Recent Cases

Just Because the Case Involves Speech, that Does not Automatically Make the Complaint a SLAPP

Man with elephant
Oy. Some judges.

As the old saying goes, to a hammer everything looks like a nail, and I have confessed here that I have a natural bias to view every complaint I see as a SLAPP. But there are many a judge who take this to ridiculous extremes, with no thought of the purpose of the anti-SLAPP statute.

Say it with me judges. “Just because the facts of a case involve speech, that does not automatically make the complaint a SLAPP.”

Today’s tale comes out of Monterey, California. The animal rights group PETA had a beef (see what I did there?) with the way a local zoo was treating its elephants. PETA didn’t like that the human trainers shared unrestricted space with the elephants. Apparently they walk along the elephants to herd them out to the show area, where they talk about the elephants to the paying public.

This presents a problem because if the elephants get unruly, the trainers have to use canes to encourage the elephants to stop acting up. It’s also not a totally safe practice. In 2018 a zoo employee was seriously injured by an elephant that did not like the “aggressive action” taken by an employee. There was a dispute between PETA and the zoo as to whether the use of canes was a violation of California law, designed to prevent cruelty to animals. Read the rest of this entry »

Three Common Mistakes by Defense Counsel on Anti-SLAPP Motions

Mistakes

Like shooting fish in a barrel (although I have never understood why, if the fish are already in a barrel, there would be any need to shoot them).

I (telephonically) attended oral argument on an anti-SLAPP hearing this morning, and it again demonstrated that attorneys are just not thinking through their motions. I was brought in to defend against the motion. In reviewing the motion, I immediately recognized that the attorney for the defendant had made three major mistakes, any one of which would likely guarantee denial of the motion.

Just the facts, ma’am.

This case involves one of those horrible situations where someone stops taking care of their home, and it eventually falls into such disrepair that the government has to step in and mandate repairs, with the threat of selling the home.

The homeowner (the defendant in our case) went along with the process. The homeowner’s insurer actually stepped up and paid for the repairs, and Defendant agreed to all of the planned construction. But in the end, he did not feel that the home had retained its original character, and took to the internet to vent against our client, the contractor who had performed the repairs.

As is so often the case, Defendant was not satisfied to merely tell the true story, explaining why he was unhappy. In these situations, Defendants want to hurt the business they blame for their travails, so they embellish. He made up more and more lies, to the point that he was saying the contractor was never authorized to make repairs, and had “stolen” the insurance proceeds.

Before I was involved, the contractor had sued Defendant for defamation. I was brought in to oppose the anti-SLAPP motion.

Read the rest of this entry »

SLAPP016 – Appealing a Ruling on an Anti-SLAPP Motion

California-SLAPP-Law-Cover-300x300 (1)

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.

Bill Cosby to Give New Deposition in Janice Dickinson’s Defamation Lawsuit

Bill Cosby will give a new deposition in the defamation lawsuit from Janice Dickinson over her allegations of sexual assault.

The former supermodel told Entertainment Tonight in November 2014 the comedian drugged her into unconsciousness and raped her. Cosby’s former attorney Martin Singer responded in a statement to the media calling Dickinson’s story “an outrageous defamatory lie” and “completely fabricated.”

In a hearing Monday, judge Debre K. Weintraub ordered Dickinson will depose Cosby and Singer by Nov. 25 on whether they knew if her allegations were true before denying them to the press. The testimony will follow Cosby’s recent deposition in Judy Huth’s lawsuit (which will be sealed until a Dec. 22 hearing in which the sides will argue if the testimony should be public).

Sourced from: www.hollywoodreporter.com

Recent developments in one of the actions against Bill Cosby illustrate the availability of limited discovery after an anti-SLAPP motion has been filed, and how defamation claims are sometimes used to resurrect actions that would otherwise be barred by the statute of limitation.

Joining the bandwagon of Cosby accusers (or perhaps she was the first) Janice Dickinson stated that she was drugged and raped by Cosby many years ago. Any action for that alleged assault would be far past the statute of limitations, but when Cosby denied the allegations, Dickinson was then free to sue for defamation, claiming that by denying that the rape had occurred, Cosby was in essence calling her a liar. (Or in this case, Cosby’s attorney actually did call her a liar.)

