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Forum Shopping Can Avoid Anti-SLAPP Statute

Anti-SLAPP Forum Shopping

About 30 states have anti-SLAPP statutes, and applying some sophisticated mathematical algorithms, that means there are about 20 states that don’t have anti-SLAPP statutes. This reality has led to the completely predictable phenomenon of forum shopping to avoid anti-SLAPP protections. If you are a public figure, or want to avoid protected speech issues, head to a state with no anti-SLAPP law.

One popular destination is good old Virginia. Ironically, Virginia’s motto is Sic semper Tyrannis, meaning “thus always to tyrants.” Virginia is a good place for tyrants to go so their lawsuits can’t be challenged. (It’s actually a shortened version of a Latin phrase meaning, “thus always I bring death to tyrants,” but my tortured version works better in the context of this article.)

Without any editorial comment intended as to their motives or the merits of their actions, it happens that Congressman Devin Nunes filed a defamation action in Virginia against Twitter and a parody account called “Devin Nunes’ Cow.” And Johnny Depp filed a defamation action against his ex-wife, Amber Heard, for an opinion piece she wrote for The Washington Post, discussing her alleged domestic abuse. She actually never mentioned Depp by name in the piece, but given their well known marital controversy, the bread crumbs were not hard to follow.

To be perfectly accurate, Virginia is technically one of the 30 states that does have an anti-SLAPP statute, but it is extremely limited, basically applying only to “statements made . . . at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body.” And even those statements are not protected if malice can be shown.

Virginia is attempting to limit this forum shopping by creating a real anti-SLAPP statute along the lines of California’s statute. So far, the efforts have been unsuccessful. Maybe the Legislators like having celebrities come to town for their trials.

Bottom line. If you need to avoid California’s anti-SLAPP statute, and you have some jurisdictional basis to bring your action in a state without an anti-SLAPP statute, this is an option open to you. At least until all 50 states have such statutes.


Judges Don’t Understand SLAPP Law

Ready for the most self-aggrandizing article you’ve eve read? What will surprise you even more is that it arises from a motion and appeal that I lost.

Here’s the self-aggrandizing part up front. I think my understanding of SLAPP law now surpasses the ability of judges and justices to understand. Or at least my ability to make them understand. Like Sheldon Cooper trying to explain string theory to Penny. At least that’s my argument and I’m going to stick to it. As the following story indicates (at least to me, being a legend in my own mind), I just see things others cannot.

Here’s the greatly altered fact pattern (to protect the innocent).

My client accused someone of being a bank robber on social media, and notified the police that said that person had robbed a bank. That party took umbrage with being called a bank robber, and sued for defamation. Part of the defamation he alleged was the report to the police.

Now some quick background to set the scene.

Many years ago I was retained to handle an appeal from a defamation case. The defendant had been hit with a one million dollar judgment arising from three alleged wrongs. He had (1) said bad thing about the plaintiff at an HOA meeting, (2) he had said bad things about the plaintiff to the police, and (3) he had allegedly crank called the plaintiff on a number of occasions.

As you probably immediately recognized, items 1 and 2 are clearly protected activities. Speech at an HOA meeting is protected speech under Civil Code section 425.16, as is a call to the police. These allegations should have been stricken, leaving only the crank phone calls.

But it did not play out that way. The attorneys had filed an anti-SLAPP motion, but this was before Beral v. Schnitt, and the judge ruled that the case could go forward since some of the allegations were not protected. He noted, however, that he was going to limit the case to just the prank phone calls, since the other allegations arose from protected speech.

Unfortunately, as is often the case, when it came time for trial, that judge was otherwise occupied and the case was reassigned to another judge. With no understanding of defamation law and privileges, the new judge didn’t limit the case to just the prank calls. The attorneys could not make the judge understand the applicable law, and he let all the issues go to the jury. He denied the motions in limine, and he even denied the proffered jury instructions that would have explained the concept of privilege.

Thus, the jury was allowed to award damages for the statements made at the HOA meeting, the statements made to the police, and the crank phone calls. If limited to the crank phone calls, this likely would have been a $1,000 judgment, but the jury was inflamed by the protected speech, and gave the huge award on that basis.

The lesson I learned from handling the appeal on this case is that you must strike these allegations by way of an anti-SLAPP motion, because they may escape every other challenge, with disastrous results.

