Statutes

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 »

Washington Supreme Court Shoots Down Unconstitutional Anti-SLAPP Statute

Shooting Down Unconstitutional anti-SLAPP statuteThe Washington legislature has learned that even a good idea can be taken too far.

When Washington decided to enact an anti-SLAPP statute (it was greatly revised in 2010), it certainly had many states’ examples to choose from. Some states, feeling that anti-SLAPP protections are so essential, have added protections that exceed those of California’s anti-SLAPP statute. California was the first state to pass an anti-SLAPP statute, and many states have the based their laws on California’s tested formulation, while others have tinkered.

In the case of Washington, the legislature decided to up the ante by requiring a plaintiff to show by clear and convincing evidence that their case has merit. Even a cursory review of this heightened standard should have made clear that such a requirement is impermissible.

The Seventh Amendment of the United States Constitution guarantees the right to a jury in a civil trial, and that protection exists on the state level through the states’ own constitutions. For example, Washington’s constitution provides:

The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.

California’s Constitution very similarly provides:

Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.

To set the stage for our analysis, let’s forget about anti-SLAPP statutes for the moment, and focus on long-tested motions that are familiar to us. Let’s go back in time to when the states were trying to find ways to clear their trial dockets, and came up with the idea of a summary judgment motion. How is a summary judgment motion – which allows a judge to deprive a party of their right to a jury trial – permissible? Similarly, how is a demurrer permissible?

These procedures pass constitutional muster because the court is not weighing the evidence nor deciding the case. Rather the court is simply determining whether the plaintiff’s evidence, if taken as true, would support the claims. If there are any material conflicts in the evidence, the court must deny the motion for summary judgment and allow the case to go to trial. The court cannot decide those conflicts. In the case of a demurrer, the court does not even consider the evidence, but merely takes all of the allegations as true, and determines whether those allegations are sufficient to state a cause of action.

OK, now we can return to Washington’s anti-SLAPP statute. Revised Code of Washington 4.24.525(4)(b) provides:

A moving party bringing a special motion to strike a claim under this subsection has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion.

But hold on Maude. I have a right to jury in Washington. If you make me prove my case by “clear and convincing” evidence at the commencement of the action, that’s all kinds of wrong. First, I have to prove up my case before I can even conduct discovery, and the clear and convincing standard means I have to prove something to the judge. I shouldn’t have to prove anything to the judge. I have a right to jury, and I’ll do my proving to the jury, thank you very much.

The court can decide only issues of law. That means, the court can decide if my complaint adequately sets forth the elements of the causes of action, and, as in the case of a motion for summary judgment, the court can even decide if my evidence, if taken as true, would be sufficient to support my causes of action. But the court cannot decide my case on the evidence. The court can decide if I have evidence, but it can’t weigh that evidence. But for the court to make a “clear and convincing” determination, it necessarily must weigh the evidence. In doing so, the court has decided my case and deprived me of my right to jury.

So held the Washington Supreme Court. Today, the court found the anti-SLAPP statute to be unconstitutional. In the case of Davis v. Cox, the court held:

Though the statute seeks to “[s]trike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern,” Laws of 2010, ch. 118, § 1(2)(a), we conclude the statute’s evidentiary burden fails to strike the balance that the Washington Constitution requires. Because RCW 4.24.525(4)(b) requires the trial judge to adjudicate factual questions in nonfrivolous claims without a trial, we hold RCW 4.24.525 violates the right of trial by jury under article I, section 21 of the Washington Constitution and is invalid.

No doubt Washington will soon pass a new anti-SLAPP statute which replaces the “clear and convincing” language with “a probability that the plaintiff will prevail on the claim.”

Note to the Washington Legislature. You may want to use California’s anti-SLAPP statute as an example. It’s not perfect, but it’s been battle tested for 25 years.

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.

The Good, The Bad, and The SLAPP Lawsuit: Don’t Sue For Speech Without Consulting With Counsel

I came across the following article by Darren Chaker who, according to the article, spent many years litigating a free speech case, apparently as the plaintiff.  His article provides a nice summary of SLAPP law as it applies to posting critical comments on-line, and the  importance of consulting with counsel before filing any free speech suit.  [Reprinted here with permission.]

