California SLAPP Law

California recently turned defamation law on its ear, as regards calling the police. Let me set the scene with a hypothetical that will demonstrate what California has done.

You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guest’s cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.

Bob is quite a jerk, and is already on probation for a prior criminal offense. If he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.

He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”

Far beyond the cost, Bob’s lawsuit against you will give him all kinds of opportunities to harass you. His attorneys can make you spend most of your free time responding to discovery, and he can even make you show up at the time and place he chooses, and sit across a table from him while his attorney asks you personal questions at a deposition. Heck, he might even decide to take the deposition himself just so he can have the personal satisfaction of making you answer whatever questions he decides to ask you over the course of seven hours. He can bring in every person who was at your house and put them through the same experience.

The standard for what is relevant is very broad in litigation. Since his claim is that you made up the entire story about him vandalizing the car, he is permitted to try and determine what motivated you to do such a horrible thing. Do you have a thing for his wife, and were trying to get him out of the way? Or maybe you have a thing for him, and are mad that it is unrequited.

Since he will be seeking punitive damages, and such damages are based on your income and net worth, he can ask you to turn over all your financial information. There are protections against this, but you will spend thousands to have your attorney fight the discover demand in court.

Ultimately, you may decide that the cost of justice is just too high. You will go to Bob and tell him that you won’t testify to what you saw if he will dismiss his defamation action. Bob gets away with vandalizing your friend’s car, and you are out however much money you spent before you decided to cave.

Relax, it was just a nightmare.

Until this year, this scenario was entirely fictional. You see, for a statement to be defamatory, it must be UNPRIVILEGED. There are various types of speech that are privileged, even if false. One example is statements that are made in court. Imagine a scenario where a witness could be sued for defamation for what they say in court. They are compelled by subpoena to appear and testify, only to then be sued for defamation for what they said. This would be completely untenable, so California law prohibits legal action based on testimony in court.

The same was true of reports to the police. Specifically to avoid the sort of scenario discussed above, California Civil Code section 47, which establishes a number of privileges, prohibited actions based on reports to the police.

That did not mean that one could lie to the police with impunity. First of all, making a false police report is a criminal act, and could land the liar in jail. Further, if someone lied to the police about you, and you were charged and put on trial, but proved you were innocent, you could then sue the person for malicious prosecution.

But you could not sue that person for defamation, or infliction of emotional distress, or negligence, or any other claim. As confirmed by the California Supreme Court in Hagberg v. California Federal Bank, reports to the police are absolutely privileged, and cannot be the basis for any legal action. No one ever needed to worry about being sued because they called the police.

Now you need to worry.

But, insanely in my opinion, the California Legislature just decided to change all that with an amendment to Civil Code section 47.

The protective language is still there:

“A privileged publication or broadcast is one made: . . . (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law . . .” Case law has determined that part (3) covers reports to the police.

But the Legislature giveth and taketh away. Effective 2021, it added subpart (b)(5):

“(5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.”

To this some will respond (and the Legislature probably so reasoned) that there is nothing to worry about, so long as you don’t make a false report to the police. If that was your reaction, then you did not fully comprehend my long-winded hypothetical.

Even if your report to the police was as pure as the new-driven snow, that will not protect you from all the described harassment. Every criminal can now claim that the report against them was knowingly false, or was made with reckless disregard for the truth. Once the claim is made, it must be litigated.

Indeed, the new section extends beyond reports of criminal activity. The police have always been the public’s most direct contact with government. If the next door neighbor’s party is keeping you awake, call the police. You don’t want the neighbor arrested, you just want the police to tell them to turn down the music a little. Now you can be sued for that call because you claimed that the neighbor “was engaged in an activity requiring law enforcement intervention.”

And lest you think there will be some quick way to extricate yourself from this nightmare, there is not. For example, the motion that can sometimes get rid of a case before trial will be of no use. A motion for summary judgment cannot be granted if there is a material factual dispute. In our hypothetical, you could bring a motion for summary judgment on the grounds that your statement to the police was true, because you saw Bob vandalizing the car. But Bob will simply file a declaration saying he did not vandalize the car, and throw in a couple more from friends, claiming they saw him lounging in his pool the entire time. Triable issue; motion denied.

What about an anti-SLAPP motion?

The anti-SLAPP statute, Code of Civil Procedure section 425.16, contains that same protective language as section 47:

“(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law . . .”

I find it strange that the Legislature elected to create the right to sue for reports to the police by taking away the privilege in section 47, but left the protection unchanged in section 425.16. It would appear that the new found freedom to sue remains thwarted by the anti-SLAPP statute.

Or perhaps not.

Even though the wording is the same, case law holds that the protection (previously) afforded by section 47 does not serve the same purpose as that of section 425.16. Pointing to the latter section will determine whether the speech falls under the anti-SLAPP statute, but then that leads to the second prong, to determine if the plaintiff is likely to prevail. That will now be decided under the new section 47.