Back to the alleged bank-robber. Read the rest of this entry »


‘American Hustle’ Producers Can’t Nuke Defamation Lawsuit – Hollywood Reporter

Paul Brodeur, a science writer who claims he was defamed by something Jennifer Lawrence said in David O. Russell’s 2013 film American Hustle, has survived an attempt to knock out his $1 million lawsuit on First Amendment grounds.


This is such an entertaining and ridiculous lawsuit.

In the movie American Hustle, Jennifer Lawrence plays a character named Rosalyn. The movie is set in the 70s, when microwave ovens were still relatively new, and Rosalyn makes the statement that microwaves cook the nutrition out of food. When another character questions that claim, she holds up a magazine and responds, “I read it in an article by Paul Brodeur.”

Paul Brodeur is a real person, and claims that the fictional statement from a fictional character hurts his reputation. During the 70s, Brodeur wrote about the dangers of microwave ovens, but he never stated that they take the nutrition out of food, and he therefore claims that the idea that he would have written this (fictional) article stating that food loses its nutrition when cooked in a microwave is akin to having Carl Sagan say that the sun revolves around the earth.

Brodeur should have been flattered that anyone remembered him, and laughed at the joke, but this is America, so he sued for a million dollars, claiming the statement was defamatory. The movie makers responded with an anti-SLAPP motion.

At the time, I gave the motion little chance of success, because I didn’t think the movie makers would be able to meet the first prong of the anti-SLAPP analysis, and show that this was a matter of public interest. Apparently the judge agreed, and denied the motion.

[UPDATE (June 6, 2016):] Cases such as this continue to show the importance of the automatic right of appeal, even from denial of an anti-SLAPP motion.

Paul Brodeur’s ridiculous lawsuit survived an anti-SLAPP motion, dooming the defendant (Atlas Entertainment, Inc.) to litigate issues through trial, were it not for the automatic right of appeal. That ability to demand a second look at the applicability of the anti-SLAPP statute resulted in the dismissal of this waste of court resources.

As it had to, the Court of Appeal held: Read the rest of this entry »


Bill Cosby to Give New Deposition in Janice Dickinson’s Defamation Lawsuit

Bill Cosby will give a new deposition in the defamation lawsuit from Janice Dickinson over her allegations of sexual assault.

The former supermodel told Entertainment Tonight in November 2014 the comedian drugged her into unconsciousness and raped her. Cosby’s former attorney Martin Singer responded in a statement to the media calling Dickinson’s story “an outrageous defamatory lie” and “completely fabricated.”

In a hearing Monday, judge Debre K. Weintraub ordered Dickinson will depose Cosby and Singer by Nov. 25 on whether they knew if her allegations were true before denying them to the press. The testimony will follow Cosby’s recent deposition in Judy Huth’s lawsuit (which will be sealed until a Dec. 22 hearing in which the sides will argue if the testimony should be public).

Sourced through from:


Recent developments in one of the actions against Bill Cosby illustrate the availability of limited discovery after an anti-SLAPP motion has been filed, and how defamation claims are sometimes used to resurrect actions that would otherwise be barred by the statute of limitation.

Joining the bandwagon of Cosby accusers (or perhaps she was the first) Janice Dickinson stated that she was drugged and raped by Cosby many years ago. Any action for that alleged assault would be far past the statute of limitations, but when Cosby denied the allegations, Dickinson was then free to sue for defamation, claiming that by denying that the rape had occurred, Cosby was in essence calling her a liar. (Or in this case, Cosby’s attorney actually did call her a liar.)

This is a common tactic, and puts an accused party in a precarious position. They can remain silent, in which case everyone will think and the press will report that they must be guilty since they are not denying the charges, or they can speak up and deny the charges, in which case they face a defamation action. Cosby chose to claim innocence, and the defamation suit followed.

Cosby responded with an anti-SLAPP motion, and that led to Dickinson’s request for leave to take Cosby’s deposition.

Celebrities enjoy a benefit that the rest of us plebes don’t, and that is that anything said about them is deemed to be a matter of public interest, triggering the anti-SLAPP statute. The downside is that said celebrities are deemed to be public figures, and given the inherent ability of celebrities to respond to criticism by simply calling a press conference, the law imposes an extra requirement on them to prove defamation. To successfully sue for defamation, they must show that the purportedly defamatory statements were made with malice. Since Dickinson is also a celebrity, she must therefore show that when Cosby called her a liar, he did so with malice.