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While legitimate criticism is protected, postings which constitute defamation are not. Ibid.; see also Chaker v. Crogan, 428 F.3d 1215, 1223 (9th Cir. 2005). The Supreme Court has explicitly held that “defamation…[is] ‘not within the area of constitutionally protected speech.'” R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (quoted in Chaker, supra, 428 F.3d 1215, 1223 (9th Cir. 2005)).

Prior to filing a lawsuit for comments posted online, it is important to know what a “SLAPP” lawsuit is and if what you believe is defamation is that, or merely protected speech. The acronym “SLAPP” stands for Strategic Lawsuits Against Public Participation, see California Code of Civil Procedure § 425.16. I cite California law, however most states have similar SLAPP laws as California. The crux of SLAPP law allows someone who is sued for doing activity which is protected by the federal or state constitution. If the Defendant’s activity sued for is protected activity, then an anti-SLAPP motion could be filed. An anti-SLAPP motion usually seeks dismissal of “lawsuits that ‘masquerade as ordinary lawsuit’ but are brought to deter common citizens from exercising their political or legal rights or to punish them from doing so.” Batzel v. Smith, 333 F.3d 1018, 1023-24 (9th Cir. 2003).

Keep a couple of things in mind before you go to court:

• Once a Plaintiff files a lawsuit, and Defendant files an anti-SLAPP motion, the complaint is frozen. Thus, Plaintiff cannot amend the lawsuit to avoid the court ruling on the anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 CA4th 1068, 1073) Amendments could frustrate the Legislature’s objective of providing a “quick and inexpensive method of unmasking and dismissing such suits.” See, Simmons at p. 400)

• Plaintiff has the option to dismiss the lawsuit. Nonetheless, Code of Civil Procedure § 425.16 gives the trial court limited jurisdiction to decide whether to award attorney fees and costs to Defendant. (Law Offices of Andrew L. Ellis v. Yang, supra, 178 CA4th at 879, 100 CR3d at 777-778)

• A typical California attorney with 10+ years of experience bills from $325-500/hr. If a person files a lawsuit based on defamation, or other protected right, and loses, the court must award attorney fees to “adequately compensate the defendant for the expense of responding to a baseless lawsuit,” Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 785 (1996). As such, if you lose your case, attorney fees of $12,000-25,000 are typical.

• If you are self represented, this doesn’t buy you any credit with the court for suing someone for doing what the law allowed them to do (e.g. free speech). Self-represented litigants are held to the same standard as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984- 985)  Thus, you can’t say in opposition, “Opps I didn’t know”.

In short, I strongly recommend do NOT file a lawsuit unless an attorney, who is competent in First Amendment law, agrees to file it for you.

I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court’s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada’s analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case continues to be a leading case on viewpoint discrimination. My case is active, living and breathing-forever helping people who once felt oppressed.

Article Source: http://EzineArticles.com/?expert=Darren_Chaker

A Suggestion for the California Legislature

I had a relatively rare moment of brilliance today that may well cure many of the problems with the anti-SLAPP process.

Here is how it came about. I was retained as an expert to opine on the reasonableness of the attorney fees being sought by a law firm that prevailed on an anti-SLAPP motion. As is common, especially among large firms, a victory on an anti-SLAPP motion is viewed as a winning lottery ticket, and the following motion for attorney fees reaches into the stratosphere. In this instance, defense counsel was claiming that 331 hours were spent on the special motion to strike. This was a very basic motion with no special factors to increase the time spent on the motion, such as protracted discovery on the SLAPP issues; just a motion and a reply brief.  My expert declaration resulted in a significant reduction in the fees awarded to the firm, but the firm still received far too much.  It was another typical example where a large firm inflates its bill by 500%, knowing that even if the court cuts the bill in half, the firm will still have a very good pay day.

It’s not supposed to work this way, but the courts simply do not adhere to the controlling authority.  Case authority holds that when an inflated bill is submitted, the offending firm should receive nothing.  Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.  Consider the impact on this firm if the court had followed the law and denied all the fees because of the inflated request.  Undoubtedly the firm would have been far more reasonable with its next request.  But that never happens.  Instead, if the court is offended by the inflated amount, at most it will adjust the amount down as occurred in this case.

