SLAPP032 – The 3 Most-Often Miscited Anti-SLAPP Cases

California SLAPP Law

We begin Episode 32 with the discussion of how Morris & Stone just defeated an anti-SLAPP motion. I reveal the common (and fatal) mistake made by defense counsel when they pursue anti-SLAPP motions.

And on the topic of mistakes, based on my prior article, we turn to the three cases that counsel almost always cite improperly when defending against an anti-SLAPP motion. Listen and find out what these three cases really stand for:

Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858.

Weinberg v. Feisel (2003) 110 Cal.App.4th 1122.

Flatley v. Mauro (2006) 39 Cal.4th 299.

Finally, in the after-show, I reveal a successful strategy to obtain a trial continuance, even when the judge has already said no.

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.

Mistake #1 – Failing to follow Baral v. Schnitt.

An anti-SLAPP motion is a “Special” Motion to Strike, but it remains a motion to strike.

Baral v. Schnitt sets forth the process for seeking to strike individual allegations of a complaint. It begins with IDENTIFYING those allegations in the notice of motion. If you fail to identify what you are seeking to strike, then the motion becomes an “all-or-none” proposition. If all you ask for is that the complaint, or individual claims, be stricken under the anti-SLAPP statute, then you will lose if there are sufficient allegations for the claim to survive.

In this case, the argument could be made that some of the allegations should be stricken. For example, the attorney had alleged that it was defamatory for the Defendant to state that the house was a “hovel.” That’s a matter of opinion (although I would have argued that the statement still questioned the professionalism of the contractor, and case law holds that such background statements do not necessarily need to be stricken).

Instead of identifying what he wanted stricken, defense counsel had simply stated that the court could strike individual allegations. It doesn’t work that way. It would violate due process for the court to strike allegations, when I have not even been informed which allegations the Defendant is seeking to strike. Such would not fly on a traditional motion to strike, so it is equally inappropriate on a special motion to strike.

Mistake #2 – Thinking that discussions of investigations are privileged.

I have seen this so many times, and I’m not totally sure it’s a mistake, since some judges appear not to understand the law.

Here’s how it works. If a party is in court, and testifies that the opposing party cheats on their taxes, they are safe from a defamation claim, even if the statement is false. The testimony would clearly be protected by the litigation privilege.

But if that same person goes onto the internet, and says, “hey world, opposing party cheats on their taxes, and I testified about it in court today,” that does not fall under the litigation privilege. To fall under the litigation privilege, the speech must ADVANCE the purposes of the litigation. Admittedly, that can be a broad standard. I’ve seen situations where an out of court statement to a non-party is still found to fall under the litigation privilege, because it is determined that the party could have been a potential witness, and it was therefore necessary to make the statements to that party. But blogging about a lie you told in court will not be protected, even though it was “about” the matter being litigated.

In our case, the defense counsel argued that everything the Defendant wrote on line was protected, because there had been an investigation by the California State Licensing Board, so he was really just discussing that case. That’s not how it works.

Mistake #3 – Failing to recognize that you won’t be able to overcome the Plaintiff’s declaration.

There is no weighing of evidence on an anti-SLAPP motion. The Plaintiff’s evidence must be taken as true, unless it is deficient for some other reason, such as being based on hearsay.

Before spending significant time and money on an anti-SLAPP motion, defense counsel must always first ask, “will Plaintiff be able to present evidence that, if taken as true, would make him the prevailing party?”

Simple example. I represented an oral surgeon. He sued for defamation when the Defendant posted a number of outrageous lies about him. She was obviously unhappy with the work, but she had to embellish. In her online review, she added the claim that my client had pushed a scalpel through her cheek. She knew this was untrue. Indeed, she had posted pictures following the procedure, thinking they showed that she was unnecessarily “puffy.” (An outrage to be sure.) They did not show any puncture wound.

So why did the attorney think he could successfully bring an anti-SLAPP motion under these facts? My client’s declaration truthfully stated that he had not punctured the patient’s cheek during the process. That had to be taken as true, even if Defendant filed a declaration stating that he “really, really, really did pierce my cheek.”

In the contractor case, the Defendant’s postings were basically all about what she perceived to be defective work, and how my client was in cahoots with the insurer. Why would the attorney think the motion would be granted? My client simply truthfully attested to how all the work was done properly, and that he was not in cahoots with the insurer. Motion denied.

