Podcast
SLAPP033 – How to Defeat an anti-SLAPP Motion with Inadmissible Evidence
In Episode 33 of the California SLAPP Law Podcast, we revisit the California Supreme Court decision of Sweetwater Union High School District v. Gilbane Building Co. Our client was sued by an attorney, and we had the action dismissed by way of an anti-SLAPP motion. The attorney appealed, and in his briefs, he never mentioned the Sweetwater holding, and we sure were not going to bring it up. The Court of Appeal brought it up anyway. Would the attorney be able to reverse the ruling, based on evidence that might be admissible at trial?
We also discuss how sometimes the best thing to do is nothing. We were brought in to oppose an anti-SLAPP motion, but when the trial court kept continuing the hearing, I told the client, “wait for it, wait for it . . .”
And I tell the tale of nice woman who ran afoul of the anti-SLAPP statute with her cross-complaint, and was faced with a massive attorney fee application. She could not afford to hire us, but a little guidance from the wings saved her from disaster.
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SLAPP031 – A Gambler Bets Wrong on the Anti-SLAPP Statute
In Episode 31, in addition to an anti-SLAPP case, we examine another example of how opposing counsel blew an opposition to our Motion for Summary Judgment, by being unaware of the procedure rules.
The limit for the memorandum of points on a typical motion is 15 pages, but a motion for summary judgment is a big deal, so the rules graciously allow 20 pages for that type of motion. The same rule applies to the opposition. But this attorney offered up a 60 page memo. How did we use that error to seal his doom? Listen to Episode 31 to find out.
Next we turn to the case of Mike Postle, a professional gambler. Some accused Postle of cheating at a particular poker tournament. He took umbrage with that, and sued 12 of his accusers. We would have told poor Mr. Postle the tale of Joe the Alcoholic, which made clear that he could not prevail on his defamation claim. Listen for all the details, and the only possible silver lining in Postle’s debacle.
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SLAPP030 – Is it Defamatory to Call Someone a “Crook?”
Fun, fun, fun in the California sun at Morris & Stone.
In just the past couple of weeks, we (1) Obtained a 3.9 million dollar defamation verdict for one client; (2) Got another client out of a 7 million dollar case on a motion for summary judgment, and (3) Were awarded our fees following a successful anti-SLAPP motion, even though the motion did not dispose of every cause of action.
In Episode 30 of the California SLAPP Law Podcast, we discuss the facts of the aforementioned anti-SLAPP motion, and the motion for attorney fees that followed. This particular anti-SLAPP motion presented some really interesting issues, as did the motion for attorney fees.
As to the anti-SLAPP motion, we examine whether it can ever be defamatory to call someone a crook. It might seem so, but how exactly does one define a crook in order to offer evidence that one is not a crook?
As to the motion for attorney fees, how does the court handle such a request when the underlying anti-SLAPP motion was only partially successful?
Along the way, we are again reminded why it is so crucial to know the procedural rules governing any motion you bring.
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SLAPP028 – An Exception to the Absolute Police Report Privilege?
Some of our anti-SLAPP cases are breaking new legal ground through some very interesting fact patterns.
Penal Code section 11172
You are probably aware that certain professionals are required to report any child abuse situation of which they become aware. Penal Code section 11172 was created in order to afford those mandated reporters immunity against defamation claims potentially arising from their reports. But that same statute includes the following wording as regards persons who are not mandated reporters:
Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused.
But hold on Maude. Civil Code 47 and Code of Civil Procedure 425.16 both afford what has always been held to be an absolute privilege for reports to the police. Does Penal Code section 11172 carve out an exception? Listen to Episode 28 for the answer.
Can an attorney sue for malicious prosecution based on a fee arbitration?
Ahhh, the benefits of hindsight.
Episode 28 of the California SLAPP Law Podcast was recorded almost a year ago, but I never got around to editing and posting it. In addition to reporting on our recent victories at that time, it included the tale of an anti-SLAPP motion that had not gone in our favor, and was still up on appeal. I promised at the time to report on the results of the appeal. [Spoiler alert: We won on appeal and the anti-SLAPP motion was granted.]
As I was editing the podcast today, I was struck by the fact that it seemed to come from another era; like finding a journal entry where you referred to stopping at a pay phone or expressed how much you liked your Angel Flight pants. I discuss how I traveled to San Francisco to argue the case to the Court of Appeal. Can you imagine? Actual, face-to-face argument to the court? What an archaic notion.
In the next episode of the California SLAPP Law Podcast I will report on the opinion by the Court of Appeal, but if you can’t wait, you can read all about it on the California SLAPP Law website.
You’ve got to know when to fold them . . .
Finally, I tell the tale of a plaintiff who just did not know when to fold them . . . know when to walk away . . . know when to run.
We defeated her case with an anti-SLAPP motion. It was apparent each step of the way that her counsel just did not know the law in this area. Ever helpful, we explained each step of the way what we were going to do if he proceeded with his plans, and what it would cost his client. After spending probably tens of thousands of dollars in activities we advised against, Plaintiff had to finally pay the piper.
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SLAPP026 – Don’t Sue for Defamation Unless the Statements Really are False
Canada, eh? Those hosers in Ontario didn’t get around to passing an anti-SLAPP statute until 2015, and they’re still trying to figure it out.
In this episode of the California SLAPP Law Podcast, we travel to the great white north to examine an anti-SLAPP motion that was denied by the trial court, but granted by the appellate court. It beautifully illustrates the most fundamental point of a defamation case that oh so many attorneys still don’t understand. A statement is not defamatory unless it is false, no matter what the quantum of harm it may cause.
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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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Posted in Anti-SLAPP motion, Podcast, Podcasts | Tags: Judge Ariadne Symons, Olivia de Havilland | No Comments »
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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SLAPP001 – Why Every Litigator Must Know California SLAPP Law
California’s SLAPP Law provides for the use of special motions to strike, called “anti-SLAPP motions,” to quickly dispose of lawsuits that were filed only to improperly silence free speech or to prevent the defendant from pursuing a lawful legal remedy.
But as one person put it, the 15 Legislators who passed the law failed to consider the 4,000 attorneys who would interpret it. There is a dark side to California’s SLAPP Law. It trades one form of abuse for another. It was designed to protect free speech and the right of redress, but now it keeps some legitimate cases out of court because the risks are just too high. And with its automatic right of appeal, it is used to greatly delay trials. Any anti-SLAPP motion, no matter how ill-conceived, gives the defendant an automatic right of appeal. A defendant can therefore delay a trial for a year or more just by filing an anti-SLAPP motion.
Finally, with the right to attorney fees it provides, it provides unscrupulous attorneys with a mechanism that allows them to recover windfall fees.
With Episode 1 of the California SLAPP Law Podcast, I take you through the history of the anti-SLAPP statutes, and explain why every California litigator must be familiar with this law.
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