The failure of the courts to follow the law in this area has created an additional detrimental effect that I previously witnessed in the bankruptcy court.  At the conclusion of a bankruptcy, the attorney must ask for his fees to be approved by the court.  In an effort to be fair to all the creditors, the bankruptcy judges would often cut the fees in half, so that the attorney along with all the other creditors was taking a hit.  It didn’t take long for bankruptcy attorneys to find a way around this practice.  They all doubled their hourly rates, so if the judge cut the fees they would still be left with their “real” rate.  And so it has become in the anti-SLAPP process.  So many unethical attorneys are inflating their fee bills and asking for $100,000 for a simple anti-SLAPP motion, that some judges automatically reduce them.  But then what happens to attorneys like me that submit an honest fee bill of, say, $18,000?  Some judges are so jaded that they will reduce that bill as well.  This is unfair to the client who now does not receive the full amount paid, and as a result the court is creating another bankruptcy approach where attorneys will be incentivized to inflate their bills as protection against unwarranted reductions.

So, back to my brilliant idea. The California Legislature should change the procedure for recovery of attorney fees on an anti-SLAPP motion. Instead of waiting until after the motion is granted, the new procedure would require that the attorney fees be set forth in the motion. Then (here comes the good part), if the motion is denied, then the party bringing the motion must pay the amount it set forth in its motion to the other side. In this way, padding is greatly discouraged. Every dollar sought in the motion is a dollar the party might have to pay to the other side. The requested fees would likely be far closer to the actual amount of fees.

“But that flies in the face of the anti-SLAPP process, which is supposed to offer defendants a way to dispose of SLAPP actions and recover the fees in doing so”, you say. Well, let’s look at that. If the motion is denied, and assuming the court’s decision to deny the motion was correct, then the action was not a SLAPP action to begin with and the motion should not have been brought. Indeed, that is one of the concerns being expressed by the courts; that anti-SLAPP motions are being brought far too frequently in cases where they do not apply. Further, knowing that the attorney fees may have to be paid to the other side, the incentive to spend many hours on an anti-SLAPP motion is removed, and instead the incentive becomes to do the motion as efficiently as possible.

OK, admittedly I am saying this slightly tongue in cheek. Such a procedure is contrary to the American Rule, and would provide attorney fees to the opposition with no consideration of how much time was spent opposing the motion. So, if my proposal is too bold, a similar result could be achieved by tweaking the anti-SLAPP statutes. Add a provision which states that where the fee bill is inflated, the party receives nothing. You may still end up with situations where a firm will submit a greatly inflated bill in the hope that the court will approve it without review, but on the other hand, a firm claiming 331 hours for a single motion will know that the outlandishness of the claim will result in no fees. Also, in tweaking the statute, lower the threshold for receiving attorney fees for successfully opposing an anti-SLAPP motion.

Courts Expressing Frustration Over Automatic Right to Appeal SLAPP Rulings

The anti-SLAPP process was intended to provide a quick, hopefully inexpensive means by which defendants, who were being sued in an effort to silence their free speech or right of redress, could dispose of such actions. But given time, attorneys and their clients will find a way to subvert almost any well-intentioned law. The American with Disabilities Act is another such example, where a law intended to prevent discrimination against the disabled morphed into an extortion racket by attorneys.

I have no involvement in the following case, and offer no opinion as to whether the anti-SLAPP process was abused, but the Court of Appeal cites it as a compelling reason why the legislature needs to consider whether the automatic right to appeal an anti-SLAPP ruling was such a good idea.

Here are the facts. A plaintiff in the San Francisco area sued for defamation for statements published in the Pujab Times. The matter dragged on for years, and in the third year some of the Defendants brought an anti-SLAPP motion, even though an earlier anti-SLAPP motion by different defendants had already been denied on the grounds that the Plaintiff was likely to prevail. The trial court again denied the motion, but the defendants appealed that ruling.

In affirming the trial court’s denial of the anti-SLAPP motion, the Court of Appeal stated:

We review the matter de novo, and we affirm, doing so without adding to the burgeoning California jurisprudence as to what is, or is not, an “issue of public interest.” For, such issue or not, plaintiff has met his burden under the anti-SLAPP statute-as the Jammu defendants essentially conceded. And we affirm with the observation that, however efficacious the anti-SLAPP procedure may be in the right case, it can be badly abused in the wrong one, resulting in substantial cost-and prejudicial delay. It is time for plaintiff’s case to be heard on the merits. Perhaps it is also time for the Legislature to revisit whether a defendant losing an anti-SLAPP motion has an absolute right to appeal.