The process I follow when I am considering an anti-SLAPP motion is to first determine if any of statements we are defending can be shown to be false with a simple declaration from the Plaintiff. (Which is not to say my client’s statement was false, only that Plaintiff can so claim.) If so, then I only proceed if there are other individual allegations I want to strike, that would not be vulnerable to a declaration, such as statements of opinion or other statements that would be absolutely privilege, despite what the Plaintiff might say.

 

The Top Three anti-SLAPP Cases Every Defense Attorney Cites, Whether they Apply or Not

anti-slapp slippery slope

Although the legal community appears to have come far in the past 30 years as regards awareness of the anti-SLAPP statute, it is still often the case that when I bring an anti-SLAPP motion, the plaintiff’s attorney is caught totally unawares. Even in those cases where I have warned opposing counsel of my intention to bring the motion, it is usually apparent that they thought it would not be an issue, based on some miscomprehension of what the statute covers.

This leaves them to scramble to try and find some basis to challenge the anti-SLAPP motion, and in doing so they inevitably cite to one or more of the following three cases. Sadly, they almost always cite these cases in ways that do not apply.

I will identify the top three cases cited by defense counsel, and explain why they almost never apply. Read the rest of this entry »

SLAPP031 – A Gambler Bets Wrong on the Anti-SLAPP Statute

California SLAPP Law

In Episode 31, in addition to an anti-SLAPP case, we examine another example of how opposing counsel blew an opposition to our Motion for Summary Judgment, by being unaware of the procedure rules.

The limit for the memorandum of points on a typical motion is 15 pages, but a motion for summary judgment is a big deal, so the rules graciously allow 20 pages for that type of motion. The same rule applies to the opposition. But this attorney offered up a 60 page memo. How did we use that error to seal his doom? Listen to Episode 31 to find out.

Next we turn to the case of Mike Postle, a professional gambler. Some accused Postle of cheating at a particular poker tournament. He took umbrage with that, and sued 12 of his accusers. We would have told poor Mr. Postle the tale of Joe the Alcoholic, which made clear that he could not prevail on his defamation claim. Listen for all the details, and the only possible silver lining in Postle’s debacle.

 

SLAPP030 – Is it Defamatory to Call Someone a “Crook?”

California SLAPP Law

Fun, fun, fun in the California sun at Morris & Stone.

In just the past couple of weeks, we (1) Obtained a 3.9 million dollar defamation verdict for one client; (2) Got another client out of a 7 million dollar case on a motion for summary judgment, and (3) Were awarded our fees following a successful anti-SLAPP motion, even though the motion did not dispose of every cause of action.

In Episode 30 of the California SLAPP Law Podcase, we discuss the facts of the aforementioned anti-SLAPP motion, and the motion for attorney fees that followed. This particular anti-SLAPP motion presented some really interesting issues, as did the motion for attorney fees.

As to the anti-SLAPP motion, we examine whether it can ever be defamatory to call someone a crook. It might seem so, but how exactly does one define a crook in order to offer evidence that one is not a crook?

As to the motion for attorney fees, how does the court handle such a request when the underlying anti-SLAPP motion was only partially successful?

Along the way, we are again reminded why it is so crucial to know the procedural rules governing any motion you bring.

SLAPP029 – Can Attorneys Sue Their Clients for Malicious Prosecution After a Fee Dispute?

In episode 28, we discussed the attorney who sued his own client for malicious prosecution. The client had challenged the fees charged by the attorney by way of the informal fee arbitration process, and when he lost the attorney turned around and sued for malicious prosecution.

Incredibly, the court denied our motion, so we had to take it up on appeal.

The Court of Appeal agreed with our position that a fee arbitration cannot be the predicate for a malicious prosecution case, and therefore the attorney could not possibly prevail on the second prong of the anti-SLAPP analysis.

In Episode 29, we discuss the court’s decision, as well as the motion for attorney fees that followed. The attorney provided a 65-page report from an expert witness who challenged our fees and hourly rate, but the judge was having none of it.

SLAPP028 – An Exception to the Absolute Police Report Privilege?

Some of our anti-SLAPP cases are breaking new legal ground through some very interesting fact patterns.