This is a common tactic, and puts an accused party in a precarious position. They can remain silent, in which case everyone will think and the press will report that they must be guilty since they are not denying the charges, or they can speak up and deny the charges, in which case they face a defamation action. Cosby chose to claim innocence, and the defamation suit followed.

Cosby responded with an anti-SLAPP motion, and that led to Dickinson’s request for leave to take Cosby’s deposition.

Celebrities enjoy a benefit that the rest of us plebes don’t, and that is that anything said about them is deemed to be a matter of public interest, triggering the anti-SLAPP statute. The downside is that said celebrities are deemed to be public figures, and given the inherent ability of celebrities to respond to criticism by simply calling a press conference, the law imposes an extra requirement on them to prove defamation. To successfully sue for defamation, they must show that the purportedly defamatory statements were made with malice. Since Dickinson is also a celebrity, she must therefore show that when Cosby called her a liar, he did so with malice.

One way to prove malice is to show that the person making the comment knew it wasn’t true. And thus we go full circle. Dickinson says Cosby raped her, Cosby says he didn’t, so Dickinson says that’s proof of malice because he raped her and knows it.

When an anti-SLAPP motion is filed, the plaintiff can request leave to conduct discovery, and here Dickinson requested leave to take Cosby’s deposition, to prove the malice. It’s a long shot, because the only way Cosby’s testimony would prove malice is if he admits that he raped Dickinson and knew he had raped her when he denied the claim. (Or, I suppose, Cosby could get befuddled and say he doesn’t remember.)

 

Morris & Stone Anti-SLAPP Victory – Witness at EEOC Hearing Protected

EEOC Shield

Every week I get callers complaining about the anti-SLAPP statutes and/or the litigation privilege. The scenario is almost always the same. The caller sued someone for defamation for something they said in conjunction with litigation or an investigation by some government agency, and the caller was hit with an anti-SLAPP motion. The caller is outraged that the anti-SLAPP motion is keeping him from getting damages for the allegedly false statements made in court or court documents.

The outrage is misplaced, because the law is working properly by preventing the callers from doing what they are trying to do. The legal system cannot function without a litigation privilege. That privilege provides that anything said in conjunction with litigation is privileged, and cannot form the basis for a defamation action. And since the speech is privileged, a plaintiff can’t make an end run around the statute by just asserting different causes of action. I have written on this topic before, and the prior article shows what the justice system would be like without the litigation privilege.

Today I argued an anti-SLAPP motion in Los Angeles Superior Court, and the facts of the case provide a real life example of why the litigation privilege is so essential.

Let’s call the plaintiff in this case John. John decided one day that his employer was discriminating against him, and filed a complaint with the EEOC on that basis. There was then a dispute with his employer, with the employer saying John had violated a company policy and John denying that claim. The employer fired John for the alleged violation. John argued to the EEOC that the termination for the alleged violation was just more evidence of discrimination.

The EEOC investigated John’s claims of discrimination, and during that investigation interviewed our client, who also worked for the company. We’ll call him Dave. Read the rest of this entry »

SLAPP001 – Why Every Litigator Must Know California SLAPP Law


California SLAPP Law Podcast

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.

Reporting a Fact is Never Defamatory

Facts are not defamatoryIt is never defamation to report a fact, even if that fact is that a person was charged with a crime they did not commit. I understand why callers sometimes don’t understand this distinction. The completely innocent caller was falsely arrested, so it seems like a newspaper that reports the arrest is somehow making a false statement that the caller committed a crime. But look closer, caller. The paper did not report that you committed the crime, the paper reported that you were ARRESTED for the crime. Truth is an absolute defense to any defamation claim, and it is true that you were arrested.

I also see this come up often in the context of an expunged criminal conviction. The caller was arrested and convicted for some youthful indiscretion, and later had the conviction expunged. Years later, the caller was either fired from or denied a job because a background investigation revealed the conviction. “But I had that expunged, so they shouldn’t be able to report it to my employer!”, the caller exclaims. The caller wants to sue for defamation, because in his mind the offense was expunged, and therefore it never happened. Since it never happened, it must be defamatory to claim that it did, right?