In it’s decision, the Court discusses the history of the anti-SLAPP statute at length, including the amendment that was made in order to clear up confusion over what constituted a matter of “public interest”.

Shortly after this amendment, the Supreme Court decided Briggs, holding that an anti-SLAPP motion brought under section 425.16, subdivisions (e)(1) and (2) did not need to show that the statement concerned an issue of public significance. Doing so, the court expressly relied on the newly added language that section 425.16 “shall be construed broadly.” ( Briggs, supra, 19 Cal.4th at p. 1119, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Interestingly-if not presciently-the majority opinion ends with the observation that “[i]f we today mistake the Legislature’s intention, the Legislature may easily amend the statute.” ( Id. at p. 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564.) In dissent, Justice Baxter expressed concern that “[t]he majority’s holding expands the definition of a SLAPP suit to include a potentially huge number of cases, thereby making the special motion to strike available in an untold number of legal actions that will bear no resemblance to the paradigm retaliatory SLAPP suit to which the remedial legislation was specifically addressed.” ( Id. at p. 1129, 81 Cal.Rptr.2d 471, 969 P.2d 564 (conc. & dis. opn. of Baxter, J.).)

Whatever the reason, concern quickly galvanized in the direction that the anti-SLAPP statute was being misused. This concern immediately made its way to the Legislature, which in the 1999-2000 session, passed a bill precluding application of the anti-SLAPP statute to purely consumer interest actions. But Governor Davis vetoed the bill. This concern was resurrected in the 2003-2004 session, in Senate Bill 515,FN10 which passed, and became the new Code of Civil Procedure section 425.17, which begins with this observation: “The Legislature finds and declares that there has been a disturbing abuse of Section 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16.” (Stats.2003, ch. 338, § 1.)

Concern that the anti-SLAPP procedure was being abused also extended to the courts, where various justices expressed the concern in various ways. Comments in three cases illustrate the point.

Navallier v. Sletten, supra, 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703, involved the issue whether a defendant’s having filed counterclaims in a prior, unrelated proceeding in federal court was one arising from “protected activity.” ( Id. at p. 85, 124 Cal.Rptr.2d 530, 52 P.3d 703.) A divided Supreme Court held that it was. Claiming that such holding was an unwarranted expansion of the anti-SLAPP law, dissenting Justice Brown, writing for herself and Justices Baxter and Chin, asserted that the majority’s “presumptive application of section 425.16 will burden parties with meritorious claims and chill parties with nonfrivolus ones.” And she added this flourish: “The cure has become the disease-SLAPP motions are now just the latest form of abusive litigation.” ( Navellier v. Sletten, supra, 29 Cal.4th at p. 96, 124 Cal.Rptr.2d 530, 52 P.3d 703 (dis. opn. of Brown, J.).)

Moore v. Shaw (2004) 116 Cal.App.4th 182, 10 Cal.Rptr.3d 154 was a defendant’s appeal from the denial of an anti-SLAPP motion. The Court of Appeal affirmed and, holding that the motion was frivolous, reversed the trial court’s denial of attorney fees to the plaintiff. Doing so, Presiding Justice Klein ended with this: “We cannot help but observe the increasing frequency with which anti-SLAPP motions are brought, imposing an added burden on opposing parties as well as the courts. While a special motion to strike is an appropriate screening mechanism to eliminate meritless litigation at an early stage, such motions should only be brought when they fit within the parameters of section 425.16.” ( Id. at p. 200, fn. 11, 10 Cal.Rptr.3d 154.)

Moran v. Endres (2006) 135 Cal.App.4th 952, 37 Cal.Rptr.3d 786was an appeal by defendants who had been denied attorney fees, which defendants had prevailed in obtaining dismissal of only “one of many causes of action,” ( id. at p. 953, 37 Cal.Rptr.3d 786) and that for conspiracy, which is not a cause of action in any event. ( Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511, 28 Cal.Rptr.2d 475, 869 P.2d 454.) Affirming the denial of attorney fees, an exasperated Justice Armstrong observed: “Section 425.16 was enacted because the Legislature found that ‘it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.’ Neither the public’s nor defendant’s right to participate was advanced by this motion.” ( Moran v. Endres, supra, at p. 955, 37 Cal.Rptr.3d 786.) A concurring Justice Mosk added this: “Code of Civil Procedure section 425.16 … has resulted in numerous appeals that involve various ambiguities and apparent unintended consequences.” ( Id. at p. 956, 37 Cal.Rptr.3d 786 (conc. opn. of Mosk, J.).)

