SLAPP017 – An Introduction to California SLAPP Law and Anti-SLAPP Motions

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In Episode 17 of the California SLAPP Law Podcast, we go back to basics, with an introduction to the fundamental concepts behind California’s SLAPP Law and anti-SLAPP motions.

The good news is that although it took some 25 years for attorneys to begin recognizing the impact of California’s anti-SLAPP statutes on litigation in the state, they are now aware of the statute (sometimes painfully so). But it is clear that there are still some misconceptions about the law, including the fundamental terminology and procedures. Listen to this episode, and you’ll have a great understanding of what a SLAPP is, and what sort of activities fall under that anti-SLAPP statutes. Read the rest of this entry »


SLAPP016 – Appealing a Ruling on an Anti-SLAPP Motion

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In Episode 16 of the California SLAPP Law Podcast, we discuss (1) when you can join with another defendant’s anti-SLAPP motion, and whether it is a good strategy to do so; (2) what the Courts of Appeal are doing to deal with all the appeals from anti-SLAPP motions; and (3) likely changes to the automatic right of appeal.

We dive deep into the case of Hewlett-Packard Co. v. Oracle (2015), in which the Sixth District decried the abuse of the automatic right of appeal from rulings on anti-SLAPP motions, and took the unusual step of suggesting to the California Legislature how it could be fixed. The California Society of Entertainment Lawyers has offered the change set forth in the decision as a proposal to the legislature via the Conference of California Bar Associations.

We also discuss the cases of Decker v. UD Registry, Inc. and Barak v. Quisenberry Law Firm, and examine their very different views on whether one defendant can join another defendant’s anti-SLAPP motion.

Finally, in the post show, I introduce you to a brand new service that provides access to prior tentative rulings of trial court judges, which are a great resource when preparing important motions that will be heard by those judges.


SLAPP015 – It’s Never Too Late to File an Anti-SLAPP Motion

California SLAPP Law Podcast

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!)


SLAPP014 – Interaction Between the Communications Decency Act and Anti-SLAPP Motions

California SLAPP Law Podcast

In Episode 14 of the California SLAPP Law Podcast, we begin with a discussion of the interplay between anti-SLAPP motions and the Communications Decency Act.

The topic came up because of another anti-SLAPP victory we enjoyed this week at Morris & Stone. The anti-SLAPP motion we brought on behalf of our client had nothing to do with the Communications Decency Act, but the Plaintiff was also suing Yelp and RipOffReport in the same action, and they both disposed of the action with anti-SLAPP motions based on the CDA.

I would have thought this had been put to bed long ago, but I still see attorneys suing websites for content posted by third parties, so I thought we’d discuss that a little.

Our anti-SLAPP motion was granted by Judge Jeffrey Glass in the Orange County Superior Court. Take a listen for my (favorable) impressions of Judge Glass, based on the cases I have had in front of him.

In one such case, I represented a defendant who had created a spam filter, and was sued by a company because his spam filter determined that this company was sending out spam emails. In that case, Judge Glass used the “fuzzy bunny test” to determine if the CDA only protects content based spam filters. Listen to Episode 14 to learn the details of this important test.

Here’s what the CDA says about spam filters:

Section 230(c)(2) provides that “[n]o provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Next, we review the CDA and third party content. We discuss the case of Global Royalties, Ltd v. Xcentric Ventures, where the plaintiff argued that the CDA did not protect information published by a third party on a website, since the website encouraged defamatory speech.

We also discuss the case of Batzel v. Smith, where an individual sent a defamatory letter to an organization, and that organization liked the letter so much, it posted it on its website. In that case, the court found that the website was not protected by the CDA, because the person who sent the letter had not intended for it to be published.

We conclude with a discussion of the Santa Monica 11, who sought to block a ballot measure, and are now on the hook for $31,000 in attorney fees following a successful anti-SLAPP motion


SLAPP013 – Bench Warrant Arrest Not Protected Activity under Anti-SLAPP Statute

California SLAPP Law Podcast

In Episode 13 of the California SLAPP Law podcast (should I have skipped 13, like they do in buildings?), we cover a lot of information that will be useful to any litigator.

Although not directly related to SLAPP law and anti-SLAPP motions, I discuss how and when to bring the various trial motions; Motion for Nonsuit, Motion for Directed Verdict, and the most powerful motion that no one seems to have heard of, the Motion for Judgment. If you’ve ever been confused about which ones are used in bench trials versus jury trials, when they should be brought, and which one is best to use, this podcast will clear it all up.

Then we move onto two recent anti-SLAPP rulings.

