Case Results
Are Online Reviews of Businesses Always Protected by the Anti-SLAPP Statute?
The legal pendulum swings, and attorneys who don’t stay current with anti-SLAPP law will likely be surprised by this new reality concerning online reviews.
As anti-SLAPP law developed through court decisions, one of the issues that needed to be decided was whether online reviews are a matter of public interest, such that they would fall under the first prong of the anti-SLAPP analysis.
I recall that while this issue was still in flux, I represented a client who had posted an online review about an attorney, who then sued her for defamation. I brought an anti-SLAPP motion, and argued vigorously that the review was indeed a matter of public interest because such reviews are useful to members of the public in deciding which professionals to hire.
A not very thoughtful judge in San Bernardino was shocked that a client would discuss the competency of their attorney in public. He denied my anti-SLAPP motion, stating that “the proper venue for such concerns is with the State Bar.”
Thankfully, the attorney in question was more thoughtful than the judge, and realized that the ruling would not survive on appeal, so he dismissed the action. While I did not win the battle, I won the war for my client.
My position – that online reviews are a matter of public interest – became the law of the land (not because it was my position, but because it made sense), and that position has been pretty sacrosanct for probably the last 20 years.
But as Bob Dylan sang, “the times they are a-changin’.” Recent decisions, and the judges in some of my recent cases, have been willing to listen to an equally persuasive counter-argument. Read the rest of this entry »
Well that didn’t take long – An anti-SLAPP victory based on my “all or nothing” case decision
As I explained in this earlier article, on December 27, 2023 (a slightly delayed Christmas present) the Court of Appeal issued an opinion in one of my cases that adopted my “all-or-nothing” reasoning as regards anti-SLAPP motions. You can go to the article for greater detail, but here is the concept in a nutshell.
The California Supreme Court case of Baral v. Schnitt held that an anti-SLAPP motion can be used to strike individual allegations of protected speech. Some courts had previously used a “gravamen” approach, whereby they would try to define the gravamen of a claim, to determine whether an entire cause of action could be stricken based on allegations of protected speech. If the gravamen of the claim was based on the protected speech, the entire cause of action could be stricken, even if it was a mixed cause of action. Baral held that a court does not need to think only in terms of the entire cause of action, but instead could strike individual allegations, and still allow the claim to go forward if allegations of unprotected conduct were sufficient to support the claim.
But it always takes some time for attorneys to “get the memo,” so even after Baral, attorneys continued to ask only that entire causes of action or the entire complaint be stricken, and would not specify individual allegations they wanted to be stricken. That practice continues to this day, even though Baral is now nine years old. (Nine years! I guess I should stop referring to it as “the recent decision of Baral v. Schnitt” in my briefs.)
Nonetheless, despite the lack of any request to do so, and with no notice to opposing counsel, courts would sometimes take it upon themselves to pick out the allegations of protected speech, and order them stricken. That would make defendant the prevailing party, entitling them to attorney fees.
I have for quite some time argued that is unfair and a violation of due process. A court is not supposed to grant relief that was not requested. Like any other motion, with an anti-SLAPP motion, the moving party files the motion, the plaintiff gets one chance to respond, and the moving party then gets to file a reply. What would always happen is the moving party would seek to strike the entire complaint, they would receive my persuasive opposition, and they would back peddle and state in their reply that “even if the court does not strike the complaint as requested, is should strike paragraphs 7, 23, and 47 of the complaint.”
How is that fair? I never had the opportunity to address whether those allegations should be stricken. Now, as a practical matter, I probably did address those allegations in opposing the anti-SLAPP motion, but my response would have been more focused on those specific allegations if a request to strike them was pending.
I always argued that if the defendant asked only that the entire complaint be stricken, then that is the only determination the court can make. I referred to this as an “all or nothing” motion. Even if the court should determine that the complaint is based in part on protected speech, it cannot grant the motion if there are sufficient allegations of unprotected speech to support the claims.
But the courts never had to address my all or nothing argument, because they would deny the opposition’s motion without going into that analysis.
