California SLAPP Law

Although the legal community appears to have come far in the past 30 years as regards awareness of the anti-SLAPP statute, it is still often the case that when I bring an anti-SLAPP motion, the plaintiff’s attorney is caught totally unawares. Even in those cases where I have warned opposing counsel of my intention to bring the motion, it is usually apparent that they thought it would not be an issue, based on some miscomprehension of what the statute covers.

This leaves them to scramble to try and find some basis to challenge the anti-SLAPP motion, and in doing so they inevitably cite to one or more of the following three cases. Sadly, they almost always cite these cases in ways that do not apply.

I will identify the top three cases cited by defense counsel, and explain why they almost never apply.

I can amend. Please let me amend.

Coming in at the number three position, is the case of Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858.

Decisional law makes it very clear that a Plaintiff cannot amend their complaint to try and escape an anti-SLAPP motion. The motion freezes the pleading in time, and the analysis is based on the complaint as alleged. No take-backs; no “but what I really meant to say was . . .”

In a recent case, the Plaintiff’s complaint alleged that my client had published three separate reviews about his business, and sought damages for the reviews, claiming they were false and defamatory.

When I performed my anti-SLAPP analysis, I noted that the first of the three reviews had been published more than a year before the complaint was filed, meaning it was barred by the statute of limitations. On that basis, I sought to have that allegation stricken, and dealt with the other two publications on other grounds.

In response, Plaintiff’s counsel argued that the allegation had been offered only by way of background, claiming that it was so obvious that the statement was barred by the statute of limitations, that it could not seriously be perceived that Plaintiff was suing for that review.

In any event, Plaintiff’s counsel argued, to the extent that the court was inclined to strike the allegation, Plaintiff should be permitted to amend under the reasoning of Nguyen-Lam, to make clear that Plaintiff was not seeking damages for that particular review. This is the manner in which counsel typically tries to use Nguyen-Lam; citing it as some overarching rule that a complaint can be amended to address any issues raised by an anti-SLAPP motion.

The court disagreed, and granted my anti-SLAPP motion.

In another action, I had lost on the anti-SLAPP motion, but the Court of Appeal reversed and ordered the trial court to grant the motion. The Plaintiff, an attorney who was representing himself, then brought a motion to amend the complaint, adding a slew of new claims. He argued that Nguyen-Lam permitted him to do so.

The motion to amend was denied.

Nguyen-Lam was decided on a very narrow legal issue, and does not stand for the proposition that one can amend a complaint to avoid an anti-SLAPP motion. In the case, a Vietnamese former appointee for school board superintendent brought action against a person who allegedly told school board members that she was a Communist, for defamation. Defendant responded with an anti-SLAPP motion.

Part of the basis for the anti-SLAPP was that Plaintiff was a public figure, and had failed to allege that the Defendant had acted with actual malice. However, in opposing the motion, the Plaintiff had set forth sufficient evidence to satisfy the element of actual malice.

What was the court to do? While it was true that the complaint was technically insufficient because the Plaintiff had failed to allege actual malice, it was clear from the evidence that there was actual malice. Should the court turn a blind eye to the evidence, and dismiss the action because the complaint failed to allege all the elements? Normally when a complaint fails to allege a key element, it is attacked by way of demurrer, and the Plaintiff is afforded the opportunity to amend. Is it fair to dismiss a case for a missing element, just because the complaint was attacked by way of an anti-SLAPP motion as opposed to a demurrer?

Here is how the Nguyen-Lam court resolved the issue (quoting the reasoning of the trial court):

“Disallowing an amendment would permit defendant to gain an undeserved victory, undeserved because it was not what the Legislature intended when it enacted the anti-SLAPP statute.” The Legislature declared its purpose in enacting section 425.16 was to protect “the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a), italics added.) But false statements uttered with actual malice serve no public interest, and where the strike opponent has demonstrated the requisite probability of success in showing such malice, as here, her complaint falls outside the purpose of the anti-SLAPP statute—indeed, it is not a SLAPP suit at all. Simply put, the Legislature did not intend to shield statements shown to be malicious with an unwritten bar on amendment in the circumstances here. Consequently, the trial court did not err in permitting plaintiff to amend her complaint to plead actual malice in conformity with the proof presented at the hearing on the strike motion.