The obvious example is found in the numerous cases that involve complaints that simply do not “arise from” protected activity, but generate anti-SLAPP motions nevertheless. Examples include actions against attorneys. ( Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1539, 52 Cal.Rptr.3d 712 [” ‘garden variety’ attorney malpractice”]; Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1187, 20 Cal.Rptr.3d 621 [duty of loyalty]; Jesperson v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630, 7 Cal.Rptr.3d 715; Moore v. Shaw, supra, 116 Cal.App.4th 182, 10 Cal.Rptr.3d 154 [breach of trust]; Beech v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82, 1 Cal.Rptr.3d 454 [failure to timely arbitrate].) And personal injury claims. ( Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 193, 6 Cal.Rptr.3d 494 [“garden variety personal injury claims” against dietary product manufacturer].) And insurance coverage cases. ( State Farm General Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, 975, 121 Cal.Rptr.2d 719 [declaratory relief action to resolve coverage issues].)

But another, and more subtle, abuse can be found in a case where the defendant could in good faith claim that plaintiff’s action arose from protected activity, and thus could meet the burden under step one of the anti-SLAPP analysis. But as seen, that is only the beginning. And suppose further that defendant (or defendant’s attorney) knows that the plaintiff could meet the burden under step two. Defendant nevertheless files the anti-SLAPP motion, knowing that it will cause plaintiff to expend thousands of dollars to oppose it, all the while causing plaintiff’s case, and ability to do discovery, to be stayed. Would this not constitute a misuse of the procedure? But even if it might not in the abstract, might it not here, where an earlier anti-SLAPP motion had been denied, the court expressly holding that plaintiff had met his burden under step two-a holding, not incidentally, made against three defendants who, unlike the Jammu defendants, were not even the publishers of the articles. We would say that this filing alone would be an abuse. And certainly when followed by the abuse coup de grâce-the appeal.

A Losing Defendant’s Right to Appeal Is the Aspect of the Anti-SLAPP Statute Most Subject to Abuse

As originally enacted, section 425.16 made no reference to appeal (though obviously a losing plaintiff whose case was stricken could appeal any judgment of dismissal). In 1999 subsection (j) was added to the statute, providing that “[a]n order granting or denying a special motion to strike shall be appealable under section 904.1.” FN14 (Stats.1999, ch. 960, § 1.)

The legislative history leading to subdivision (i) is not particularly illuminating, as shown by the brief discussion in the Senate Judiciary Report, which reads in its entirety as follows: “1. Stated need for legislation [¶] According to the proponents, this bill would further the purpose of the anti-SLAPP statute by allowing the defendant to immediately appeal a denial of a special motion to strike. Without this ability, a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated. [¶] The proponents contend that when a meritorious anti-SLAPP motion is denied, the defendant, under current law, has only two options. The first is to file a writ of appeal [ sic ], which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the anti-SLAPP statute is useless and has failed to protect the defendant’s constitutional rights. The proponents assert that since the right of petition and free speech expressly granted by the U.S. Constitution are at issue when these motions are filed, the defendant should have the immediate right to appeal and have the matter reviewed by a higher court. [¶] The author is submitting amendments in Committee to clarify that the right of appeal would apply to motions granted or denied in order to assure that both the plaintiff and defendant are given equal rights to appeal an adverse order.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1675 (1999-2000 Reg. Sess.) as amended May 28, 1999, p. 3.)

The right of a defendant to appeal a losing anti-SLAPP motion quickly became, like so much else of the anti-SLAPP procedure, the subject of criticism. Indeed, such criticism was acknowledged by the Legislature itself in 2003 when, in discussing Senate Bill 515, the Senate Judiciary Committee noted the claim by the proponent of the bill “that current law is being used by defendants to unreasonably delay a case from being heard on the merits, thus adding litigation costs and making it more cumbersome for plaintiffs to pursue legitimate claims…. The filing of the meritless SLAPP motion by the defendant, even if denied by the court, is instantly appealable, which allows the defendant to continue its unlawful practice for up to two years, the time of the appeal.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 515 (2003-2004 Reg. Sess.) as amended May 1, 2003, pp. 11-12.) As enacted, section 425.17 expressly states that if a motion is denied based on that section, “the appeal provisions … of section 425.16 … do not apply.” (§ 425.17, subd. (e).) Unfortunately, section 425.16 was left untouched.