Not so much. Expungement does not change reality. The caller was arrested and convicted, so it is not a false statement to report that fact, and therefore there is no basis for a defamation claim. Note, however, that I am only talking about defamation claims. There are Labor Codes that make it illegal to discriminate on the basis of expunged criminal convictions. Go here for a discussion of those Labor Code sections.

What I don’t understand is how so many attorneys miss this point and pursue doomed defamation claims for their clients.

A recent example of this that caught my eye is a case out of Nevada. As reported by the Las Vegas Sun, the accounting firm of Deloitte & Touche was hired to perform an audit of a company called Global Cash Access Holdings, Inc., which is a publicly traded company that provided cash access services to the Nevada gaming industry.

The accounting firm uncovered information from an FBI bulletin which claimed that the two men who founded the company – Robert Cucinotta and Karim Maskatiya – were involved in criminal activity. As they were required to do by law, Deloitte & Touche disclosed this information to the audit committee. Cucinotta and Maskatiya were not happy with this disclosure, and felt it amounted to defamation because they were never convicted of any crimes and there was no evidence that they did anything criminal. They sued Deloitte & Touche, claiming that the disclosure cost the company $400 million in market capitalization and cost them $100 million personally.

But can you see why the comments by Deloitte & Touche were not actionable defamation? The accounting firm simply reported information that was contained in the FBI bulletin, as it was required by law to do. Certainly if those allegations against two principals of the company proved to be true it would greatly impact the value of the company, so that information was quite properly reported.

The Nevada Supreme Court, in a decision written by Justice Michael Cherry, said, “We agree with our sister jurisdictions that those who are required by law to publish defamatory statements should be privileged in making such statements.” In this case the court said Deloitte’s communication to the audit committee of the cash access company was required by the federal securities law.

Anti-SLAPP Victory — Shaheen Sadeghi v. Delilah Snell

Defamation Road Less TraveledI just wish counsel would run these cases past me before filing a defamation action. Here is a tale of a SLAPP that should have been spotted a mile away.

The tale starts with an article in OC Weekly. The article was about a guy named Shaheen Sadeghi. The article was extremely favorable to Sadeghi, referring to him as the “Curator of Cool” and discussing his amazing success in Orange County. OC Weekly even put his visage on the cover of the paper. Truly, it was a positive article that most would kill for.

But everyone has their detractors, and Sadeghi’s was a woman named Delilah Snell. After disclosing that Snell happens to be the girlfriend of a OC Weekly editor, the article reports on a dustup between Snell and Sadeghi, as told by Snell. Here is what the article said:

Still, some say Sadeghi will do whatever it takes to succeed. Delilah Snell, owner of Road Less Traveled, a shop in Santa Ana that sells environmentally friendly gifts and home goods, met with him in 2008 to discuss an opportunity to move to the Camp. (Full disclosure: Snell is the girlfriend of OC Weekly editor Gustavo Arellano.) She says the rent rate he gave was way too high, at least triple what she was paying, and she declined the offer. Then, she claims, he made a threat. “He basically said to me, ‘If you don’t move into my center, I will copy your business,'” she says.

Snell, co-founder of the Patchwork Indie Arts & Crafts Festival and a pioneer in Orange County’s eco-movement, believes her store is the model for the Camp’s SEED People’s Market, an airy, 12,000-square-foot gallery-type outlet that sells sustainable products and handmade crafts. Sadeghi owns the store with his wife, Linda. Snell claims that SEED has approached many of the vendors featured at Road Less Traveled and even used a photo of her shop in a promotional email sent out to customers. (The Weekly has a copy of the email.)

The article then goes on to tell Sadeghi’s side of the story:

Of Snell’s accusations, Sadeghi responds, “I think she’s full of it.” He says his business plan for SEED was dated “five years before she developed a business plan.”

“It’s a whole different store, whole different vibe,” he says, “and it has nothing to do with Road Less Traveled.”

The article then returns to singing the praises of Sadeghi, providing examples of how he is beloved by his tenants at his business centers like The Lab in Costa Mesa.