Thus, Nguyen-Lam does not stand for the wholesale proposition that a Plaintiff is free to amend their complaint in the face of an anti-SLAPP motion. To the contrary, the court recognized a “procedural quagmire” in allowing amendment to defeat the movant’s showing on the first prong of the anti-SLAPP statute. “Amendment in that circumstance would necessitate a fresh motion to strike, triggering inevitably another request for leave to amend, and thereby abetting the SLAPP plaintiff in his goal of delay and distraction and running up the costs of his opponent. Such a plaintiff would accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her resources. This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method for unmasking and dismissing such suits.”

But Nguyen-Lam focused on the second prong of the anti-SLAPP analysis, and concluded that if it is clear that the evidence is sufficient to show that the Plaintiff is more likely than not to prevail in the action, then it would serve no purpose to deny them their day in court.

In conclusion, Nguyen-Lam stands only for the proposition that if the evidence presented in opposition to the anti-SLAPP motion is sufficient to satisfy the second prong, then leave to amend should be granted.

Coincidentally, on the day I am writing this, I successfully defeated an anti-SLAPP motion based in part on Nguyen-Lam. I was brought in as the pro from Dover to fight the anti-SLAPP motion, which was based in part on a defective pleading. In a defamation action, privilege is actually an affirmative defense that the Defendant must allege and prove, but it should be alleged in the complaint that the statements were unprivileged. I never give it much thought – it’s just a boilerplate allegation I always include in my defamation complaints – but in this case counsel had failed to do so.

This presented the perfect application of the Nguyen-Lam holding. In opposing the anti-SLAPP motion, I presented evidence to show that the speech was unprivileged, and as a fallback position argued that should the court find that Plaintiff should have alleged that the speech was unprivileged, leave to amend should be granted. The court actually never addressed the issue of the amendment, but agreed that we were more likely than not to prevail on the action, and denied the anti-SLAPP motion.

But your Honor, he’s a lying dog-faced pony soldier!

The second most frequently cited case, cited in most every anti-SLAPP opposition, is Weinberg v. Feisel (2003) 110 Cal.App.4th 1122. In this case, a token collector sued the publisher of advertisement in token collecting newsletter for libel, slander, and intentional infliction of emotional distress after publisher told others that collector had stolen a collector’s item from him. The trial court denied publisher’s anti-SLAPP motion, and the publisher appealed.

Simply stated, causes of action arising out of false allegations of criminal conduct, made under circumstances like those alleged in this case, are not subject to the anti-SLAPP statute. Otherwise, wrongful accusations of criminal conduct, which are among the most clear and egregious types of defamatory statements, automatically would be accorded the most stringent protections provided by law, without regard to the circumstances in which they were made—a result that would be inconsistent with the purpose of the anti-SLAPP statute and would unduly undermine the protection accorded by paragraph 1 of Civil Code section 46, which includes as slander any false and unprivileged communication charging a person with a crime, and the California rule that false accusations of crime are libel per se (Civ.Code, § 45a; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 482, p. 566).

Because defendant failed to demonstrate that the challenged causes of action arose from protected activity, the trial court properly denied defendant’s special motion to strike.

From this reasoning, counsel routinely argue that any defamation action is somehow outside the anti-SLAPP statute. But in reality, Weinberg v. Feisel really adds nothing to the anti-SLAPP analysis.

“Defendant did not report his suspicions to law enforcement, and there is no evidence that he intended to pursue civil charges against plaintiff. Rather, it is alleged that defendant began a private campaign, so to speak, to discredit plaintiff in the eyes of a relatively small group of fellow collectors. Since the record does not support a conclusion that plaintiff is a public figure or that he has thrust himself into any public issue, defendant’s accusations against plaintiff related to what in effect was a private matter. Under the circumstances, the fact that defendant accused plaintiff of criminal conduct did not make the accusations a matter of public interest.”

