Anti-SLAPP motion

Daniels’ Defamation Action Against Trump was Doomed from the Start

I have frequently warned about the path defamation claims can take, and it was illustrated once more by the kerfuffle between Donald Trump and Stormy Daniels.

Here is the pattern.

Way outside every controlling statute of limitations, a woman states she was assaulted by a man, and the man responds by going on social media or stating to the press that the assault never occurred. The woman then sues for defamation, claiming that by denying the assault, the man is calling her a liar. As a variation, the accused man sometimes comes right out and says she is lying.

It’s a tough situation for the accused. If he fails to deny the charge, then it will be assumed that it must be true, but if he does deny it, then he buys himself a defamation action. He was safe from legal action, but his words started a whole new statute of limitations on the defamation claim. This is precisely what happen when Bill Cosby denied raping various women, which lead to very different conclusions.

Defamation claims against Bill Cosby.

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SLAPP025 – Anti-SLAPP Motion Defeats Gone With the Wind Actress

de Havilland v. FX Networks, LLC

If you sell t-shirts bearing the images of the Three Stooges, can you be sued for violating their right of publicity?

And if you create and broadcast an 8-part docudrama centering on Bette Davis and Joan Crawford, can Olivia de Havilland sue you for including the details of HER life in that story?

Well, the just decided case of de Havilland v. FX Networks, LLC answers both those questions.

I enjoyed this anti-SLAPP case because it beautifully illustrates how some judges just don’t understand precedent.

Olivia de Havilland, who is now 102 years old, did not like the way she was protrayed in the FX docudrama, “Feud: Bette and Joan,” centering on deceased actresses Bette Davis and Joan Crawford.

In case you don’t recognize the name, de Havilland portrayed Melanie in Gone With the Wind. She was the one Scarlett was always jealous of, as I recall.

She sued FX, claiming the portrayal of her in the show amounted to the unauthorized use of her name and likeness for commercial gain.

FX responded with an anti-SLAPP motion.

The trial court, Judge Holly Kendig presiding, denied the anti-SLAPP motion, relying in large part on a California Supreme Court decision called Comedy III Productions v. Gary Saderup, Inc.

FX appealed. Listen to Episode 25 to see how it all turned out.

What is the current status of the requirement that an anti-SLAPP motion be heard within 30 days of filing?

Previously, Fair Political Practices Commission v. American Civil Right Coalition, Inc. and Decker v. U.D. Registry had held that the 30-day requirement was jurisdictional. Now Karnazes v. Ares holds that it is the clerk’s burden to set the hearing within 30 days. But does that mean counsel is safe if a hearing is outside the 30-day deadline. Listen to find out.

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The Morris Plan – How to Force Yelp (and other sites) to Remove Defamatory Reviews

Removing defamatory reviews.

What you are about to read is a completely untested but viable approach to forcing Yelp to remove a false and defamatory review, based on recent legal developments. It is on the bleeding edge of the law, and as that name implies, it may not be without pain as it works its ways through the courts. No nasty emails if it doesn’t work for you.

This approach arises from Yelp’s irrational need to create bad precedent, as evidenced by the Yelp v. McMillan case, and most recently the Supreme Court matter of Hassell v. Bird, wherein Yelp argued that the content posted by third parties is its content.

To those unfamiliar, in Hassell v. Bird the defendant Bird defamed a law firm – the Hassell Law Group – in a Yelp review. Hassell sued Bird, and the court found that the Yelp “review” by Bird was false and defamatory, and ordered Bird to take it down. But then comes a twist unique to this case. Knowing that Bird would be unlikely to comply with the order, the court also ordered Yelp to remove the review, even though Yelp had never been a party to the action.

It is not uncommon for court orders to include persons or entities who were not parties to the action, if some action by those third parties is necessary to effectuate the order. In a typical renter eviction action, for example, only the known tenant will be named in the action, but the eviction order will apply to anyone occupying the residence, in case the tenant allowed others to move in, subleased the property, etc. Read the rest of this entry »

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SLAPP024 – Supreme Court Clarifies Whether Amended Complaint Resets 60-Day Clock for Anti-SLAPP Motion

In Episode 24 of the California SLAPP Law Podcast, we tackle two important anti-SLAPP issues.