Penal Code section 11172

You are probably aware that certain professionals are required to report any child abuse situation of which they become aware. Penal Code section 11172 was created in order to afford those mandated reporters immunity against defamation claims potentially arising from their reports. But that same statute includes the following wording as regards persons who are not mandated reporters:

Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused.

But hold on Maude. Civil Code 47 and Code of Civil Procedure 425.16 both afford what has always been held to be an absolute privilege for reports to the police. Does Penal Code section 11172 carve out an exception? Listen to Episode 28 for the answer.

Can an attorney sue for malicious prosecution based on a fee arbitration?

Ahhh, the benefits of hindsight.

Episode 28 of the California SLAPP Law Podcast was recorded almost a year ago, but I never got around to editing and posting it. In addition to reporting on our recent victories at that time, it included the tale of an anti-SLAPP motion that had not gone in our favor, and was still up on appeal. I promised at the time to report on the results of the appeal. [Spoiler alert: We won on appeal and the anti-SLAPP motion was granted.]

As I was editing the podcast today, I was struck by the fact that it seemed to come from another era; like finding a journal entry where you referred to stopping at a pay phone or expressed how much you liked your Angel Flight pants. I discuss how I traveled to San Francisco to argue the case to the Court of Appeal. Can you imagine? Actual, face-to-face argument to the court? What an archaic notion.

In the next episode of the California SLAPP Law Podcast I will report on the opinion by the Court of Appeal, but if you can’t wait, you can read all about it on the California SLAPP Law website.

You’ve got to know when to fold them . . .

Finally, I tell the tale of a plaintiff who just did not know when to fold them . . . know when to walk away . . . know when to run.

We defeated her case with an anti-SLAPP motion. It was apparent each step of the way that her counsel just did not know the law in this area. Ever helpful, we explained each step of the way what we were going to do if he proceeded with his plans, and what it would cost his client. After spending probably tens of thousands of dollars in activities we advised against, Plaintiff had to finally pay the piper.

FilmOn.com v. DoubleVerify – Supreme Court Further Defines “Issue of Public Interest”

FilmOn.com v. DoubleVerify
Time to discuss the very important opinion by the California Supreme Court in the case of FilmOn.com v. DoubleVerify. To fully understand this opinion and the reasoning behind it, it is necessary to read the entire opinion, because it beautifully builds from the roots of the anti-SLAPP statute all the way to the ultimate conclusion. But in case you don’t have that kind of time, I’ll summarize it up front, and then offer a guided tour through the opinion.

The Facts and Legal Holdings of FilmOn.com v. DoubleVerify.

FilmOn.com Inc. (FilmOn) is a for-profit business entity that distributes web-based entertainment programming. In this case, FilmOn sued DoubleVerify Inc. (DoubleVerify), another for-profit business entity that offers online tracking, verification and “brand safety” services to Internet advertisers. In other words, DoubleVerify offers its conclusions about sites and content, so advertisers can be sure their ads do not end up in places they might consider to be inappropriate. FilmOn did not like what DoubleVerify had reported to its clients, and sued DoubleVerify for trade libel, tortious interference with contract, tortious interference with prospective economic advantage, and violation of California’s unfair competition law.

DoubleVerify responded by filing an anti-SLAPP motion to strike, which was granted by the Los Angeles County Superior Court, Judge Terry Green presiding. The Court of Appeal agreed with Judge Green’s conclusion that DoubleVerify’s reports “concerned issues of interest to the public” because “the public has a demonstrable interest in knowing what content is available on the Internet, especially with respect to adult content and the illegal distribution of copyrighted materials.” To support its conclusion, the court analogized DoubleVerify’s confidential reports to ratings by the Motion Picture Association of America, writing, “the Motion Picture Association of America (MPAA) engages in conduct quite similar to DoubleVerify’s activities by rating movies concerning their level of adult content, and the MPAA does so, because the public cares about the issue.”

It is always a hail Mary to appeal to the California Supreme Court, but surprisingly the Court elected to take up this matter, “to decide whether the commercial nature of a defendant’s speech is relevant in determining whether that speech merits protection under the catchall provision. To resolve this question, we also clarify how the context of a statement more broadly – including the identity of the speaker, the audience, and the purpose of the speech – informs the same analysis.”