Thus, Weinberg was a simple first prong analysis. The court found that this private dispute between Feisel and Weinberg was not a matter of public interest, and therefore did not fall under the anti-SLAPP statute. The court simply made the obvious observation that claims of criminal conduct do not automatically become matters of public interest. If such was the case, then every false claim of criminal conduct would be afforded special speech protections.

For this reason, there is no foreseeable situation where the reasoning of Weinberg could assist in defeating an anti-SLAPP motion. If the defamatory speech in question satisfies the first prong of the anti-SLAPP analysis, then the only issue is whether the Plaintiff’s evidence is sufficient to satisfy the second prong. Weinberg does not hold that defamatory speech is not subject to the anti-SLAPP statute; the proposition for which is it always cited.

The speech was illegal!

And the number one case attorneys cite is . . . drum roll . . . Flatley v. Mauro (2006) 39 Cal.4th 299.

Flatley was an attempted money grab, where the attorney acted so horrifically it was considered to be extortion. I will set forth the details at length because one must fully appreciate the conduct of Mauro in order to fully understanding the holding of Flatley.

Michael Flatley was a performer and dance impresario who owned “the stock of corporations that present live performances by Irish dance troupes throughout the world.” On March 4, 2003, Tyna Marie Robertson sued Flatley in Illinois for battery and intentional infliction of emotional distress based on allegations that Flatley had raped her in his hotel suite in Las Vegas on the night of October 19-20, 2002. Robertson was represented by D. Dean Mauro, an Illinois attorney. Robertson and Mauro then appeared on television, where Robertson described the alleged rape “in extremely lurid detail.”

On March 6, 2003, Flatley filed his complaint in the present action in California against Mauro, Robertson and Doe defendants. In a second amended complaint, Flatley alleged five causes of action for civil extortion, defamation, fraud, intentional infliction of emotional distress, and wrongful interference with prospective economic advantage. The civil extortion, intentional infliction of emotional distress and wrongful interference causes of action were alleged against all defendants; the defamation and fraud causes of action were alleged against Robertson alone.

Mauro answered with a general denial and asserted various affirmative defenses including that Flatley’s claims were barred by section 425.16, the anti-SLAPP statute. On August 1, 2003, Mauro filed a motion to strike Flatley’s complaint under that statute.

Flatley’s opposition to the motion argued that Mauro’s communications constituted criminal extortion and were therefore not protected by the anti-SLAPP statute. He argued further that he could demonstrate a probability of prevailing on the merits. In support of his opposition, Flatley filed several declarations, including his own and those of his personal secretary, Thomas Trautmann, and his attorneys, John Brandon, Bertram Fields, and Richard Cestero. The declarations submitted by Flatley set forth the following scenario:

Flatley met Robertson in Las Vegas sometime before October 2002. Robertson was very friendly and Flatley gave her the telephone number of his personal secretary, Thomas Trautmann in the event she wanted to reach Flatley.

In October 2002, Robertson called Trautmann to arrange a rendezvous with Flatley. On October 19, 2002, Robertson arrived at Flatley’s two-bedroom suite in the Venetian Hotel in Las Vegas. She was told that one room was for Flatley and the other was for Trautmann. Robertson put her belongings in Flatley’s bedroom. She did not request alternate accommodations or protest the accommodations offered.

That evening, Flatley and Robertson had dinner together. Upon returning to Flatley’s hotel room, Robertson excused herself to the bathroom. Flatley disrobed and got into bed. Robertson reappeared, nude, and entered Flatley’s bed, where she remained for the night. According to Flatley, everything that transpired between him and Robertson that night was consensual. At no time did Trautmann, who was in the next room with the door open, hear any cry or complaint of any kind.

The next morning, Robertson entered the common area of the suite, and kissed Flatley in Trautmann’s presence. Her demeanor was relaxed and happy. She ate breakfast with Flatley, speaking affectionately to him and cordially to Trautmann. Upon leaving, she kissed Flatley again and said she hoped to see him again.

On January 2, 2003, Mauro sent a letter addressed to Flatley that was received by Flatley’s attorney, John Brandon. The letter emphasized certain text, using various font sizes, boldface type, capital letters, underlining, and italics.