And then came the decision of Paglia v. Hamilton, where the Court of Appeal finally embraced my all or nothing analysis. True to form, after I filed a bullet proof defamation action, defendant nonetheless filed an anti-SLAPP motion, making crazy arguments that the statements were protected, and seeking to strike the entire complaint. Upon receiving my opposition, the defendant replied with, “Well . . . hee hee . . . you know Court, when I asked you to strike the entire complaint, what I really meant was that you should strike the individual allegations of protected speech.” The trial court refused to do so, and the defendant appealed, and made the same argument that individual allegations should be stricken, even though the notice of motion made no such request. The Court of Appeal held that it would be improper to do so. And it was a published opinion! I now had authority to support my all or nothing argument. Read the rest of this entry »
Use an anti-SLAPP Motion Instead of a Motion for Summary Judgment
It is typically the case that as I review a complaint for the first time, I spot the allegations that are based on protected speech, and then consider whether the plaintiff will be able to present a prima facie case under the second prong of the anti-SLAPP analysis.
But lately a number of cases have presented a situation where I immediately recognize that the plaintiff is facing a nearly impossible burden to show a prima facie case. For example, I have had a number of cases with claims for Negligent Infliction of Emotional Distress (NIED). In case you did not get the memo, NIED does not really exist as an independent claim; it is just a claim for negligence. But since a defendant has no general duty to avoid inflicting emotional distress on a plaintiff, a claim captioned as a claim for NIED is almost always dead on arrival. (I have provided the case authority at the end of this article.)
So instead of first seeing the protected speech, I spot the failure of the second prong of the anti-SLAPP analysis, and then focus on whether that defective claim was based on protected speech. If so, it presents the opportunity to use an anti-SLAPP motion as a motion for summary judgment.
Allow me to provide a recent example. While I tell the tale, see if you can spot the SLAPP.
The Indemnity Agreement
As always, changing the facts slightly to protect their privacy, my clients (we’ll call them “Clients”) entered into a service contract with Joe Dokes, Inc. The contract contained an indemnity provision, providing that Clients would be responsible for any costs, attorney fees, and damages incurred by Joe Dokes, Inc. as a result of any litigation arising from the contract.
Clients timely made all payments under the contract until they caught Joe Dokes, Inc. acting in a fraudulent manner, and stopped paying on that basis. Joe Dokes, Inc. sued Clients for the fairly nominal amount still due under the contract, and Clients cross-complained against Joe Dokes, Inc. and Joe Dokes individually for the fraud.
Having been sued individually, Joe Dokes came up with the brilliant idea to cross-complain back against Clients under the indemnity provision contained in the contract. The contract was between my clients and Joe Dokes, Inc. This fact was specifically alleged in the original complaint by Joe Dokes, Inc. Nonetheless, Joe Dokes alleged in his individual capacity that he was the sole shareholder and principal of Joe Dokes, Inc., and was therefore a party to the indemnity agreement. All of his causes of action were based on indemnity, pursuant to that agreement.
So what is an attorney to do?
Posted in anti-SLAPP motions, Case Results | Tags: Negligent Infliction of Emotional Distress | No Comments »
We Finally Get a Court to Address the “All-or-Nothing” Concept
We just today received an opinion from the Court of Appeal, affirming our victory on an anti-SLAPP motion. Nothing earth shattering there; that is a relatively common occurrence at Morris & Stone.
But what makes this opinion more exciting than most is that the Court adopted a concept we have been advancing for years, without much success. The problem has not been that past courts have necessarily disagreed with our position, it’s just that they do not need to rule on the specific point in order to find in our favor, so the point is not discussed.
A Special Motion to Strike is still a motion to strike; it’s just special.
With a standard motion to strike, the moving party is required to set forth in the notice of motion specifically what they are seeking to strike. If the movant seeks to strike an entire paragraph, that paragraph can be identified by number, but if they want to strike individual words or sentences, those must be quoted verbatim.
This just makes sense, under the concept of due process. If a defendant moves to strike portions of a complaint, the plaintiff can’t properly respond to the motion if those portions are not identified. Quite properly, therefore, a court won’t entertain a motion to strike that simply states, “the court should strike any improper allegations contained in the complaint.”
And yet, as obvious at that concept may appear, that is precisely what occurs in almost every special motion to strike I oppose. The notice of motion will state only that the defendant is seeking to strike the entire complaint, but in response to my opposition, defendant changes tactics and asks that any individual allegations that arise from protected conduct be stricken, without ever identifying those allegations.
