Benton v. Benton

• Decision Date: 27 August 2019
• Docket Number: E068870
• Citation: 39 Cal.App.5th 212,252 Cal.Rptr.3d 118
• Court: California Court of Appeals Court of Appeals
• Parties: Alphonso BENTON et al., Plaintiffs and Respondents, v. Cynthia Moreno BENTON et al., Defendants and Appellants.

39 Cal.App.5th 212

252 Cal.Rptr.3d 118

Alphonso BENTON et al., Plaintiffs and Respondents,

v.Cynthia Moreno BENTON et al., Defendants and Appellants.

E068870

Court of Appeal, Fourth District, Division 2, California.

Filed August 27, 2019

Pitre & Teunisse and Patricia A. Teunisse, San Dimas, for Defendants and Appellants.

Brown White & Osborn and Kenneth P. White, Los Angeles, for Plaintiffs and Respondents.

OPINION

RAPHAEL, J.

The trial court denied the defendants' anti-SLAPP motion for two reasons, one of which was that the commercial speech exemption found in Code of Civil Procedure section 425.17 applies to the conduct underlying the operative complaint. Although most trial court orders resolving an anti-SLAPP motion are subject to interlocutory appeal, the Legislature has precluded interlocutory appellate jurisdiction over an appeal from an order denying an anti-SLAPP motion on the ground that the commercial speech exemption applies. We therefore dismiss this appeal.

I.FACTS

According to the operative Third Amended Complaint, plaintiff Alphonso Benton (Benton) and defendant Cynthia Moreno Benton (Moreno-Benton) were married and shared a Chino Hills dental practice through late 2014, when they divorced. Benton continues to work at that practice, plaintiff Compcare Medical, Inc. (Compcare). Moreno-Benton, however, opened a separate practice by forming defendant Moreno Family Medical and Associates, Inc. (Moreno Family) around the time of her departure from Compcare. Defendant Kristi Diehl was a physician's assistant at Compcare who left with Moreno-Benton for the rival practice.

Benton and Compcare allege that defendants Moreno-Benton, Diehl, and Moreno Family (collectively, "defendants") misappropriated trade secrets, intentionally interfered with the plaintiffs' prospective economic advantage, defamed plaintiffs, and engaged in unfair competition. The plaintiffs also allege that Moreno-Benton violated the fiduciary duties she owed to Compcare, and that Diehl violated the duty of loyalty she owed to that company.

Defendants responded to the operative complaint with a motion to strike pursuant to Code of Civil Procedure section 425.16, the provision known as the anti-SLAPP statute because it was designed to address so-called strategic lawsuits against public participation. (Further statutory references are to the Code of Civil Procedure.) The motion alleged that plaintiffs' lawsuit arises out of two types of activity protected by the anti-SLAPP statute: (1) notices to patients and others that Moreno-Benton was leaving Compcare to start a new practice, as well as advertising Moreno-Benton's services, and (2) the filing of the petition for the divorce of Moreno-Benton and Benton. Plaintiffs opposed the motion, arguing that the causes of action did not arise from protected activity, and that they could in any event demonstrate that their lawsuit had a probability of success on the merits.

At the first hearing on the motion, the trial court raised the section 425.17 commercial speech exemption and continued the hearing for supplemental briefing on that provision.

Prior to the continued hearing, the trial court issued a tentative ruling denying the motion on its merits, stating as follows: "The motion is denied. The speech constituting the gravamen of the action is not protected under California Code of Civil Procedure § 425.16, and the commercial speech exemption under § 425.17 applies." (Italics omitted.) At the hearing, as to whether the activity was protected under section 425.16, the trial court indicated that it believed that the causes of action arose out of business conduct that did not have "anything to do with the divorce." The court also stated that even if defendants proved the claims arose from protected activity, "I would find that the Plaintiffs have a probability of success, so ... your clients would still lose the motion." When the parties argued the commercial speech exemption, the court stated that the allegations were "clearly about the business and stealing the business and stealing ... alleged confidential information and trade secrets." The court stated that it was adopting the tentative ruling.

Following the hearing, plaintiffs gave notice of the trial court's adoption of its tentative ruling. The minute order issued following the hearing used nearly identical language to the tentative ruling, stating that the gravamen of the action is not protected conduct under section 425.16 "and the commercial speech exemption under section 425.17 applies."