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism

The conventional wisdom until now, as expressed in cases such as Yu v. Signet Bank/Virginia, was that an amended complaint creates an new 60-day period to file an anti-SLAPP motion. Then along came the Court of Appeal decision of Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism. In that case, the plaintiff originally sued on two causes of action, to which the defendant demurrered. When the plaintiff filed a third amended complaint, which added two new causes of action, the defendant finally filed an anti-SLAPP motion, challenging all the claims, including the two that had been there all along. The trial court refused to consider the challenge to the previously existing claims, stating they were past the 60 days since they could have been previously challenged. The Supreme Court agreed.

This is a quantum shift in the prior case law, but will the consequences be as severe as the holding seems to indicate? Listen to Episode 24 to find out, and for the best strategies for dealing with the Newport Harbor reasoning.

Dowling v. Zimmerman

Certainly not a new case, but we use it to discuss whether an appeal stays collection of costs and attorney fees following a successful anti-SLAPP motion.

 

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You CAN Join an Anti-SLAPP Motion Brought by Another Party

I remember sitting in court – Judge Banks’ court in Orange County to be specific – and he called a motion for summary judgment that was on calendar, noting that another party had “joined” the motion. I see this all the time. One party files a demurrer, or a motion for summary judgment, or whatever, and an attorney representing a different party says, “hey, that’s a great idea,” and files a “notice of joinder” on the motion. You may have engaged in the behavior yourself.

But as Judge Banks explained to the unfortunate attorney, it doesn’t work that way. As he put it, “when you ‘join’ in a motion, it means only that you are cheering from the sideline, ‘go team go.’” The court has no power to bestow the requested relief on your client.

The reason should be self-evident. The evidence that is offered in support of a motion for summary judgment for one client may have no applicability to another. The missing elements that would justify sustaining a demurrer as to one party may not apply to another. If “joinder” were permitted, then the non-movant would be placed in a terrible quandary. He, she, or it would have to speculate on why the same arguments would apply to the joining party, and try to oppose them.

But with all that said, an anti-SLAPP motion presents a different analysis. Because of the two prong analysis, a defendant can ride on the coattails of another moving defendant. If the movant successfully argues that the conduct falls under the anti-SLAPP statute, the burden then shifts to the plaintiff to show a likelihood of success. The second prong can then be decided without any evidence from the defendant who joined the motion.

In the case of a motion for summary judgment, for example, the moving defendant must present evidence sufficient to establish a complete defense to the targeted claims, or to show that the plaintiff will be unable to prove an essential element. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851. Simply joining the motion of another party does not satisfy this requirement.

But on a special motion to strike, the moving defendant need only demonstrate that the action arises out of protected First Amendment activity. Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365. In Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-661, the Court concluded that so long as one defendant met that burden, others could join.

But don’t take this too far. Obviously, if the complaint alleges different types of wrongdoing by the defendants, the court may not be able to rule as to the joining defendant. Complicating matters further, there were problems with the plaintiff’s opposition in Barak.

Nonetheless, if you find yourself in a situation where one of the other defendants has filed an anti-SLAPP motion, take a hard look to determine if it would make sense to join in the motion.

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Mandated Arbitration Does Not Create a “Protected Activity”


A decision that involves both beer and anti-SLAPP law is right up my alley, so I had to bring you the details of Mission Beverage Company v. Pabst Brewing Company, LLC out of the Second District.

The importance of this case is the lesson it teaches in focusing on whether the conduct in question is indeed “protected activity” such that it satisfies the first prong of the anti-SLAPP analysis. As I have stated here before, the scope of the anti-SLAPP statute has grown and grown, but attorneys must not give short shrift to the first prong.

I. Facts Read the rest of this entry »

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SLAPP021 – Anti-SLAPP Motions Against Mixed Causes of Action

California-SLAPP-Law-Cover-300x300 (1)

We discuss the very important case of Baral v. Schnitt, in which the California Supreme Court finally dealt with the split of authorities regarding how to deal with complaints with mixed causes of action; those that contain allegations of both protected and unprotected activities. This is probably the most important anti-SLAPP decision of the decade.

We also take a quick look at Hassell v. Bird, in which the Court of Appeal held that Yelp can be ordered to take down a false and defamatory post, even if it was not a party to the action.

Finally, I tell the tale of a very entertaining victory we had in Norwalk Superior Court, in front of a finger-wagging judge.