The first is Makaeff v. Trump University, LLC (9th Cir.) 715 F. 3d 254. I discussed this case back in Episode 9, but there has been a new development.

As you may recall, Makaeff took some business courses at Trump University, but then later sued, claiming the classes. Trump University countersued, claiming that Makaeff’s criticism of Trump University amounted to defamation. Makaeff responded to the suit with and anti-SLAPP motion. The district court denied the anti-SLAPP motion, but that denial was reversed on appeal. Now the victorious party on her anti-SLAPP motion, Makaeff brought a motion for attorney fees.

We discuss the number of hours Makaeff’s attorneys claimed to have spent on the anti-SLAPP motion and appeal, the opposition to the motion for attorney fees, and how the court responded.

In that context, we discuss Serrano v. Unruh (1982) 32 Cal.3d 621, wherein the California Supreme Court held that where an attorney overreaches in a fee application, fees can be denied in their entirety. Serrano cited to the following cases in reaching that conclusion.

See, e.g., Copeland v. Marshall, 641 F.2d 880, 902-903 [not allowable are hours on which plaintiff did not prevail or “hours that simply should not have been spent at all, such as where attorneys’ efforts are unorganized or duplicative. This may occur … when young associates’ labors are inadequately organized by supervising partners”]; Gagne v. Maher, 594 F.2d 336, 345 [excessive time spent]; Lund v. Affleck (1st Cir. 1978) 587 F.2d 75, 77 [if initial claim is “exorbitant” and time unreasonable, court should “refuse the further compensation”]; Reynolds v. Coomey (1st Cir. 1978) 567 F.2d 1166, 1167 [duplication of effort]; Farris v. Cox (N.D.Cal. 1981) 508 F.Supp. 222, 227 [time on fee petition denied for “overreaching”]; Vocca v. Playboy Hotel of Chicago, Inc. (N.D.Ill. 1981) 519 F.Supp. 900, 901-902 [fee denied in entirety on ground of counsel’s dilatoriness and hours claimed for clerical work]; Jordan v. United States Dept. of Justice (D.D.C. 1981) 89 F.R.D. 537, 540 [fee denied in entirety on ground of unreasonable request and inadequate documentation].

Next, we discuss Anderson v. Geist (2015) (no citation yet available). In Anderson, two deputies executed a bench warrant on a woman, not realizing the warrant had been withdrawn. The woman sued for defamation and a number of other claims. The deputies responded with an anti-SLAPP motion, claiming that the arrest was protected activity. Listen to the podcast to see if that strategy worked.


SLAPP012 – Three Ways to Bring an Anti-SLAPP Motion Against an Ambiguous Complaint

California SLAPP Law Podcast

Sometimes you just know that a SLAPP is hiding in the complaint, but the complaint is so ambiguous that the SLAPP allegations are unclear. What to do?

In this episode, I tell you how to file an anti-SLAPP motion against an ambiguous complaint, which sometimes involves first beating it into shape. I have three approaches, which I call Demurrer, Discovery and Damn the Torpedoes.

1.  Demurrer Approach.

As you can probably guess, the demurrer approach uses a demurrer to the complaint as the means to force plaintiff/cross-complainant to better set forth the SLAPP allegations.

In one case, I sent a demand letter and draft complaint to defendant, demanding the amount owed to my client. When defendant did not respond, I filed and served the complaint.

Defendant responded with a cross-complaint, alleging a cause of action for Intentional Infliction of Emotional Distress (“IIED”). In the general allegations of the cross-complaint, defendant made reference to the demand letter and draft complaint, and those allegations were incorporated into the claim for IIED, but it was very unclear what defendant was claiming has caused him the emotional distress. If he was asserting that the letter and draft complaint were the culprits, those would be protected under the litigation privilege, and the cross-complaint would be a clear SLAPP.

I demurred to the cross-complaint, and defendant took the bait. His attorney filed a first amended cross-complaint, and this time made very clear that the letter and draft complaint had caused the stress. I was then able to file the anti-SLAPP motion, which was granted.

2.  Discovery Approach

The downside to the demurrer approach is that you may run into a lazy judge, who declines to rule on the demurrer, telling you instead to “flesh out” the meaning of the allegations with discovery. If your demurrer is overruled, then it is likely you will by then be beyond the 60-day deadline for bringing your anti-SLAPP motion, and will have to seek permission.

Instead, if you act quickly, you can complete a round of discovery before the deadline for having to file the anti-SLAPP motion. That discovery can nail down the meaning behind the allegations of the complaint, and the responses can be used to support the anti-SLAPP motion.