The concern about possible abuse of a losing defendant’s right to appeal caught the attention of the Supreme Court in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958. While holding that the defendant’s appeal stayed all proceedings in the trial court affecting the merits of the case, the court recognized the opportunity for abuse: “In light of our holding today, some anti-SLAPP appeals will undoubtedly delay litigation even though the appeal is frivolous or insubstantial. As the Court of Appeal observed and plaintiffs contend, such a result may encourage defendants to ‘misuse the [anti-SLAPP] motions to delay meritorious litigation or for other purely strategic purposes.’ ” ( Id. at p. 195, 25 Cal.Rptr.3d 298, 106 P.3d 958.)

Commenting on this in Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283-284, 35 Cal.Rptr.3d 909 ( Olsen ), Justice Sims observed as follows: “Both the Legislature and the Supreme Court have acknowledged the ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse. As to abuse occasioned by the stay of proceedings on appeal of the denial of an anti-SLAPP motion, the Supreme Court has ‘encouraged’ us ‘to resolve these … appeals as expeditiously as possible. To this end, reviewing courts should dismiss frivolous appeals as soon as practicable and do everything in their power to ” ‘prevent … frustration of the relief granted.’ ” ‘ [Citation.]” (Fns.omitted.) Nothwithstanding our great respect for Justice Sims, such dismissal is easier said than done.

Olsen involved an appeal that claimed that the trial court abused its discretion in denying an anti-SLAPP motion that was clearly untimely, an appeal, Justice Sims rightly concluded, that indisputably had no merit. However, while ultimately dismissing the appeal, Justice Sims first recognized the “general rule” that a motion to dismiss should never be granted if ruling on the motion “requires a consideration of the merits.” ( Olsen, supra, at p. 284, 35 Cal.Rptr.3d 909, citing Reed v. Norman (1957) 48 Cal.2d 338, 342, 309 P.2d 809.) “The general rule is grounded on policies of avoiding double work by this court and avoiding unwarranted advancement of the case on calendar. (See 9 Witkin, Cal. Procedure [ (5th ed. 2010) ] Appeal, §§ [747-748], pp. [811-812].) The Supreme Court’s admonition for dispatch in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958, warrants an exception from the general rule here.” ( Olsen, supra, 134 Cal.App.4th at p. 284, fn. 5, 35 Cal.Rptr.3d 909). From there, Justice Sims went on to grant the motion to dismiss the appeal because it was “frivolous.” ( Olsen, supra, 134 Cal.App.4th at p. 280, 35 Cal.Rptr.3d 909.)

The decision ended with an appeal to the Legislature:

It is now almost five years since plaintiff filed his lawsuit, and trial is not yet in sight. Such delay hardly seems defensible, particularly when it is due in no small part to non-meritorious appeals by defendants who lost anti-SLAPP motions, the first appeal voluntarily dismissed after languishing for a long period (see fn. 2 ante ), and this appeal rejected as utterly without merit. As we said, something is wrong with this picture, and we hope the Legislature will see fit to change it.

A Recent Victory Illustrates anti-SLAPP Motion Application

A recent anti-SLAPP victory by our office serves to illustrate the application of the anti-SLAPP laws and how the process, that was meant to quickly dispose of SLAPP cases, can get so convoluted.

The Case of the Outraged City Council Member

In this case, our (future) client addressed a city council meeting on a matter she felt was important to the city. Specifically, the city had been rocked by some controversy involving city council members, and our client was speaking to the issue of how the newly-elected council members should go about performing their duties. To illustrate the point, she cited the example of a former council member who had taken money from special interests. The city council member in question took umbrage with the accusation that she had acted unethically, and sued our client for defamation. We were retained to fight the defamation action.

It is seldom that we are presented with such a clear SLAPP suit. Remember, SLAPP stands for Strategic Lawsuit Against Public Participation. What better example of public participation is there than a citizen addressing their city council? Indeed, under Civil Code section 47, any comments made during a “legislative proceeding” are absolutely privileged (meaning they can never be defamatory). Better yet from the standpoint of an anti-SLAPP motion, section 425.16(e)(1) provides that statements made before a legislative proceeding are protected speech.