Sadeghi sued Snell in Orange County Superior Court, alleging in his complaint that Snell “orally accused Mr. Sadeghi of threatening to copy Ms. Snell’s business idea and plan if Ms. Snell did not move into Plaintiff’s retail center.” Sadeghi then alleged causes of action for slander, slander per se, libel, libel per se, invasion of privacy/false light, intentional interference with economic prospective advantage (sic), negligent interference with economic prospective advantage (sic), unfair competition, and injunctive relief. Whew! All arising from the statements Snell allegedly made to the OC Weekly, claiming that Sadeghi had said “If you don’t move into my center, I will copy your business.” Snell responded with an anti-SLAPP motion.

A quick aside to discuss the “Wall of Wrong”.

A potential client will call me, and during the call will tell me about 20 evil deeds committed by the defendant. In their mind, they have been horribly wronged, and they want to sue. Fair enough, but for a legal action each wrongful deed must be viewed independently to determine if it is actionable. I call the wrongful acts the “Wall of Wrong”, and each wrongful act is an item on that wall. (I considered calling it the Shelves of Wrong, but that didn’t seem as catchy.) I explain to the client that to determine if there is a case, we must walk up to the wall, take down each item and examine it independently to see if it will support an action. If not, it is tossed away never to be discussed again.

The reason this exercise is so important is because the client groups all the perceived wrongdoing together, and views it as a single act that certainly must support an action. But when all the conduct that does not support the action is stripped away, the client will often see that there is no action or that what is left remaining is pretty petty.

One more point to keep in mind in the defamation context is that just because something is false does not mean it is defamatory.

So let’s take Mr. Sadeghi to the Wall of Wrong to see if he has a case. Here, there are only two items to examine: (1) the claim that he was going to copy Snell’s business, and (2) that he pressured Snell to lease space in his center with the aforesaid threat. Let’s take those items off the shelf one at a time and decide if they will support a suit.

“I will copy your business.”

Sadeghi alleged that he never said he was going to copy Snell’s business. So, is it defamatory to falsely claim that someone said he was going to copy your business? Of course not. That statement, whether true or false, does not accuse Sadeghi of any wrongdoing. Imitation is the sincerest form of flattery. As the court put it in granting the anti-SLAPP motion, “Pepsi copies Coke. Gimbel’s Copies Macy’s. This is the nature of business.” Mr. Sadeghi, take that statement from the Wall of Wrong and never speak of it again.

Pressuring Snell to lease space.

Is it wrong to pressure someone to lease space in a mall? Of course not. But let’s refine that a little. Is it wrong to say you will copy someone’s business if they don’t lease space from you? Sometimes creating an analogous fact pattern makes it easier to analyze. Let’s say you have a chain of pizza restaurants, and a landlord comes to you and says, “we really want a pizza place like yours in our center, so we just want you to know that if you don’t lease the space, we’re going to create a pizza place just like yours for our center.”

Anything wrong with that? Sure, he’s pressuring you to rent the space with the threat of opening a competitor if you don’t, but that’s fair. When a landlord is looking for an anchor store in their mall, don’t you think they play Macy’s and Neiman Marcus off one another? Mr. Sadeghi, take that statement from the Wall of Wrong and never speak of it again.

So we are left with nothing on the Wall of Wrong, meaning that there is no case to pursue. This case should never have been filed, and the court properly granted the anti-SLAPP motion.

A SLAPP is not saved by numerous legal theories.

The other essential takeaway from this case is that nine causes of action do not a case make if the basis for the action is defective. In other words, if it was not defamatory for Snell to claim that Sadeghi said “If you don’t move into my center, I will copy your business,” then those words will not support any other legal theories like intentional infliction of emotional distress or unfair competition.

Texas Judge Still Unclear on SLAPP Law

Internet Defamation SucksI came across this humorous article that combines local politics and what certainly appears to be a SLAPP suit, although the judge couldn’t see it.

I get about one call a week that begins with the statement, “We’ve got to do something about this SLAPP law.”  In every instance so far, the caller thinks the SLAPP statute is a really bad idea because they filed a SLAPP, and got hit with an anti-SLAPP motion.  “We’ve got to do something about this SLAPP law” translates to “this SLAPP law really stinks because it is keeping me from suing someone who said something I don’t like.”