Quick aside: Even before becoming an attorney, I always abided by the rule that you should view everything you write as a possible trial exhibit. Picture what you are typing as an exhibit that will be projected onto a large screen and scrutinized by strangers. As you will see, with his letter, Mauro was asking for ONE HUNDRED MILLION DOLLARS to settle a very weak and implausible case. Any chance at settlement required that the letter be taken as seriously as possible. Yet he sent out a letter that was full of typos and misspellings. You’d think for the chance at $100,000,000, he would have taken the time to proofread the letter. The letter is attached to the court decision, if you want to take a look. Now, back to our story:

In small print, the letter stated: “This communication is governed by all applicable common law decisions of the State of Illinois and Rule 408 of the U.S. Federal Rules of Evidence. All information contained herein is for settlement purposes only.” The subject line stated in all-capital, boldface, underlined type: “LAWSUIT AGAINST MICHAEL FLATLEY, INDIVIDUALLY, AND UNICORN ENTERTAINMENT, INC., AND THE VENETION [sic] RESORT–HOTEL–CASINO VENTURE GROUP. ” Mauro identified his client as “Jane Doe” and referred to a report on file with the Las Vegas Police Department. The next line stated “Date of Rape/Sex Assault: October 19–20, 2002.”

The letter was addressed: “DEAR FLATLEY, et. al. [sic ] [¶] Please be advised that we represent a women [sic ] with whom you engaged in forcible sexual assault on or about October 19-20, 2003 [sic: 2002]. Please consider this our first, and only, attempt to amicably resolve this claim against all Defendants named in the Complaint at Law enclosed herein.”

On the second page, a large caption announced “NOTICE OF CLAIM & ATTORNEY’S LIEN ”. The letter continued: “Please consider this as Notice of our Attorneys’ [sic ] Liens. We hereby make a claim and lien in the amount of 40% of the Total Recovery of all funds obtained through trial or settlement, plus all costs of suit, and attorney fees leveled against you.” After urging Flatley to contact his insurance carrier, the letter states “Tell them to contact me directly.” It warns that Flatley’s failure to do so will result in the filing of a lawsuit and that “all judgment proceeds” will be sought “directly from your personal assets.” The letter then states: “You are granted until January 30, 2002, [sic: 2003] to resolve this matter. The amounts claimed in the lawsuit are naturally negotiable prior to suit.” The letter warns, however, that if Flatley fails to meet the January 30 deadline “all offers to compromise, settle and amicably resolve this case will be automatically withdrawn.” The letter then goes on to “advise” Flatley that Mauro has retained “several forensic expert witnesses” whose opinions “shall be disclosed in detail in the public filed court documents in this litigation.” Mauro also advises Flatley that he has “worked at Lloyd’s of London, and is familiar with International Law. These causes of action allow for PUNITIVE DAMAGES. Punitive Damages are non-dischargeable in bankruptcy, and are recognized under British Law. We can therefore execute and collect any award against MICHAEL FLATLEY personally in the U.S., or the U.K.” Next, Mauro refers to his expert “Economist Frank Maguire” who will testify “as to the amount of punitive damages which the law recognizes to justify ‘sending a message’ or what constitutes a ‘deterrent.’ ”

The first paragraph of the third page of Mauro’s letter refers Flatley to a “settlement of $100,000,000.00” awarded as punitive damages in an unidentified case. The second full paragraph then states that an investigation into Flatley’s assets for purposes of determining an appropriate award of punitive damages, will require “an in-depth investigation” and that any information would then “BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT, as it will be part of the bases of several of our expert’s [sic] testimony.” The third paragraph states in its entirety: “Any and all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find.” After a paragraph describing the potential testimony of two other experts, John Lombardi and David K. Hirshey, apparently with respect to the failure of the Las Vegas hotel in which the alleged rape occurred to “provide requisite safeguards for our client,” the fifth paragraph again warns that “all pertinent information and documentation, if in violation of any U.S. Federal, Immigration, I.R.S., S.S. Admin., U.S. State, Local, Commonwealth U.K., or International Laws, shall immediately be turned over to any and all appropriate authorities.” The final paragraph warns that once the lawsuit is filed additional causes of action “shall arise” including “Defamatory comments, Civil Conspiracy, Reckless Supervision” which are “just the beginning” and that “ample evidence” exists “to prove each and every element for all these additional causes of action. Again, these actions allow for Punitive Damages.”