One way to prove malice is to show that the person making the comment knew it wasn’t true. And thus we go full circle. Dickinson says Cosby raped her, Cosby says he didn’t, so Dickinson says that’s proof of malice because he raped her and knows it.

When an anti-SLAPP motion is filed, the plaintiff can request leave to conduct discovery, and here Dickinson requested leave to take Cosby’s deposition, to prove the malice. It’s a long shot, because the only way Cosby’s testimony would prove malice is if he admits that he raped Dickinson and knew he had raped her when he denied the claim. (Or, I suppose, Cosby could get befuddled and say he doesn’t remember.)

See on Scoop.itCalifornia SLAPP Law


Singer/actress Ronee Blakley must pay $200K to former lover

A judge ordered singer/actress Ronee Sue Blakley to pay more than $200,000 in attorneys’ fees to her former lover, who won dismissal earlier this year of a lawsuit alleging he based the character of an abusive mother on his ex-flame when penning the screenplay for the  film “What Maisie Knew.”

Los Angeles Superior Court Judge Rafael Ongkeko granted $209,670 to writer Carroll Cartwright on June 5, the same day he heard arguments on the motion for attorneys’ fees brought by Cartwright’s attorneys. He also ordered Blakley to pay Cartwright an additional $1,840 in associated legal costs.

Sourced through from:

At least three times a week, I end a telephone conversation with the following statement, after concluding that the legal action the caller is proposing would be met with an anti-SLAPP motion:

“I’m sure you can find any number of attorneys who will happily take your money to pursue this action, but I think you will be met with a successful anti-SLAPP motion if you move forward. If you do find an attorney willing to take this case, please ask them how they will deal with the anti-SLAPP motion. If they can’t provide a good answer, don’t pursue the case.”

This was one of those cases. Ronee Sue Blakley found an attorney to pursue the case, it was met with an anti-SLAPP motion, and Blakley is now paying the price.

Consider the theory of this case. Blakley dated someone for five years way back in the 80s, and 35 years later when said significant other wrote a screenplay about a fictional character, Blakley claimed the fictional character was based on her, and that the characterization was defamatory.

I never understand this reasoning. I recently received a call from a woman who was convinced that a person portrayed as an incompetent parent on a popular sitcom was based on her. (She knew one of the writers, and felt that he was using her as a model.) But if she wasn’t an incompetent parent, then why would she think that other people would assume this incompetent parent was her? Even if the character was based on the caller, that is irrelevant unless the people watching the sitcom would understand the connection.

The court in the Blakley case came to the same conclusion. The judge found that a reasonable viewer of the movie would not see any similarities between Blakley and the character.

After granting the anti-SLAPP motion, the court awarded defendant $209,670 in attorney fees, representing 476 hours of attorney time. A high price to pay to take a run at such a thin claim.

See on Scoop.itCalifornia SLAPP Law


SCOCA grants review in pivotal anti-SLAPP case

On May 13, 2015, the California Supreme Court granted review in Baral v. Schnitt to resolve the divide among lower courts regarding whether anti-SLAPP motions can strike so-called “mixed” causes of action.


This is a very important case in the anti-SLAPP world, and the Supreme Court may finally clear up the competing decisions as regards mixed causes of action.

Here is how these causes of action typically arise. A homeowner is having a dispute with a neighbor and sues for harassment and infliction of emotional distress, alleging that the neighbor has made false police reports, called child protective services, and has left dog poo on his lawn.

Of those allegations, two are protected activities — calling the police and child protective services. The third, involving the dog poo, is not. So if the neighbor brings an anti-SLAPP motion, how should the court deal with these mixed causes of action?

Some courts have held that the entire claim falls under the anti-SLAPP motion, while others have held that the protected activity allegations should be stricken. Others still have held that the claim survives. Hopefully, this review by the California Supreme Court will finally resolve the issue.

See on Scoop.itCalifornia SLAPP Law


Libel Lawsuit against NYTimes for Slavery ‘Not So Bad’ Comments Dismissed

The New York Times won’t be sued for libel over its article quoting a Loyola professor saying slavery was “not so bad,” the Columbia Journalism Review reported.