3.  Damn the Torpedoes

Finally, there is the Direct Approach, which I refer as “Damn the Torpedoes”.

In the case of an anti-SLAPP motion I filed this week, the complaint alleges a claim for Intentional Interference with Prospective Economic Advantage. Plaintiff alleges only that my client spoke to others, and those conversations interfered with the business.

In this case, my client knows who he talked to, so we can fill in the blanks without the need for a demurrer or discovery. In essence, the anti-SLAPP motion sets forth the details left out of the complaint. It identifies who my client contacted, and then shows why each of those conversations is privileged. The worst that could happen is that plaintiff will make a false claim that someone else was contacted, but that still has value, since early in the action we will have forced plaintiff to put his cards on the table.

Listen to the podcast for a far more detailed discussion, including the pros and cons, for each approach.


SLAPP011 – Six Tips to Win Your Motion for Attorney Fees Following an Anti-SLAPP Motion

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In Episode 11 of the California SLAPP Law Podcast, I provide you with six tips to win your attorney fee motions following a successful anti-SLAPP motion.

There are so many unscrupulous attorneys who inflate their fee applications, that some judges feel the need to reduce the fees requested on any motion for attorney fees. To make sure you don’t get lumped in with the other attorneys, here are the ways to show the judge that every dollar is justified.

In other news, I bring you up to speed on Demetriades v. Yelp, which was discussed in Episode 10. Demetriades is suing Yelp to enjoin it from falsely advertising that its reviews are trustworthy. Yelp brought an unsuccessful anti-SLAPP motion, and even though the Court of Appeal held that the anti-SLAPP motion should be denied, Yelp is not going quietly into the night. It is seeking review by the Supremes.

Finally, we discuss a very entertaining case at Morris & Stone. As discussed in Episode 9, a company filed a bogus lawsuit against our client in an attempt to prevent him from competing. We responded with an anti-SLAPP motion, which stayed all discovery. The plaintiff is not pleased, since it wanted to use discovery to harass our client. I predicted that it also would not go quietly into the night, and that it would seek relief from the discovery stay. You’ll hear the arguments plaintiff’s counsel (unsuccessfully) made as to why the discovery stay does not apply to them. I’ll show you how I defeated their ex parte application as well.


SLAPP010 – Travolta and Yelp Anti-SLAPP Motions

California SLAPP Law Podcast

In this week’s podcast, we look at two unsuccessful anti-SLAPP motions that were decided this week, and examine where the attorneys went wrong.

Yelp continues to get into mischief. In Episode 4 of the California SLAPP Law Podcast, we discussed the case of Yelp v. McMillan Law Group, wherein Yelp is suing a law firm, claiming that it posted fake reviews, and that Yelp was damaged as a result. McMillan Law Group filed an anti-SLAPP motion, and we are awaiting the results.

Now, in the case of Demetriades v. Yelp, the tables have been turned, and the plaintiff is essentially suing Yelp for its fake reviews about itself. Yelp tries to promote the notion that its reviews are filtered and trustworthy, despite all evidence to the contrary. Demetriades, who has had several bogus reviews written about his restaurant, didn’t try to sue Yelp for those bogus reviews, but instead sued Yelp for claiming that reviews on the site are trustworthy. Yelp brought an anti-SLAPP motion, which was DENIED.

We also examined Douglas Gotterba v. John Travota, where Travolta’s former pilot from the 80’s has decided to publish a tell-all book about Travolta, that apparently alleges a homosexual lifestyle. When Travolta threatened to sue, claiming Gotterba was subject to a confidentiality agreement, Gotterba did exactly what you are supposed to do, and filed a declaratory relief action.

Basically, Gotterba is simply asking a court to determine if he is in fact subject to a confidentiality agreement. If so, he will slunk away into the night. If not, then he will be free to publish the book. Great solution, right?

Not according to Travolta’s attorneys. they claimed that Gotterba’s action was really just an attempt to get Travolta’s attorneys to stop sending warning letters to publishers. Since pre-litigation letters are privileged, they brought an anti-SLAPP motion against the declaratory relief action.

The Court of Appeal ruled that the letters may have triggered the action, but they are not the basis of the action. Motion DENIED.


SLAPP009 – Scope of Discovery after Anti-SLAPP Motion

California SLAPP Law Podcast

It was a great anti-SLAPP week at Morris & Stone. Today we discuss two of our motions, and the result of last week’s Evil Yogurt Maker case. We will examine the scope of discovery following the filing of an anti-SLAPP motion, and apply those standards to a pending motion.