At the top of the final page of the letter is the caption: “FIRST & FINAL TIME–LIMIT SETTLEMENT DEMAND.” Beneath it a paragraph warns that there shall be “no continuances nor any delays. If we do not hear from you, then we shall know you are not interested in amicably resolving this claim and we shall immediately file suit.” At the bottom of the page, beneath Mauro’s signature, a final paragraph warns Flatley that, along with the filing of suit, press releases will be disseminated to various media sources, including but not limited to “Fox News Chicago, Fox News Indiana, Fox News Wisconsin, and the U.S. National Fox News Network; WGN National U.S. Television; All Local Las Vegas Television, radio stations and newspapers; The Chicago Tribune, The Chicago Southern Economist, The News Sun, The Beacon News, The Daily Herald, The New York Times, The Washington Post; ALL National U.S. Television Networks of NBC, ABC and CBS; as well as INTERNET POSTINGS WORLDWIDE, including the BRITISH BROADCASTING COMPANY, and the Germany National News Network Stations.”

Attached to the letter were 51 pages of material, including a draft of Robertson’s complaint against Flatley, Robertson’s medical records pertaining to treatment for the alleged rape, certificates of achievement awarded to Mauro, newspaper articles chronicling Mauro’s multimillion-dollar cases and settlements, and the curricula vitae of Mauro’s experts.

Among the attachments was a letter Robertson wrote to the Las Vegas Police Department on November 17, 2002. The letter refers to a telephone call she had made to the police department on November 14 in which she reported the rape. She asked that the letter, which described the rape, be added to the earlier report because she “did not get an adequate opportunity to explain.” She added, however, that she had no “interest in seeing the Initial Incident Complaint form,” because she was “a private person, and this is not something about which I can openly or freely explain to people.” She also wrote that she could not at that time go into “more specific, or graphic details” because she was not “in any condition to relive this.”

The record does not show that Robertson provided any additional information to the police, or that the police took any action regarding her allegation. According to Flatley’s and Trautmann’s declarations, no one in the Las Vegas Police Department contacted either Flatley or his representatives about the allegation and Flatley remained unaware of the allegation until Brandon received Mauro’s letter.

Upon receipt of Mauro’s letter, Brandon immediately called Mauro. Mauro gave Brandon a deadline of January 30, 2003, “to offer sufficient payment.” On January 9, 2003, Mauro telephoned Brandon to complain that he had not heard from Flatley or Flatley’s representatives. Brandon explained that he was not handling the matter but offered to pass along any message. Mauro told him that he would not extend the January 30, 2003 deadline. He added: “I know the tour dates; I am not kidding about this; it will be publicized every place he [Flatley] goes for the rest of his life.” He added that dissemination of the story “would be immediate to any place where he [Flatley] and the troupes are performing everywhere in the world.”

On January 10, 2003, Mauro again called Brandon, who was in a meeting, and left a message with Brandon’s secretary. The message read: “Dean Mauro needs a call back in one-half hour, otherwise they are going public.” When Brandon returned Mauro’s call, Mauro “complained that people were investigating the matter before contacting him and were doing so in an intimidating manner. He said that if he did not receive a call by 8 p.m. Central Standard Time …, he would ‘go public and the January 30 deadline is gone.’ ” He said, “I already have the news media lined up” and would “hit him [Flatley] at every single place he tours.” Brandon read this back to Mauro to confirm its accuracy. When Brandon asked Mauro why he was concerned about Flatley’s attorneys investigating Robertson’s claim before making an offer, Mauro stated that this “case is like an insurance claim where the adjuster would call the lawyer to acknowledge the attorney’s lien.” Brandon asked Mauro if acknowledging the lien was a problem. Mauro said “never mind about that, just pass on the message.” Brandon conveyed the message to Bertram Fields, the attorney handling the matter for Flatley.