For a real-life example of the very purpose of the SLAPP suit, and the machinations that can pop up when someone tries to avail themselves of the SLAPP statute, go to Bullies: The Story of a SLAPP Suit Gone Wild.

By the way, this story presents a lesson that everyone should have figured out long ago. If your name is, say, Melissa Kingston, you should at the very least own the domain name melissakingston.com. The reasons are myriad. At the very, very least, Ms. Kingston may someday become a famous author, and would want to be able to promote her books on that website. Also, if another Melissa Kingston gets the name first and puts up a website about devil worship, some might mistakenly think she is the one promoting herself as the devil’s spawn.

Finally, and the relevant point to this article, owning your name on the Internet is very cheap insurance. If someone takes a dislike to you and [yourname].com is just sitting there ripe for the plucking, your detractor can buy that name and get into all kinds of mischief. It’s not bullet proof protection by any means — seeing that [yourname].com is taken, the detractor will just settle for [yourname]sucks.com — but the latter name is automatically recognizable as a protest site, whereas the former is not. Right now, if you have not done so already, go to Go Daddy and check on the availability of your name, and if it is there, buy it. The cost to own your name on the Internet is about 87 cents per month, and that includes a free landing page, where you could post your favorite picture or quote if you can’t think of anything else to do with it for now.

An Employee’s Report to Human Resources is Protected by SLAPP Statute

Human Resources Internet DefamationAlways remember when reviewing a complaint to see if it is a potential SLAPP that the anti-SLAPP statute is not only about speech, it includes the right of redress. Then, whenever you see that the defendant has complained to someone — anyone — consider whether that is a natural step one would pursue in seeking redress.

We were the first firm (that we know of anyway) to successfully pursue an anti-SLAPP motion based on a report to a bank. Our client’s partner had opened a credit card in the name of the company, and when our client found out, he went to the bank and closed the account, informing the bank personnel that his partner had committed fraud. The partner sued for defamation, and we successfully brought an anti-SLAPP motion on the grounds that reporting the fraud to the bank was the first logical step dealing with the fraud. Stated another way, all would recognize that if our client had gone to the police and reported the fraud, that would be protected, but who would go directly to the police without first running to the bank to get the card cancelled in order to stop any false charges? The court agreed with my argument that the report to the bank is part of the same right of redress.

And so it was found in the just reported case of Aber v. Comstock. There, and employee brought a claim against her employer and two of its employees for sexual assault. Comstock, one of the employees who Aber was suing, filed a cross-complaint against Aber for defamation and intentional infliction of emotional distress.

Comstock’s case was likely doomed from the start, because as I have already explained here, suing someone for suing will almost always be a SLAPP, and he even alleged that part of the defamation was the report to the police, which is clearly protected. Specifically, Comstock alleged that Aber “orally published false statements about COMSTOCK to third parties, including but not limited to, friends, employees of Wolters Kluwer, health care practitioners, and the police.” The court reviewed the law that applied to each of these statements, and the most interesting was the analysis of the statement Aber made to her employer’s HR representative.

Were Ader’s statements to the HR department protected under the SLAPP statute?

An earlier case (Olaes v. National Mutual Ins. Co.) had found that statements to a company’s HR department were not part of “an official preceding authorized by law” and therefore did not fall under the SLAPP statute. Here, however, the court noted that a U.S. Supreme Court case (Faragher v. City of Boca Raton) had found that the failure of an employee to take advantage of corrective opportunities afforded by the employer could be used as an affirmative defense against a claim by the employee. So, put them together. Aber did not have to report the alleged assault to HR, but had she failed to do so, then her subsequent action for the assault could have been defeated. Bingo. That makes the report to HR a necessary part of the right of redress, and pulls it into the anti-SLAPP statute.

The case was properly decided, but is a little concerning given the course the court followed. The justices shoe-horned the report to HR into the SLAPP statute by finding it was necessary in order to preserve the ultimate legal action. As we demonstrated with our credit card case, the standard need not be so stringent, and instead the determining factor should be whether the conduct was a natural part of the process.

Go here to see the complete decision in Lisa Aber v. Michael Comstock.

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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