In Episode 23 of the California SLAPP Law Podcast, we examine two cases that consider how privileged speech should be viewed during the two-prong anti-SLAPP analysis. As you will hear, the fact that the speech was privileged does not mean it automatically falls under the anti-SLAPP statute.
Edalati v. Kaiser Foundation Health Plan, Inc.
This unpublished case is our starting point. In Edalati, a dentist learned that Kaiser Foundation Health Plan had sent a letter to dozens of her patients, falsely informing them that the dentist was on a government list for Medicare abuse. Kaiser realized it’s mistake and sent out a retraction letter, but by that point the damage had been done. The dentist sued for defamation, and Kaiser responded with an anti-SLAPP motion.
Kaiser’s letter clearly falls under the common interest privilege of Civil Code section 47, but is that enough to prevail on an anti-SLAPP motion?
Lefebvre v. Lefebvre
In opposition to Kaiser’s anti-SLAPP motion, the dentist in Edalati relied on the case of Lefebvre v. Lefebvre. In that case, a wife, in the hope that it would help in a custody dispute, filed a false police report against her husband, claiming he had threatened to kill her and their children. He was arrested and charged. He was found not guilty, and then sued his ex-wife for defamation. The wife brought an anti-SLAPP motion.
The report to the police enjoys an absolute privilege, so the anti-SLAPP motion must have been granted, right? Don’t be so sure. Listen to this latest episode to find out. Here’s a hint. The case law discussed in this episode offers a means to save attorneys and their clients from an award of attorney fees when they end up on the wrong side of an anti-SLAPP motion.
A great, FREE program
The publisher stopped supporting and offering a fantastic program called Notescraps that I use every day in my practice. I not only prevailed on them to keep offering the program, I got them to give it to you for free (it used to be $20). I tell you how to get it on this episode.
Book ’em Danno.
And finally, just for fun, I tell the tale of my encounter with some officious deputies at the courthouse. I still made it to court and still won my motion.
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 »
On August 1, 2016 the California Supreme Court issued an opinion on anti-SLAPP law that will likely prove to be the most impactful decision of this decade.
The Supreme Court used the issues presented by the case of Baral v. Schnitt to finally clear up a split of authority that has existed since at least 2004, namely, what to do with mixed causes of action.
The history of the Courts’ struggles with mixed causes of action.
Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of an anti-SLAPP motion or are contemplating a defamation case that could invoke an anti-SLAPP motion, be sure you have a good anti-SLAPP attorney.
Today we discuss two seemingly identical cases, at least from the legal issues they presented, but which ended in completely opposite results.
The Vagaries of Anti-SLAPP Law
In our first example, The New York Daily News (that bastion of journalism) reported on a sex scandal at the fire department, and the article included two photographs. The first photo was a generic stock photo showing firefighters at the scene of a fire. But the second photo is the one that started the brouhaha. Inexplicably the newspaper chose to use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent (so they claimed) was simply to use Cheney as a representation of a firefighter. But here was an article about a sex scandal, with a picture of Cheney. How could any reasonable person take that as anything other than an implied reference that Cheney was one of the firefighters involved?
Cheney certainly thought his photo would be taken that way, so he sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.
So, the rule of law appears to be that if your photo is included in a sex scandal story, don’t bother suing, because the court will throw out your case if the other side brings an anti-SLAPP motion, because you won’t be able to prove a likelihood of success on your case. Good to know.
Now we turn to the case of Leah Manzari v. Associated News Ltd. Read the rest of this entry »
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 »
In Episode 20 of the California SLAPP Law Podcast, we discuss important Evidence Codes, and my VINDICATION by the California Court of Appeal.
The vindication comes in the form of a published opinion from the Sixth District Court of Appeal. I was brought in as co-counsel to first chair an internet defamation trial in Santa Cruz, representing a client (an attorney) we will refer to as “Esquire”. We were also defending a cross-complaint for breach of a commercial lease. The trial was assigned to Judge Ariadne Symons, who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers.
At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint for defamation and breach of the covenant of quiet enjoyment. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence.
I was confident that the matter would be reversed on appeal, and I was looking forward to the Court of Appeal’s opinion, not just for the benefit of the client and my own vindication, but because until the Court of Appeal instructed Judge Symons on fundamental evidentiary law, a lot of parties in her court were going to be deprived of justice. Read the rest of this entry »
On Episode 19 of the California SLAPP Law Podcast, we go through my five favorite reported anti-SLAPP decisions from the first half of 2016.
But first we begin with a cautionary tale of an attorney who is being sued for malpractice for failing to have me review his complaint before it was filed! (OK, there’s a back story here, so be sure to listen to this episode to find out what I’m talking about.)
Then, we turn to the five best published anti-SLAPP decisions from the first half of 2016. The bold cases are the top five; the non-bolded are other cases I discuss as well.
Lanz v. Goldstone (2015) 243 Cal.App.4th 441
Another cautionary tale, this time of an attorney who followed the old adage, “the best defense is a good offense.” He tried to intimidate an attorney from seeking his legal fees, and bought himself a malicious prosecution action in the process. You’ll learn a lot about malicious prosecution actions and under what circumstances they can survive an anti-SLAPP motion.