So let’s run the facts through the two prongs of the anti-SLAPP analysis. First, as counsel for the defendant, it was our burden to show that the speech was protected within the meaning of the anti-SLAPP statute. That was a no-brainer in this instance, since the words were spoken at a city council meeting. And since the conduct falls under a specific anti-SLAPP section of 425.16, there was no need to show that the topic was a matter of public interest. “Any matter pending before an official proceeding possesses some measure of ‘public significance’ owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights § 425.16 was intended to protect.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1118.)

Our having shown that the speech was protected, the second prong of the anti-SLAPP analysis requires plaintiff to show a reasonable likelihood of success on her claim, which in this case would be impossible. Since section 47 makes speech at a city council meeting absolutely privileged, the speech by definition cannot constitute defamation.

So a slam-dunk anti-SLAPP motion, right? Not quite.

A SLAPP motion puts a stay on all discovery, which is one of the primary benefits of an anti-SLAPP motion because it keeps the plaintiff from using the discovery process as a sledgehammer to try to wear down the defendant. In this case, counsel for Plaintiff had served discovery prior to the anti-SLAPP motion, and argued that the court should permit that discovery prior to ruling on the anti-SLAPP. There is authority for the proposition that a plaintiff should be permitted to conduct discovery to determine whether the defendant acted with malice, because that takes away certain privileges under section 47. However, there is no malice exception for words spoken at a city council meeting, so no amount of discovery by the Plaintiff could have revealed information that would have defeated the anti-SLAPP motion.

Nonetheless, the court granted Plaintiff’s request for discovery, and that added two months to the process. It could have been that the court just did not understand the authorities we provided, but more likely the court was bending over backwards to give the plaintiff access to discovery, specifically because the judge knew she was going to grant the motion, and did not want Plaintiff to have any possible basis for appeal. In that sense, the judge might have done us a favor, but it is frustrating to deal with a frivolous action for an additional two months. We were successful, though, in limiting greatly limiting the discovery. The court denied Plaintiff’s request to take our client’s deposition.

As expected, the discovery revealed nothing useful to the Plaintiff. Instead, the Plaintiff attempted to argue that the conduct by Defendant was “illegal” and therefor not protected. This was another instance where there is authority for the proposition being claimed, but that legal theory had no application to the case at hand. In the case of Flatley v. Mauro, an attorney had sent threatening letters to someone, threatening to sue him if he did not pay a large settlement to a client. Normally, a letter from an attorney in anticipation of litigation would be protected speech under the litigation privilege, but the Flatley court ruled that the attorney’s letters had risen to the level of extortion, and were therefor illegal and unprotected.

Plaintiff was trying to say that our client’s speech at the city council meeting was illegal and therefor unprotected according to Flatley. And how could speech at a city council meeting ever be illegal, you ask? According to Plaintiff, it was illegal because the city council’s own guidelines state that comments should be civil, and Defendant’s comments had not been civil.

Predictably, the court understood that even if the words were interpreted to be rude, a city council’s guidelines do not amount to law, and violating them does not amount to criminal conduct. The court granted our anti-SLAPP motion, striking the defamation complaint and entering judgment in our favor. The court also awarded us over $18,000 in attorney fees against the Plaintiff.

— Aaron Morris
Morris & Stone

A Primer on SLAPP Suits and Anti-SLAPP Motions

I routinely receive calls from parties and attorneys who have run afoul of California’s anti-SLAPP statute. It is clear that business people need to have at least a cursory understanding of what constitutes a SLAPP action before pursuing litigation, since it is equally clear that many attorneys are not conversant with this area of the law.

What is a SLAPP suit, and what is an anti-SLAPP motion?

A “SLAPP suit” is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. I use the expression Spurious Litigation Against Public Participation, since that better captures both the goal of the plaintiff and the nature of the lawsuit, but the standard verbiage is “strategic lawsuit against public participation”.

The action is spurious and frivolous because the typical SLAPP plaintiff does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. The heart of California’s anti-SLAPP legislation is set forth in subpart (e) of Code of Civil Procedure section 425.16, which provides:

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;

(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

To win an anti-SLAPP motion, the defendant must first show that the speech in question falls under one of the four sections set forth above. But that is just the first prong of the analysis. If the defendant proves the speech was protected, the plaintiff can show that he is still likely to prevail on the action. In other words, defamatory speech is not protected simply because it falls under one of the four sections.

