Podcasts

SLAPP027 – When a Motion to Dismiss is a Better Strategy than an Anti-SLAPP Motion

President Trump is never short on controversy, and said controversy leads to some interesting cases. In Episode 27 of the California SLAPP Law Podcast, we will discuss two Trump cases — one First Amendment and one anti-SLAPP — arising from the words and tweets of our sneerless leader. We’ll also discuss when a motion to dismiss can be a better option than an anti-SLAPP motion.

The first case is Nwanguma v. Donald Trump, arising from his comments at a political rally before he was elected. When hecklers tried to shout him down, he said “get ’em out of here.” The crowd heeded his words and bodily removed the protesters, who then sued for battery and incitement. They claimed that by saying “get ’em out of here,” Trump incited the crowd to riot. Trump moved to dismiss, arguing that his words were mere hyperbole. How did the court rule? Listen to Episode 27 and find out!

Next comes the infamous case of Stormy Daniels v. Donald Trump. Daniels sued Trump in two different forums for two different claims. In one, she is simply trying to get out the contract whereby she was paid for her silence. In the other, she had stated during a press conference that she had been threatened by a man who told her to be quiet about sleeping with Trump, even showing an artist’s rendering of the allege suspect from many years prior. Trump felt compelled to tweet that the story was a total “con job.”

Her attorney, Michael Avenati, who would have known better if he listened to the California SLAPP Law Podcast, decided to sue for defamation for Trump’s usage of the phrase “con job.” As any regular listener would know, “con job” is just too imprecise to support a defamation claim. It is not verifiably false, and without a verifiably false statement, there can be no defamation. Trump brought an anti-SLAPP motion, which was granted.

Not a good week for Avenati. In the same week that the court granted Trump’s anti-SLAPP motion, finding that Daniels would therefore be liable for all of Trump’s attorney fees, Avenati was found personally liable for a multi million dollar judgment by a former associate at his firm, and was given an eviction notice from his law offices for failure to pay rent.

And stay around for the after show, where I discuss the happenings with Bell v. Feibush, some precedent I created six years ago.

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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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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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SLAPP023 – Privileged Speech Can Survive Anti-SLAPP Motions

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.

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SLAPP022 – Abuse of Process Claims and Anti-SLAPP Motions

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Hooray for Hollywood! In Episode 22 of the California SLAPP Law Podcast, we discuss four cases involving the film industry that have all resulted in anti-SLAPP motions. We also dive deep into abuse of process claims, and determine if such claims can ever survive an anti-SLAPP motion. And in the process, we discuss a trial strategy that I successfully utilized in achieving a case involving the Automotive Repair Act.

Cases discussed in this Episode:

Kelly Van v. James Cameron (unpublished).

In this case, and author named Kelly Van sued James Cameron and a cast of thousands, claiming that Avatar was a ripoff of her book, Sheila the Warrior; the Damned. When she lost the copyright action in Federal Court, she sued in state court, claiming that she only lost the federal action because the defendants had lied. So she was suing for statements made in another case. Sounds like a SLAPP to me.

Timothy Forsyth v. Motion Picture Association of America, Inc.

In this class action, the plaintiff claims that depictions of smoking in the movies are killing our children. They claim it is a violation of the movie rating system to give a movie a PG-13 rating if the movie depicts smoking (such as Gandalf smoking his pipe in the Lord of the Rings movies). So the plaintiff gets to tell the movie industry how to rate movies? Sounds like a SLAPP to me.

Paul Brodeur v.  Atlas Entertainment (unpublished).

In the 70s, Paul Brodeur told the world that microwave ovens were dangerous, but he never said the cook the nutrients out of food. In the film American Hustle, a fictional charater makes the fictional statement that Paul Brodeur said that microwaves cook the nutrients out of food. So Brodeur gets to tell the movie industry how to write the fictional dialog of its fictional characters? Sounds like a SLAPP to me.

Michael Hawkins v. Christian Slater (Superior Court case)

For a brief shining moment in Camelot, Christian Slater reunited with his actor father, Michael Hawkins. They had had a turbulent relationship, but Slater announced in an interview that he was happy to have his father back in his life, describing his father as a “manic-depressive schizophrenic.” His father sued for defamation, and Slater brought an anti-SLAPP motion. So Hawkins thinks that Slater is qualified to offer a medical diagnosis, such that his statement would be taken as a verifiable statement? Sounds like a SLAPP to me.

Rusheen v. Cohen (Supreme Court Decision).

The Supreme Court case that tells all about abuse of process claims. Every abuse of process claim will be met with an anti-SLAPP motion. Here is the information you need to determine if your abuse of process claim will survive that motion.

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SLAPP021 – Anti-SLAPP Motions Against Mixed Causes of Action

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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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SLAPP020 – Sixth District Weighs in on Admissibility of Yelp Reviews and the Law on Inferences

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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 »

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SLAPP019 – Five Best Published Anti-SLAPP Decisions (so far) in 2016

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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.

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SLAPP018 – All You Need to Know About Anti-SLAPP Motions in Federal Court

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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

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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