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Anti-SLAPP Motions in Federal Court – Some Judges Still Complaining

No Whiners Annoying Complainers Irritating Problem Customer
On August 3, 2016, the Ninth Circuit issued an opinion in the case Travelers Casualty Insurance Company of America v. Robert Hirsh.

The Court affirmed the district court’s denial of Robert Hirsh’s anti-SLAPP motion (Cal. Civ. Proc. Code § 425.16) to strike the second amended complaint filed by Travelers Casualty Insurance Company of America. Hirsh had alleged that Travelers’ claims arose out of his representation of Travelers’ insured, Visemer De Gelt, as Cumis counsel; and his activity was therefore protected under the anti-SLAPP statute.

The Ninth Circuit held that because Travelers’ causes of action were not based on an act in furtherance of Hirsh’s right of petition or free speech, they did not “arise from” protected activity, and thus did not satisfy the first prong of the anti-SLAPP analysis. The Court also held that Travelers established a probability of prevailing on the merits sufficient to survive a motion to strike. The Court further held that California’s litigation privilege, Cal. Civ. Code § 47(b), did not bar the suit because the causes of action arose from Hirsh’s post-settlement conduct, not his communications with De Gelt in settling a prior lawsuit.

Should we allow anti-SLAPP motions in Federal Court?

But like a number of appellate judges in the Ninth Circuit, Judge Kozinski and Judge Gould, although they concurred in the opinion, could not pass up the opportunity to complain about how anti-SLAPP motions in federal court were making them work too hard. Judge Kozinski decried that the existing case law is wrong, and he would urge the court to follow the D.C. Circuit’s holding in Abbas v. Foreign Policy Grp., LLC, which held that anti-SLAPP motions do not belong in federal court because they directly conflict with the Federal Rules of Civil Procedure. At the very least, Judge Kozinski urged the court to reconsider the holding in Batzel v. Smith, which allows defendants who lose anti-SLAPP motions to bring an immediate interlocutory appeal.

With all due respect, the reasoning of Judge Kozinski does not withstand scrutiny, as will be shown hereinbelow. What follows is Judge Kozinski’s concurring opinion, with my response to him in red on each of his points. Read the rest of this entry »

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‘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.

Source: www.hollywoodreporter.com

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 »

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When Considering an Anti-SLAPP Motion, Focus on the Gravamen of the Complaint

Fans on stadium game panorama view

I am the anti-SLAPP guy, and I’d be the last to criticize creative applications of the anti-SLAPP statute. But sometimes it is as though the attorney bringing an anti-SLAPP motion only read the Cliff Notes on the process. He knows some of the buzz words, such as “public interest” and “protected speech”, but lacks the big picture. When considering an anti-SLAPP motion, you must consider the true gravamen of the complaint.

Case in point is the recent Court of Appeal opinion in Rand Resources, LLC v. City of Carson (Los Angeles Superior Court Case No. B264493), arising from the efforts to build a football stadium in the City of Carson. The ruling of the Court of Appeal, published on May 31, 2016, can be found here.

Carson wanted to build a stadium and entertainment complex, and was hoping to woo the NFL to relocate a team there. Carson hired a lobbyist, of sorts, Richard Rand, giving him an exclusive arrangement to negotiate with the NFL.

Things between Rand and the city got off to a rocky start, leading Rand to successfully sue Carson for civil rights violations, alleging that the Mayor had demanded a bribe. The city and Rand both appealed, with the city claiming it had never happened, and Rand claiming he should get more in damages.

The parties eventually settled, but Carson did not honor Rand’s exclusivity arrangement. Rand sued again, this time for breach of contract and other claims.

“Well,” thought the city’s attorneys, “this whole football stadium thing is generating a ton of public interest, and anti-SLAPP motions can be brought where the situation is a matter of public interest, so let’s bring an anti-SLAPP motion.”

And that’s just what they did. The city challenged Rand’s action with an anti-SLAPP motion.

“Well,” thought the judge, “this whole football stadium thing is generating a ton of public interest, and anti-SLAPP motions can be brought where the situation is a matter of public interest, so I guess I should grant the anti-SLAPP motion.”

And that’s just what he did. Apparently having read the same Cliff Notes, the judge granted the anti-SLAPP motion. Rand appealed. Read the rest of this entry »

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

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