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Benton v. Benton

California Court of Appeals, Fourth District, Second Division

August 27, 2019

ALPHONSO BENTON et al., Plaintiffs and Respondents,
v.
CYNTHIA MORENO BENTON et al., Defendants and Appellants.

          APPEAL from the Superior Court of San Bernardino County No. CIVDS1502743 Janet M. Frangie, Judge. Dismissed.

          Pitre & Teunisse and Patricia A. Teunisse for Defendants and Appellants.

          Brown White & Osborn and Kenneth P. White 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 ...


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