In a unanimous decision, the Supremes reversed the Court of Appeal, and sent the case back to Judge Green for an order denying the anti-SLAPP motion. In essence, as I have repeated here a hundred times, the Court found that context is everything. It found that determining whether the ratings issued by DoubleVerify are a matter of public interest is not viewed in a vacuum. Rather, even if it is concluded that the speech is a matter of public interest, that speech must be in furtherance of the speech on the topic.

It is by carefully observing this wedding of content and context that we can discern if conduct is “in furtherance of” free speech “in connection with” a public issue or issue of public interest. (§ 425.16, subd. (e)(4).) What this union of content and context lets us discern in this case is that DoubleVerify’s report does not qualify for protection under the catchall provision of the anti-SLAPP statute.

Read the rest of this entry »

Using a Defamation Action to Gather Evidence of the Defamation is a Risky Proposition

anti-SLAPP Trap

Watch for the anti-SLAPP trap.

People love to gossip, and they love to tell you that you are being gossiped about. But gossip is not evidence. It is a risky proposition to rely on gossip for a defamation action.

I receive calls from prospective clients who are absolutely confident that someone is defaming them. But do they have a witness to testify to what is being said? Can they offer an email as evidence? Perhaps a posting on social media? Well, no, but all I need to do is to file a complaint for them, and then we can start taking depositions to get to the heart of it.

That is a very dangerous course to chart.

In some rare circumstances, that might be viable, but watch for the ever present specter of an anti-SLAPP motion. A call today demonstrated the risks once again. The call was from an attorney, who thought he had been snared by the anti-SLAPP trap, and was seeking my guidance on how he might extricate himself.

(Changing the facts sufficiently to protect privacy), the attorney represents an employee in a wrongful termination action. The client was of course upset about being terminated, claiming that it resulted from him reporting illegal conduct, but he was equally upset about the lies the employer had supposedly told to the EDD and others, about the supposed malfeasance that had led to his termination. The client assumes that the lies were not confined to the EDD, based on some comments by a third party after his termination. The attorney knew enough about anti-SLAPP law that he steered clear of suing for the statements made to the EDD, but the defamation cause of action basically mirrored what the employer had said to the EDD.

For example, let’s say that the employer informed the EDD that the employee was fired after being seen double dipping his chips in the onion dip at a company luncheon; an act we would all agree is proper grounds for termination. Later, he goes into a bar, and when he tries to take the stool next to some other patron, that person says, “get away from me you disgusting double-dipper!” So the employee knows that the employer must be spreading the lie beyond the EDD, since why else would the person have made that statement? Based on this set of circumstances, the attorney alleged that the employer is defaming the terminated employee to third parties.

But now the employer has filed an anti-SLAPP motion, claiming that the employer made that statement only to the EDD, so the employee must be suing for statements made to the EDD, which is protected speech under the anti-SLAPP statute. Now, faced with the anti-SLAPP motion, what evidence can the attorney offer to prove the statement was made to a third party? All he has is a random statement from some unidentified person at a bar. You just can’t bet your client’s money on the assumption that you will be able to uncover a witness to support your defamation claim, especially since an anti-SLAPP motion freezes discovery (subject to leave by the court).

There might still be hope.

The case presents an interesting issue. The employer will clearly prevail on the second prong of the anti-SLAPP analysis, since the employer will simply provide a declaration stating no one within the company made the statement to any third party other than the EDD, and the plaintiff will have no evidence to counter it. But I told the attorney there is hope.

The complaint does not say that Plaintiff is suing for the statements to the EDD. Defendant is attempting to rewrite the allegations to match its recitation of the facts. Plaintiff’s action will not carry the day absent any evidence of the statements to third parties, but he might survive the anti-SLAPP motion by explaining that the allegations as stated – not as defendant chooses to interpret them – do not bring the complaint under the anti-SLAPP statute.

A Huge Anti-SLAPP Victory by Morris & Stone in the Court of Appeal

Noe v J Niley Dorit

J. Niley Dorit v. Noe

At Morris & Stone, we sometimes take a case with an eye toward the greater legal implications. Prevailing for the client is of course our number one goal, but occasionally it is clear that the case could have legal implications beyond the dispute between the parties. This was such a case. It began as a, “well, that can’t be right” case, and morphed into a precedent that will control a small part of anti-SLAPP law until the universe reaches heat death.