Specifically, I discuss the case of Britts v. Superior Court (2006) 145 Cal.App.4th 1112. In Britts, the defendant filed an anti-SLAPP motion on the same day that his opposition to a motion to compel was due. He argued that under the plain wording of CCP section 425.16(g), the motion stays all discovery “proceedings”, and therefore he was not required to file any opposition to the motion. The trial court disagreed, and granted the unopposed motion to compel, and awarded $5,000 in sanctions.

Britts took the matter up on a writ, and the Court of Appeal ordered the trial court to vacate the ruling on the motion to compel and for sanctions, holding that the statute means exactly what it says; an anti-SLAPP motion stops all discovery proceedings, including any pending discovery motions.

The trial court had also made a strange ruling (on an earlier anti-SLAPP motion in the case) that the defendant was not entitled to all the attorney fees incurred on the motion, because he had failed to meet and confer with opposing counsel. In other words, the court felt that if plaintiff’s counsel had simply been informed that one of the causes of action was a SLAPP, the complaint could have been amended and the motion avoided. That was not a holding from the case, but I explain why that reasoning is terrible and, if followed, could constitute malpractice.

I also discuss the case of Blanchard v. DirecTV (2004) 123 Cal.App.4th 903. In Blanchard, the court deliniated the scope of permissible discovery after an anti-SLAPP motion has been filed.  As set forth in CCP section 425.16(g), a plaintiff must show good cause before taking ANY discovery after an anti-SLAPP motion has been filed. Good cause means ONLY discovery relevant to the Plaintiff’s burden of establishing a reasonable probability of prevailing on the claim. Discovery that is NOT relevant to a legal defense being asserted by the Defendant in the anti-SLAPP motion is not permitted.

Given that Blanchard permits only discovery related to potential defenses by the defendant, the case of Balzaga v. Fox News (2009) 173 Cal.App.4th 1325 came to the logical conclusion that if a plaintiff seeks leave to pursue discovery on a given defense, the  defendant can prevent that discovery by informing the court that it is waiving that defense.

Finally, I discuss the case of Tutor-Saliba Corp v. Herrara (2006) 136 Cal.App.4th 604. This case sets forth the discretionary standard for granting leave to permit discovery following the filing of an anti-SLAPP motion, and held that a trial court’s decision to disallow discovery “will not be disturbed unless it is arbitrary, capricious, or patently ABSURD.” (Emphasis added.)


SLAPP008 – An Anti-SLAPP Motion Against an Evil Yogurt Shop

California SLAPP Law Podcast

A client found me while searching for information about California Code of Civil Procedure section 425.17, proving that clients do some very sophisticated research on their legal issues. Changing the facts to protect the privacy of my client, he had warned the public about an evil yogurt maker who was falsely claiming to sell organic yogurt, and for that good deed he was hit with a lawsuit for defamation and interference with business.

In today’s podcast, we discuss the elements of CCP section 425.17, which under the proper circumstances will exempt a business versus business claim from the anti-SLAPP statute. In the most basic sense, section 425.17 applies when one business is talking about another business’s goods or services, AND the audience that the business is talking to consists of potential customers, AND the point of the talking is to promote the speaker’s own business.

Will section 425.17 defeat the anti-SLAPP motion, and allow the evil yogurt maker to go forward with his bogus defamation claim? Listen to episode 8 of The California SLAPP Law Podcast and find out.

Case cited:  Sharper Image Corporation v. Target Corporation, 425 F.Supp.2d 1056 (N.D. CA 2006). In this case, Sharper Image, manufacturer of tower air purifier brought action against Target, manufacturers and retailers of competing product, alleging patent and trade dress infringement. Target moved for summary adjudication of plaintiff’s claims and their counterclaims for non-infringement of the asserted patents. Sharper Image separately moved to strike defendants’ tort and state law counterclaims, and in the alternative, moved for judgment on the pleadings of the counterclaims, and for partial summary adjudication on its utility patent infringement claim. Of note for today’s discussion, the court found that the anti-SLAPP motion was excluded by CCP section 425.17, but nonetheless threw out the claim under the alternative motions.

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

Tustin Financial Plaza
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Tustin, CA 92780

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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.

This site seeks to present legal issues in a hopefully entertaining manner. Hyperbolic language should not be taken literally. For example, if I refer to myself as the “Sultan of SLAPP” or the “Pharaoh of Free Speech,” it should not be assumed that I am actually a Sultan or a Pharaoh.

Factual summaries are entirely accurate in the sense of establishing the legal scenario, but are changed as necessary to protect the privacy of the clients.