Bartsch v. Regents
Filed 2/8/06 Bartsch v. Regents CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
| STEPHAN BARTSCH, Plaintiff and Respondent, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Appellant. | C049752
(Super. Ct. No. CV041913)
|
The plaintiff, Dr. Stephan Bartsch, filed a complaint for breach of contract against the defendant, Regents of the University of California, served it with interrogatories and thereafter filed an amended complaint adding a second cause of action for defamation predicated upon defendant's answers to the interrogatories. Defendant demurred to both causes of the amended complaint, and filed a special motion to strike the second cause of action, together with a request for attorney fees, on the ground the action was barred as a strategic lawsuit against public participation (SLAPP). (Code Civ. Proc., § 425.16, subd. (c).)[1] The trial court sustained the demurrer without leave to amend but declined to rule on the special motion. Plaintiff filed a notice of appeal from the dismissal of the action following the sustaining of the demurrer. The appeal was dismissed for failure to pay the filing fee. (Cal. Rules of Court, rule 1(c)(5) (hereafter rule).) That leaves defendant's appeal. We will treat the defendant's appeal of the trial court's refusal to rule on the special motion as an appeal from an order denying the special motion as moot, an order that is subject to appeal pursuant to section 904.1. (§ 425.16, subd. (i).)
On appeal defendant claims the trial court's refusal to rule on its special motion and request for attorney fees was clear error and, because the motion was meritorious, defendant is entitled to attorney fees pursuant to section 425.16, subdivision (c). We agree with defendant.[2]
We shall reverse the order and remand the case to the trial court with directions to grant defendant's special motion and award defendant its attorney fees and costs on the second cause of action.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a lawsuit against defendant for breach of contract in connection with his limited term of employment with the University. He served defendant with a set of interrogatories. After defendant responded to the interrogatories, plaintiff amended his complaint to include a second cause of action entitled â€