Yet, it all started out so simply . . .

In January 2018, our client (we’ll call him Jack because that’s his name) hired an attorney named J. Niley Dorit to evaluate the medical records of Jack’s deceased mother for a potential medical malpractice suit against her doctors. The parties signed a fee agreement in which Jack agreed to pay Dorit a $10,000 non-refundable retainer fee. This sum was intended to cover Dorit’s time spent evaluating the claim, as well as “the costs of additional medical records and/or expert medical review if indicated.” The agreement contained an arbitration clause, which stated, “Should there arise any disagreement as to the amount of attorneys fees and/or costs, Client agrees to enter into binding arbitration of such issue or dispute before the Bar Association of San Francisco (BASF).”

On March 19, 2018, Dorit called Jack on the phone to present his analysis of the records. According to Dorit, Jack cut him off soon after Dorit began his presentation. Jack asked Dorit simply to provide his ultimate conclusion about the potential malpractice claim. Dorit said he did not think a malpractice claim was viable.

Jack was frustrated, feeling that Dorit had not provided $10,000 worth of services, especially given that he apparently had not consulted any medical experts. Conversely, Dorit felt that his experience with medical malpractice cases qualified him to review the file sufficiently to determine if a malpractice case was warranted. The medical file was huge, so Dorit felt he had earned his fee in examining the file.

The Mandatory Fee Arbitration Act

This is the sort of situation envisioned when the MFAA was was created. MFAA stands for Mandatory Fee Arbitration Act. Under California law, a client can challenge the fees charged by their attorney using this State Bar regulated process. It is designed to be very informal, and the arbitrator is not even required to follow the rules of evidence. It is a quick, low-cost way to have a fee dispute decided. Often the attorney fees involved in a fee dispute are relatively nominal, and it would never make economic sense to have to sue in court, let alone hire yet another attorney to do so. Rather than to force clients to stew in their own juices over the anger of having no recourse, the MFAA provides a quick review of the fees paid. And contrary to popular belief that the process is rigged in favor of attorneys, the MFAA arbitrators are very strict in determining if the attorney has observed all legal requirements.

Thus, a perfect process existed for Jack and Dorit to have the dispute decided, without going to court or even squaring off at ten paces. They submitted the fee dispute to MFAA arbitration. They presented their evidence to the Arbitrator, and ultimately he found in favor of Dorit, and allowed him to keep the $10,000 fee, awarding Jack nothing. Jack even had to cover the filing fee.

There are a couple of important things to know about the MFAA process. By law, a client always has the option to submit any fee dispute to arbitration. Sometimes it is the attorney who wants to sue to recover unpaid fees, but the attorney cannot take the matter to court without first giving the client the option to submit the dispute to arbitration. At that point, the arbitration is non-binding, unless the client then agrees to make it binding. If it is non-binding, then either party is free to reject the award of the Arbitrator and proceed to court.

Additionally, since the arbitration is so informal, and does not follow the rules of evidence, nothing from the arbitration can be used in any subsequent court proceeding. For example, had this matter proceeded to trial, Dorit would not have been permitted to bring up the fact that he had won the arbitration, or to bring up any of the arbitration testimony. It’s simply as though it never happened. This is because it would be entirely unfair to have a situation where clients are encouraged to go to an informal arbitration without the benefit of legal counsel, but then use the results of that hearing against the client in some other more formal forum, such as a trial.

OK; you now know everything you need to know about MFAA arbitrations. Back to our tale.

When we left our heroes, Dorit had won, and Jack was very unhappy with the result. But Jack has a code, and that code dictated that he had lost fair and square, and he would live with that result. Even though he would have been free to reject the conclusions of the Arbitrator, he did nothing and allowed the award to become final.

Dorit sues for Malicious Prosecution

But Dorit was not as accommodating. Dorit was upset that Jack had dared to question his entitlement to the $10,000 in fees, which he felt had been a malicious thing to do, so he sued Jack in San Francisco Superior Court for Malicious Prosecution. Read the rest of this entry »

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

Tustin Financial Plaza
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Tustin, CA 92780

(714) 954-0700

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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.