Bertero v. National General Corp. (1974) 13 Cal.3d 43
Speaking of malicious prosecution actions, this is the seminal case.
Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135
“When the proceeding terminates other than on the merits, the court must examine the REASONS for termination to see if the disposition reflects the opinion of the court OR THE PROSECUTING PARTY that the action would not succeed.”
Karnazes v. Ares (2016) 244 Cal.App.4th 344
Speaking of over-pleading, our second case is Karnazes v. Ares, decided by the Second District in January of 2016. In this case, the plaintiff alleged 22 – count em – 22 causes of action against the defendants. Karnazes lost to an anti-SLAPP motion, but made some interesting arguments in opposition to that motion.
Sweetwater Union School District v. Gilbane Building Company (2016) 245 Cal.App.4th 19
Are political bribes protected by the anti-SLAPP statute? Listen to find out (and the answer will likely surprise you). And find out how you can support an anti-SLAPP motion with declarations without using declarations.
Crossroads Investors v. Federal National Mortgage Association (2016) 246 Cal.App.4th 529
It may look like litigation, and it may quack like litigation, but that doesn’t necessarily make it litigation for purposes of the litigation privilege and the first prong of the anti-SLAPP analysis.
JM Manufacturing v. Phillips & Cohen (2016) 247 Cal.App.4th 87
Yet one more action against an attorney; in this case an attorney who was so proud of his firm’s trial victory that he published a press release and bought the firm a defamation action. It was a split decision.
And finally, in the after show, I provide an appeal tip that might save you from some embarrassment.
In episode 18 of the California SLAPP Law Podcast, I discuss an anti-SLAPP motion I decided NOT to pursue, and why. We discuss the case of Weinberg v. Feisel (2003) 110 Cal.App.4th 1122.
Then we dive deep into the pros, cons, and frustrations of bringing anti-SLAPP motions in Federal Court. Since 1999, the Ninth Circuit has recognized that the California anti-SLAPP statute can be applied to cases in Federal Court, but the motion you bring there is a very different animal from what is pursued in State Court. As part of our discussion on anti-SLAPP motions in Federal Court, we cover the following cases:
Erie Railroad Company v. Tompkins (1938) 304 U.S. 64
Swift v. Tyson (1842) 41 U.S. 1
United States Newsham v. Lockheed Missiles and Space Co. (1999) 171 F.3d 1208
Makaeff v. Trump University (2013) 715 F.3d 254
Verizon Delaware, Inc. v. Covad Communications (2004) 377 F.3d 1081
Globetrotter Software, Inc. v. Elan Computer Group (2004) 362 F.3d 1367
In Episode 15 of the California SLAPP Law Podcast, we discuss (1) the perils of overreaching in your anti-SLAPP motions (making iffy challenges to causes of action can come back to bite you, even if you win), and (2) why you should NEVER assume it’s too late to bring an anti-SLAPP motion , and some strategies to keep in mind when you do bring an anti-SLAPP motion late in the game.
We also discuss the case of Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, which held [spoiler alert] that no leave is required to file a late anti-SLAPP motion.
We examine two cases that discuss whether it is an abuse of discretion to refuse to consider a late anti-SLAPP motion. Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 held that it is never an abuse of discretion for a trial court to refuse to consider a late-filed anti-SLAPP motion, regardless of the merits, and Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, which held that it can be an abuse of discretion to allow an anti-SLAPP motion to be brought too late in the action.
(But the title says it’s never too late to file an anti-SLAPP motion. How can you reconcile that with the holding of Platypus? Listen to Episode 15 to find out!)
I was recently retained to consult on an anti-SLAPP motion in Orange County Superior Court, and the hearing on the motion was set for today. This particular judge is very good about issuing tentative rulings, but the rulings are often published on-line just shortly before the 1:30 hearing time. Knowing the tentative ruling is essential for oral argument since you know where the judge is going, and can address those specific points. (Truth be told, attorneys are seldom successful in getting a judge to reverse his or her tentative, but sometimes it can be done when the judge has a fundamental misunderstanding of the law that can be cleared up, or has misapplied the law to the facts.)
So my procedure is to open a window to the tentative rulings, which will be the rulings from the prior week, and periodically refresh the window until the current rulings appear. When our tentative ruling finally did pop up, it was just to inform us that the judge had decided to continue the hearing on our motion for a few weeks. This can happen when a judge’s docket doesn’t leave him or her enough time to work up and decide all the motions, or they just think more time is needed to decide a particularly challenging motion. I prefer to think that our legal analysis was so impressive that the judge just wanted more time to savor it, but who knows.
But while I was on the list of tentative rulings, I saw that the judge had decided an anti-SLAPP motion in another case. The ruling piqued my interest, so I pulled a copy of the cross-complaint to see what the case was all about. That will be the subject matter of this article.
I present the case summary and ruling here because they present a great example of how a judge analyzes an anti-SLAPP motion. I get numerous calls and emails from potential clients either wanting to prosecute an anti-SLAPP motion or needing to defend against one, where the facts they want to present are largely speculation. But to borrow an old cliché, an anti-SLAPP motion is where the rubber meets the road, and your allegations must be provable facts. The case also presents a very good example of just how expansive the litigation privilege can be. I will also take this opportunity to discuss the proof necessary for the particular causes of action that were pursued in this case. Read the rest of this entry »