The vast majority of the time, the request does not become an issue, because the court simply denies the motion. But in opposing the motion, in addition to my other arguments, I always argue that the court CANNOT decide to split the baby and strike individual allegations, because the defendant did not identify them in the notice of motion. It would be highly unfair, and a violation of due process, for the court to go through the complaint with a scalpel and cut out individual allegations, when I have been given no opportunity to respond. Read the rest of this entry »
The First Amendment Protects Speech the Government Decides is False
The “slippery slope” argument is often dismissed with disdain, but seemingly always by the people willing to turn a blind eye to reality.
When arguing an appeal, I often use an extreme example of what could occur should the court fail to find in my client’s favor. A justice will sometimes seek to counter my example by stating that such an extreme result is unlikely, but that beautifully makes my argument. “Unlikely” is not the same as impossible, and if the best that can be argued is that the result is unlikely, that means it is possible, and the policy must be considered in that light.
This is especially true as regards the First Amendment. For every policy reason one might offer to justify a limitation on the freedom of speech, I can counter with an example of how that limitation will be abused. The facts of United States v. Alvarez, 567 U.S. 709, illustrate this point.
The case involved a man by the name of Xavier Alvarez (“respondent”). As set forth in the opinion of the court, Alvarez had a propensity to spin tall tales. “He lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704.”
The facts and arrest.
In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” None of this was true. As the Court put it: “For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.”
Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal of Honor at the meeting. The United States District Court for the Central District of California rejected his claim that the statute is invalid under the First Amendment. Respondent pleaded guilty to one count, reserving the right to appeal on his First Amendment claim.
In turn, the United States Court of Appeals for the Ninth Circuit found the Act invalid under the First Amendment and reversed the conviction. After certiorari was granted by the Supreme Court, in an unrelated case, the United States Court of Appeals for the Tenth Circuit, found the Act constitutional. So there was now a conflict in the Courts of Appeals on the question of the Act’s validity.
A little history.
Congress, over a century ago, established an award so the Nation could hold in its highest respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to the defense of the rights and honor of the nation,” have acted with extraordinary honor. And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.
The issue presented by this conflict was therefore relatively straightforward. In the interest of a legitimate government objective, can the First Amendment’s protections be curtailed?
The Government argued that the criminal prohibition is a proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.
Here is how the Court resolved these competing interests. Read the rest of this entry »
Is a Request for Civil Harassment Restraining Order Subject to an Anti-SLAPP Motion?
Restraining Orders and anti-SLAPP Motions
A very interesting issue arose in an anti-SLAPP matter that was brought to me. It involved a pretty specific situation that I have encountered only once before, but I think a research article is in order, to assist others who might find themselves in the same situation. The case arose from the client’s (Petitioner) obnoxious neighbor (Respondent). Suffice to say that Respondent had over the years engaged in annoying and threatening behavior, and our client had had enough. At the suggestion of the police, she filed an application for a Civil Harassment Restraining Order.
The Judicial Council has created forms to be used for this purpose, and like any form, it is at best a loosely fitting tool for the job. Petitioner filled out the forms the best she could, and attached a declaration to provide some additional facts she thought would be relevant for the court’s analysis.
In her declaration, she told the story of how she had repeatedly called the police in an effort to address Respondent’s harassment. She then said that in response to one of these calls to the police, Respondent had retaliated by making his own police report.
Oops. Reports to the police fall under the anti-SLAPP statute, so that afforded Respondent the opportunity to bring an anti-SLAPP motion, seeking to strike that “allegation.”
Petitioner didn’t know how to deal with the motion, and just showed up on the date set for the restraining order hearing. Thankfully, the court put off that determination so the anti-SLAPP motion could be heard, and set a briefing schedule. Petitioner then hired the Sultan of SLAPP, moi. Read the rest of this entry »
Posted in anti-SLAPP motions, Case Results | Tags: Civil Harassment Restraining Order | 3 Comments »
How I Defeated an anti-SLAPP Motion by Doing Almost Nothing
Sometimes delay can be a good thing. Here is the tale of an anti-SLAPP motion defeated by time.
Because of certain changed circumstances, a massive company, we’ll call it Optimus, found itself in a bad situation. The facts are very complicated, but here is a simplified, made-up analogy that will set the scene.