The professor, Walter Block, said the Times took his comments “out of context” and suggested he “is a racist, a supporter of slavery, and/or against the Civil Rights Act … solely because of racial prejudices,” the judge’s ruling stated.


This is another example of how, in a defamation action, the speaker gets to define his own words.

It sometimes comes up in my practice that I get a call from a potential client who wants to sue for defamation because someone referred to him as a “stalker”. The caller has looked up the criminal code section that defines “stalker”, and argues that he does not meet the elements, making the accusation false.

That analysis would only be true if the alleged defamer said or wrote, “Joe is a stalker as defined by the criminal code.” But if the defamer merely stated, “Joe is a stalker,” then what he meant by that is crucial. Stated another way, Joe does not get to define the term used by the defamer, unless that definition is reasonable.

This case presented that issue, with an additional layer. Here, a college professor was talking about slavery, and from a specific context, said it was “not so bad.” The reporter from the New York Times who reported on the comment, said that the professor had stated that slavery was “not so bad”, but really didn’t provide the context.

The professor sued for defamation, stating the newspaper article took him out of context; that he didn’t really mean to say that slavery was not so bad.

But here’s the thing, Professor. We don’t have to agree with your interpretation. I get that in your mind, you were attempting to make the point that from an external viewpoint, slaves were fed and clothed, and even got to sing in the fields as you put it, in order to make the point that what made slavery so horrific was its involuntary versus voluntary nature. But the author is free to decide that even in that context, your comment exhibits extreme insensitivity.

The NYT brought an anti-SLAPP motion on that basis, and the trial judge agreed and dismissed the action. “The Court finds that the references made to Block are not capable of defamatory meaning, nor do they place him in a false light,” the judge wrote.

See on Scoop.itCalifornia SLAPP Law


Governor signs anti-SLAPP bill, protecting calls to police from retaliation

A dispute over a campaign sign in 2010 in rural Washington County was the impetus for a new law that will protect a person who calls the police from being sued.


Sometimes the law seems so self-evident, until you see a case in another state that does not afford the same protections as California.

I get innumerable calls from potential clients wanting to sue for what they contend were false police reports. In California, calls to the police are protected speech, even if false. Apparently not so in Minnesota, and this case illustrates why it is a really bad idea to allow a criminally charged defendant to use civil court as a means to badger his accusers. At least Minnesota has seen the error of its ways and is amending the anti-SLAPP law.

See on Scoop.itCalifornia SLAPP Law


C.A. Upholds Ruling in Suit by Customer Claiming False Arrest

Prison inmate isolated on the white

A finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony, the Court of Appeal for this district ruled yesterday.


Great case, discussing the elements of malicious prosecution.

I get many calls from clients wanting to sue for defamation and/or malicious prosecution after they are found not guilty of a criminal charge (or if the District Attorney decides not to pursue the case). As this case makes clear, a finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony.

The Court of Appeal ruled that case law has long held that a magistrate’s ruling at the preliminary hearing that prosecutors presented sufficient evidence to bind a defendant over for trial is preclusive on the issue of probable cause on a subsequent malicious prosecution claim.

The justice acknowledged on exception. There can still be a claim for malicious prosecution when the magistrate’s ruling is procured by false testimony, but the exception does not apply where the magistrate directly determined that the allegedly false witness was credible. “Accordingly, the magistrate’s probable cause determination, based on its credibility finding that Casasola testified truthfully about plaintiff’s threat, was sufficient to invoke collateral estoppel.”

It is a really tough burden to pursue a malicious prosecution action based on a criminal prosecution.


See on Scoop.itCalifornia SLAPP Law


Sony, CBS: Actress Can’t Sue for Retaliation Because She Never Applied for Job

Former ‘Young and the Restless’ star Victoria Rowell claims she was refused reemployment after advocating for more African-Americans in soap operas.


Interesting case with employment law and anti-SLAPP issues.

The plaintiff, an actress, claimed she was retaliated against when she complained that there are not enough African-Americans in soap operas. The only problem is, she never asked for a job. I’m considering bringing an action against the NBA for favoring tall people, even though I’ve never tried out.

The case also includes anti-SLAPP issues, with the defendants managing to get the case transfered from New York, where the anti-SLAPP law does not cover free speech issues, to California where it does.

See on Scoop.itCalifornia SLAPP Law

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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