39 Cal.App.5th 212
Cal. Ct. App.2019Background
- Alphonso Benton and Compcare Medical, Inc. (plaintiffs) sued Cynthia Moreno Benton, Moreno Family Medical and Associates, Inc., and Kristi Diehl (defendants) for trade secret misappropriation, interference with prospective economic advantage, defamation, unfair competition, and related fiduciary breaches after Moreno-Benton left a shared practice to open a rival practice.
- Defendants moved to strike under the anti‑SLAPP statute (Code Civ. Proc. § 425.16), arguing plaintiffs’ claims arose from protected speech: patient notices/advertising and the divorce petition filing.
- The trial court tentatively denied the anti‑SLAPP motion on the merits and, after supplemental briefing, expressly ruled the commercial‑speech exemption in Code Civ. Proc. § 425.17 applied and adopted the tentative denial.
- Section 425.17 provides a commercial‑speech exemption to anti‑SLAPP protection and contains a provision (subd. (e)) precluding immediate interlocutory appeal when a denial is based on that exemption.
- The defendants appealed the denial; the Court of Appeal considered whether it had jurisdiction to hear an interlocutory appeal where the trial court denied the anti‑SLAPP motion based on § 425.17.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court has jurisdiction to hear an interlocutory appeal from an order denying an anti‑SLAPP motion when the denial is based on § 425.17 commercial‑speech exemption | Benton argued the trial court correctly denied the anti‑SLAPP motion; immediate appealability not in their favor but did not dispute lack of jurisdiction | Defendants argued the Court of Appeal should hear the appeal despite § 425.17 because (1) Varian dictum isn’t controlling, (2) the trial court’s ruling was ambiguous as to which speech was covered, and (3) the court could treat the appeal as a writ | Held: The appeal is dismissed for lack of jurisdiction because § 425.17(e) precludes interlocutory appeals from denials based on the commercial‑speech exemption; discretionary writ relief refused |
Key Cases Cited
- FilmOn.com Inc. v. Double Verify Inc., 7 Cal.5th 133 (2019) (describes § 425.17 as exempting certain comparative advertising from anti‑SLAPP protection)
- Varian Medical Systems, Inc. v. Delfino, 35 Cal.4th 180 (2005) (explains Legislature made § 425.17 denials nonappealable)
- Goldstein v. Ralphs Grocery Co., 122 Cal.App.4th 229 (2004) (Court of Appeal held it lacked jurisdiction over an interlocutory appeal when denial rested on § 425.17)
- Griset v. Fair Political Practices Com., 25 Cal.4th 688 (2001) (general rule on statutory creation of appealability)