsh (2021) 73 Cal.App.5th 179. Plaintiff was suing his former attorneys and it gave rise to a collateral dispute with the Department of Justice over documents which had been subpoenaed that had been electronically stored by the Department of Justice. The court ordered the plaintiff to pay a substantial sum to the Department of Justice for the production of documents. The court of appeal referenced CCP § 1985.8(l) as allowing costs of a witness to be borne by another party in the production of electronically stored documents and courts have discretion to determine whether the burden and the expense of complying by a third party to a subpoena is undue in light of the fact of the particular case. The costs with compliance of the subpoena were significant and represented an undue expense to a third party and therefore those fees were properly passed on to the plaintiff.

Rice v. Downs (2021) 73 Cal.App.5th 213. A payment by an LLC of attorneys’ fees on behalf of a sole manager was subject to the provisions of a charging order. However, payment was made to a law firm which had a security agreement in connection with its representation agreement which had been perfected by the filing of a financing statement, and therefore took precedence over the charging order.

Mayes v. La Sierra University (2022) 73 Cal.App.5th 686. Plaintiff was struck in the face by a foul ball while attending a baseball game between two private universities. The court held that a judgment could not be granted on the primary assumption of risk doctrine because there were triable issues of fact concerning the scope of the defendant’s duty of care to protect spectators at baseball games and whether it breached that duty. This is a classic negligence analysis as to what the availability of protected measures would be, whether the costs justified taking those protective measures, and what the scope of the duty was for spectators. Because there were potentially disputed issues of fact, summary judgment was not appropriate.

Catlin Insurance Company, Inc. v. Danko Meredith Law Firm, Inc. (2021) 73 Cal.App.5th 764. This is a SLAPP case and in it the plaintiff filed a voluntary dismissal of the complaint after the defendants filed their SLAPP motion. The defendants did not seek attorneys’ fees in the SLAPP motion, but sought them subsequent to the dismissal. The court concluded that the party filing the SLAPP motion could seek fees at the time of filing the motion or subsequently, but here when it was done subsequently and the case had been dismissed, so there was no basis to award attorneys’ fees.

Xu v. Huang (2021) 73 Cal.App.5th 802. This is another SLAPP case and in this one, a defamation lawsuit, the plaintiff alleges the defendants had falsely told independent insurance agents and a client that the plaintiff was dishonest and unethical in her insurance business. The court found that the alleged defamatory statements came within the commercial speech exemption in the SLAPP statute (CCP § 425.17) because they were made for the purpose of increasing the defendant’s sales. The slander of a competitor in a private setting to solicit business is also not speech in furtherance of the exercise of Constitutional rights of petition or free speech in connection with a public issue, so the SLAPP motion should have been denied.


Related Attorney(s):
Gregory L. McCoy