Plus, we again run smack into the evidentiary standards. For purposes of an anti-SLAPP motion, the evidence of the plaintiff is taken as true. The defendant’s evidence is reviewed only to determine whether it supports a defense that negates the claim. Going back to our hypothetical once again, the result will be the same. The plaintiff will provide a declaration stating that he never vandalized the car, and that must be taken as true. You are going to be in this action until the bitter end.

Callers love the change to the law.

For the many years I have handled free speech, defamation, and anti-SLAPP cases, I have received a steady stream of calls from potential clients wanting to sue for reports to the police. Prior to 2021, the response to such inquires was simple.  “You can’t sue for statements made to the police, no matter how false or vile. Calls to the police are absolutely privileged.” Callers were very disappointed.

Now I have to qualify that answer. “Calls to the police are privileged, and in almost all instances will not support a civil action, unless the person knew the report was false, or acted with reckless disregard for the truth.”

I cringe a little when I make that statement, because 100% of the time the caller will respond, “Oh, absolutely, they knew what they were saying was false,” but 98.7% of the time that turns out not to be the case. They don’t understand that even if the report was wrong, that doesn’t mean it was knowingly false.

Here is an example. A common scam used by criminals is to buy something in a store, and then using the receipt from that purchase, return to the store, load up the same item in a cart, and go to customer service for a refund of the purchase price. It is such a common occurrence that the customer service representatives get a little over zealous, and may think that is what is happening when it is not.

So you are innocently returning a TV you bought, because when you got it home you realized it was too big for your built in cabinet, and the store clerk accuses you of fraud. Understandably, you are mad that you would be accused of such a thing, and raise your voice to explain the situation. The clerk orders you to leave the store, and when you refuse, she calls the police. The police arrive and “trespass” you, meaning that they escort you from the store and tell you never to return.

You call an attorney, wanting to sue for defamation, because the clerk  made a false report to the police. After the privilege is explained to you, you are absolutely confident you can overcome the privilege, because the clerk acted with reckless disregard for the truth. She should have checked the security videos in order to see if you entered the store with the TV. And she could have come to your home to confirm that the TV was too big for the cabinet.

But the standard for “knowingly false” and “reckless disregard for the truth” is higher than that. As it turns out, when you entered the store, you saw that dollar section right next to customer service, and took about three steps to the right to look at the tchotchkes before proceeding to customer service. For that reason, when she saw you you weren’t coming from the direction of the front door. Also, she noticed that the TV box was unopened, and that you had purchased the TV just an hour earlier. She thought to herself, “How could he have determined that the TV was too big without even opening it, and done so that quickly?”

To these questions, you would have explained that you hadn’t measured before the purchase, and simply checked the dimensions from the box when you got home, and brought it right back. But because you raised your voice, she wasn’t really dealing with the suspected fraud, but just wanted you out. And checking the video isn’t really an option, because that requires someone from loss prevention to pull up the video, and they don’t work on Wednesdays.

So as you can see, the clerk did not know what she was saying to the police was false, and she did not act with reckless disregard, because there was no practical means to check out your story. If you sued for the false report to the police under these facts, you would be met with an anti-SLAPP motion, which would likely be granted, and judgment would be entered against you for all the attorney fees incurred by the store to bring the motion.

What was California thinking?

According to the notes of the legislation, the Legislators apparently thought this was a brilliant way to fight discrimination. You may recall the incident in Central Park, caught on video, where a white woman called 911 to report a black man who was complaining about her dog. I don’t know if the Legislators had that specific incident in mind, but it must have been something similar, based on the comments:

“(a) It is the intent of the Legislature to end instances of 911 emergency system calls that are aimed at violating the rights of individuals based upon race, religion, sex, gender expression, or any other protected class. Existing law on false police reporting does not address the growing number of cases in which peace officers are summoned to violate the rights of individuals for engaging in everyday activities, such as those individuals essentially living their lives.

“(b) All Californians, including people of color, should have the liberty to live their lives, and to go about their business, without living under the threat or fear of being confronted by police. These prejudicial 911 emergency system calls cause mistrust between communities of color and institutions, and those calls further deteriorate community-police relations. This is especially true when the police are summoned as forces of exclusion. Thus, it is incumbent upon the Legislature to end the use of law enforcement as a personal force by people who harbor discriminatory animus.

“(c) This act is not intended to discourage individuals who are facing real danger, who want to report a crime, or who are experiencing a medical or psychiatric emergency from making a 911 emergency system call for assistance. However, this act will allow those who have been subject to unfair and prejudicial 911 emergency system calls to regain their agency by seeking justice and restitution through the criminal and civil court system.”

This sounds like a laudable goal, but the amendment could have been tailored to better achieve that goal, without opening the floodgates to every criminal who wants to use civil actions as a means to harass genuine victims. How will they “regain their agency?”