Picture that Optimus is in the cold-remedy business, and a number of its formulations contain acetaminophen. But one day it is discovered that when acetaminophen is aerosolized, it cures baldness, and can be sold at a much higher price for that purpose. All of the suppliers want to bail on providing acetaminophen to Optimus, so Optimus comes up with a complaint it intends to use across the country against its suppliers, to force them to honor their agreements. Optimus knows that the suppliers will claim that the new use is a better use for the acetaminophen, because curing baldness is obviously the best conceivable use of any drug, especially as compared to a little pain and fever relief during a cold. The complaint by Optimus will challenge that legal theory and, if successful, will get all its other providers back into line. Read the rest of this entry »
Understanding Anti-SLAPP Evidence
Another great victory by Morris & Stone, and an important lesson on anti-SLAPP evidence.
Our tale begins with a father who loved his daughter. We’ll call him Dad, and his daughter will be Rose.
Dad thought married life was good, and he and his wife begat their wonderful daughter Rose. But his wife (we’ll call her Mom) apparently saw greener grass, and divorced Dad to marry New Guy, meaning that Rose would now be spending time with New Guy.
Reports from Rose about her time with New Guy were disturbing. She claimed that New Guy had spanked her, and one time she returned home with a badly bruised arm she blamed on New Guy. During the ongoing custody battle, Dad reported his concerns about New Guy to the court in various court documents, stating that based on what Rose was reporting, he was being too forceful with Rose. Dad freely admitted he had no personal knowledge of any of this; he was only reporting what Rose was telling him. What else was he supposed to do?
The Litigation Privilege and Collateral Defamation Actions
I get the same question a couple of times a week, so I decided that a article on the litigation privilege is in order, so I will have a place to send potential clients for a detailed discussion. (I also briefly discuss the police report privilege.)
The question from potential clients almost always comes up in the context of wanting to start a collateral action* for defamation in response to something that is being said in some other court action. Here are the most common examples:
— A husband is going through a divorce, and his wife or a witness or the wife’s attorney filed a declaration with the court stating that he was physically abusive to the children. He wants to file an action against his wife (or the witness or the attorney) for defamation for the false claims made in the declaration.
— Someone is seeking or has obtained a restraining order against the caller, and in support of the request for a restraining order the person filed false declarations and gave false testimony in court. The caller has absolute proof, including emails and recordings, showing that the statements were false. The caller wants to sue for defamation because of all the false statements, which are now a matter of public record. They are concerned that if they don’t “clear their name” the lies will prevent them from working in their profession.
— An attorney sent a letter to an employee’s employer, claiming that the employee stole property and trade secrets from his former employer, and threatening to sue if the property is not returned or if the employer makes use of any of the trade secrets. Based on the letter, the company fires the employee rather than to run the risk of a lawsuit. The employee did not take any property from the former employer and is not using any trade secrets, and wants to sue the former employer and its attorney for defamation.
— An employee is suing for wrongful termination, and the deposition of one of his former co-workers is taken. At that deposition, the co-worker falsely claims that she was sexually harassed by the employee suing for wrongful termination. As a result of this claim, the court grants a motion for summary judgment and throws out the action, and the employee’s marriage is severely strained because of the claim of infidelity. The employee wants to sue the co-worker for defamation for what she said at her deposition.
— A person is sued for fraud, and in the complaint there are dozens of false allegations, stating that the defendant engaged in illegal conduct and made misrepresentations to the plaintiff in order to cheat her out of money. After the complaint is served, the plaintiff dismisses the action, but the complaint is now a matter of public record, and anyone doing a search on the Internet can find this complaint with all its lies. The defendant wants to sue for defamation.
Statements Made in Conjunction with Litigation are Privileged
None of the above circumstances would permit an action for defamation. A quick definition is necessary to explain why. Defamation requires an UNPRIVILEGED false statement. Therefore, if a statement is privileged, it cannot be defamatory.
Posted in Case Results, Defamation, Defamation Solutions, Evidence, Libel, Litigation, Slander, Trial, Wrongful Termination | Tags: Aaron Morris, Collateral Actions, Defamation, Litigation Privilege | 7 Comments »
The Top Three anti-SLAPP Cases Every Defense Attorney Cites, Whether they Apply or Not
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. Read the rest of this entry »
Click "Amazon Music" for all episodes of California SLAPP Law Podcast