So how do you know a SLAPP action when you see it? That is not always obvious, and as many attorneys and their clients have painfully learned, failing to recognize they have created a SLAPP can be extremely costly. One of my recent anti-SLAPP successes provides a good example of how an attorney can be caught in this trap.

I’ll Sue You if You Sue Me.

In this case, our (future) client had entered into a settlement agreement with the defendant in a prior action. The settlement agreement required the defendant company to pay damages to our client, and contained a confidentiality agreement. Two years after the settlement agreement was signed, the defendant had still not paid the damages to the plaintiff, so he retained our firm to sue to collect the money due under the agreement.

We filed the action for breach of contract, attaching a copy of the settlement agreement. The defendant answered the complaint and also filed a cross-complaint, claiming that it was a breach of the confidentially agreement to attach the settlement agreement to the complaint. Incidentally, counsel for defendant had discussed with me his intention to cross-complain on this basis, and I had warned him that would be a really bad idea. He did so anyway.

The reason the cross-complaint was a bad idea was because it was a SLAPP. Do you see why? Remember again what SLAPP stands for – Spurious Litigation Against Public Participation. Under section 42516(e)(1), “any . . . writing made before a . . . judicial proceeding” is an “act in furtherance of person’s right of petition.” Defendant had breached the settlement agreement, so clearly we were entitled to sue for breach of that contract. That is the public participation – taking a case before a court for redress of a grievance. By claiming that we had breached the agreement by attaching the confidential settlement agreement, Defendant was just suing our client for suing. Stated another way, the defendant company was in essence saying, “for daring to make our breach of the agreement public, I’m going to sue you.” I filed an anti-SLAPP motion against the company for the cross-complaint.

So let’s run this case through the two-prong, anti-SLAPP analysis. Our burden was to show that the speech was protected under the anti-SLAPP statute. The speech here was the complaint itself, with the settlement agreement attached. Filing a complaint is a specifically protected activity under the anti-SLAPP statute, and comments made in conjunction with litigation are protected under Section 47. There was no issue that our complaint was a protected activity.

That takes us to the second prong, by which the plaintiff, here the cross-complainant, must show a reasonable likelihood of success on the merits of the case, even if the speech is a protected activity. The company had failed to pay our client the money due under the agreement, so it was clearly in breach, and therefore could not possibly prevail on its own breach of contract claim, since one of the elements of a breach claim is performance.

The court granted our anti-SLAPP motion, to the utter shock of opposing counsel. Counsel had argued that the motion could not be granted because the facts were in dispute. He erroneously thought that, like a motion for summary judgment, the evidence cannot be weighed. But an anti-SLAPP motion is supported by evidence. We provided evidence that the money owed had never been paid, and there was no evidence that could be presented to the contrary.

The company must now pay all of our client’s attorney fees. Fortunately for the company, I am very efficient at these motions, but I have received calls from attorneys facing fees exceeding $100,000 after they unwittingly created a SLAPP action.

Bottom line for businesses: You probably have no desire to become acquainted with the minutia of California’s anti-SLAPP laws, but if you are going to be involved with any litigation, whether bringing or defending an action, the possibility of a SLAPP action needs to be on your mental checklist. As the above example illustrates, it may never be a thought to your attorney, and you will be the one to pay the price.

— Aaron Morris
Morris & Stone

California Makes Impersonation a Crime

Effective January 1, 2011, California joins Texas in making it a crime to impersonate someone on the Internet. Texas limited the statute to social websites, but California’s law is much broader. Here is the new Penal Code section:

528.5.
(a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).
(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.
(c) For purposes of this section, “electronic means” shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name.
(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502.
(f) This section shall not preclude prosecution under any other law.

Attorneys representing parties who have been attacked on the Internet now have an additional arrow in their quivers. You have likely seen cases where someone creates a false Facebook page, for example, pretending to be someone else in order to embarrass that person. Other cyber-stalkers are more subtle, and will post comments on numerous sites by the person they are impersonating in order to create the impression that the person has, say, a venereal disease. Now the attorneys can sue not only for defamation, but for impersonation.

— Aaron Morris
Morris & Stone

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

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