Fields called Mauro later that day. Mauro told Fields he knew how to “play hardball” and that if Flatley did not pay an acceptable amount, he and Robertson would “go public.” Mauro said he would ensure that the story would follow Flatley wherever he or his troupes performed and would “ruin” him. Fields asked Mauro how much he was demanding and Mauro replied “it would take seven figures.”

Fields reported Mauro’s conduct to the FBI and arranged for Flatley to give the FBI a voluntary interview without the presence of counsel. Hoping to allow the FBI more time to investigate, Fields wrote Mauro asking him to extend the deadline. Mauro extended the deadline by one day in a letter that complained that Fields had failed to return Mauro’s numerous messages. “You have my personal cell phone number, on 24 hours daily, and we still have received no substantive conversation of any kind for nearly a month.”

Flatley did not pay Robertson and Mauro.

Mauro’s reply to Flatley’s opposition to the motion to strike argued that his January 2, 2002 letter was a prelitigation settlement offer in furtherance of his constitutional right of petition and, therefore, protected by section 425.16, subdivision (e)(1) and (4). He argued further that Flatley had failed to demonstrate a probability of prevailing on any of his causes of action.

On September 22, 2003, the trial court denied Mauro’s motion to strike. It found that Mauro had not satisfied his initial burden to show that his communication was protected by section 425.16. Mauro appealed (§ 904.1, subd. (a)(13)), and the Court of Appeal affirmed, holding that, as a matter of law, Mauro’s communications constituted criminal extortion and therefore were not protected under section 425.16. The Court of Appeal did not address whether Flatley had demonstrated a probability of prevailing on the merits. We granted Mauro’s petition for review.

So, in very short summary, Flatley stands for the proposition that the anti-SLAPP statute does not protect illegal activity. Thus, in opposition to most every anti-SLAPP motion I have filed, the other side cites to Flatley, and argues that the conduct in question was illegal.

It almost as though the attorneys only read the Cliff Notes, and don’t actually understand the holding of Flatley.

For example, I will often proceed a defamation action with a demand letter. To make the letter more impactful, I sometimes include the draft complaint. From this, the defendant can see that we have already taken the time to draft the complaint and are ready to pull the trigger, and that this is not a situation where we may or may not pursue the case beyond the demand letter. In essence, my letter simply states that the facts, as I know them, are set forth in the complaint, and if any of those facts are incorrect, the defendant should contact my office. I specifically explain that as attorney can only know the facts as provided by the client, and this is the opportunity for the defendant to let me know if I have been misinformed. It is how I perform my due diligence before actually filing the case.

Incredibly, some defense attorneys have argued that my letter, like that in Flatley, amounted to extortion, specifically because I attached the draft complaint. After all, Mauro attached a draft complaint, so any time an attorney attaches a draft complaint, it must be extortion, they reason.

Demand letters are specifically protected by the anti-SLAPP statute, because they relate to pending litigation. Attaching a draft complaint does not alter that equation.

Mauro did not step over the line into extortion because he attached a draft complaint; the extortion came from the threats to “line up the media” and to “follow Flatley around to all his performances.” Such threats do not relate to the litigation.

But when the “you attached a complaint so it is extortion” argument does not apply, every defense attorney argues that something my client did was illegal.

My favorite example arose from a city council meeting. At the meeting, one of the council members took umbrage with something my client had said, and sued for defamation. There could not be a clearer example of protected speech. Statements made at a city council meeting are specifically protected by Code of Civil Procedure § 425.16(e).

So, faced with my anti-SLAPP motion, the attorney for the council member desperately sought to find a way to make the statement at the meeting illegal under the reasoning of Flatley. The best he could come up with was a memo that had been issued by the City Manager, which outlined how meetings should be held. In that memo, which had no force of law, the City Manager had stated that comments from the lectern should be “civil.” The attorney argued that my client’s comments had not been civil, and were therefore illegal.

Not once, in any of the oppositions to my anti-SLAPP motions, has the Flatley v. Mauro argument been successful. Flatley remains good law, and can certainly be relied upon under a proper fact pattern. But the conduct must actually be illegal, and at least in all of my cases, such has never been the case.