II.DISCUSSION

A trial court's order is appealable when made so by statute. ( Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696, 107 Cal.Rptr.2d 149, 23 P.3d 43.) In civil matters, section 904.1 is the main statute that identifies appealable judgments and orders. Under that statute, final judgments are appealable. (§ 904.1, subd. (a)(1).) Interlocutory orders generally are not. ( In re Baycol Cases I & II (2011) 51 Cal.4th 751, 754, 122 Cal.Rptr.3d 153, 248 P.3d 681 ["The right to appeal in California is generally governed by the ‘one final judgment’ rule, under which most interlocutory orders are not appealable."].)

An appeal from an order granting or denying an anti-SLAPP motion is an exception to the nonappealability of interlocutory orders. (§§ 904.1, subd. (a)(13), 425.16, subd. (i).) Such orders generally are appealable immediately, rather than as part of an appeal from a final judgment.

However, in 2003 the Legislature enacted section 425.17, which "categorically exempts certain expressive actions from the scope" of anti-SLAPP protection ( FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 147, 246 Cal.Rptr.3d 591, 439 P.3d 1156 ) and makes immediate appeal of an order applying the exemption unavailable. The exempted speech has been referred to as "comparative advertising." ( Ibid. ). The exemption applies where a speaker who is part of a business makes factual representations to potential customers about the business or a competitor's business, for the purpose of gaining sales.¹

Our Supreme Court has stated, "[i]n creating this exemption, the Legislature expressly made the denial of an anti-SLAPP motion based on the section 425.17 exemption not appealable." ( Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 195, 25 Cal.Rptr.3d 298, 106 P.3d 958 ( Varian ).) The Legislature did so through section 425.17, subdivision (e), which states: "If any trial court denies a special motion to strike on the grounds that the action or cause of action is exempt pursuant to this section, the appeal provisions in subdivision (i) of Section 425.16 and paragraph (13) of subdivision (a) of Section 904.1 do not apply ...." ( § 425.17, subd. (e).) This decision to preclude interlocutory appellate jurisdiction for one category of anti-SLAPP rulings was within the Legislature's authority. ( In re Taya C. (1991) 2 Cal.App.4th 1, 7, 2 Cal.Rptr.2d 810 ["Because the Legislature has complete control over the right to appeal, it can restrict, change, withhold or even abolish that right."].)

The trial court here expressly denied defendants' anti-SLAPP ruling on the ground that "the commercial speech exemption under § 425.17 applies." We therefore need look no further to determine that we lack appellate jurisdiction over this appeal, and we must dismiss it.

The parties filed their appellate briefs in this case upon the assumption that we had jurisdiction. Because we appeared to lack jurisdiction due to the section 425.17 ruling, we requested and obtained supplemental letter briefs from the parties, who also addressed our jurisdiction at oral argument.

Defendants make three arguments concerning jurisdiction, none of which persuades us that we can or should assume jurisdiction over the appeal.

First, defendants argue that the case law does not squarely hold that we lack jurisdiction here. It is true that our Supreme Court's discussion of the nonappealability of section 425.17 denials in Varian came in the course of deciding a different issue and was not the Court's holding. But Varian nevertheless guides us, as "we will not reject dicta of the Supreme Court without a compelling reason." ( Howard Jarvis Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914, 925, 26 Cal.Rptr.3d 153.) Moreover, in Goldstein v. Ralphs Grocery Co. (2004) 122 Cal.App.4th 229, 230-231, 19 Cal.Rptr.3d 292 ( Goldstein ), the Court of Appeal squarely held that it was without jurisdiction to entertain an interlocutory appeal from a denial of an anti-SLAPP motion that was based on section 425.17.

Indeed, Goldstein correctly held that our court lacks jurisdiction even where the trial court not only denied the anti-SLAPP motion under section 425.17 but also denied the motion on the ground—which otherwise would create an appealable order—that the defendants' conduct was not covered by the primary anti-SLAPP provisions in section 425.16. ( Goldstein , supra , 122 Cal.App.4th at p. 231, 19 Cal.Rptr.3d 292.) The Legislature precluded interlocutory jurisdiction over an order denying an anti-SLAPP motion under section 425.17 by stating that the interlocutory appeal provisions "do not apply to that action or cause of action. " ( § 425.17, subd. (e), italics added.) A section 425.17 denial on a claim eliminates the right to an interlocutory anti-SLAPP appeal as to that claim.² As Goldstein , supra , at page 233, 19 Cal.Rptr.3d 292, stated, a section 425.17 denial means that "the immediate appeal right no longer exists." Moreover, a reading allowing us to address only the portion of the trial court's ruling denying the motion under section 425.16 would not make sense. Then, we would adjudicate the merits of defendants' claim that the conduct here arose from protected activity, even though a ruling for defendants would have no immediate effect, as the case would proceed in the trial court due to the court's finding (not now appealable) that the same conduct was exempt under ...