‘American Hustle’ Producers Can’t Nuke Defamation Lawsuit – Hollywood Reporter

Paul Brodeur, a science writer who claims he was defamed by something Jennifer Lawrence said in David O. Russell’s 2013 film American Hustle, has survived an attempt to knock out his $1 million lawsuit on First Amendment grounds.

Source: www.hollywoodreporter.com

This is such an entertaining and ridiculous lawsuit.

In the movie American Hustle, Jennifer Lawrence plays a character named Rosalyn. The movie is set in the 70s, when microwave ovens were still relatively new, and Rosalyn makes the statement that microwaves cook the nutrition out of food. When another character questions that claim, she holds up a magazine and responds, “I read it in an article by Paul Brodeur.”

Paul Brodeur is a real person, and claims that the fictional statement from a fictional character hurts his reputation. During the 70s, Brodeur wrote about the dangers of microwave ovens, but he never stated that they take the nutrition out of food, and he therefore claims that the idea that he would have written this (fictional) article stating that food loses its nutrition when cooked in a microwave is akin to having Carl Sagan say that the sun revolves around the earth.

Brodeur should have been flattered that anyone remembered him, and laughed at the joke, but this is America, so he sued for a million dollars, claiming the statement was defamatory. The movie makers responded with an anti-SLAPP motion.

At the time, I gave the motion little chance of success, because I didn’t think the movie makers would be able to meet the first prong of the anti-SLAPP analysis, and show that this was a matter of public interest. Apparently the judge agreed, and denied the motion.

[UPDATE (June 6, 2016):] Cases such as this continue to show the importance of the automatic right of appeal, even from denial of an anti-SLAPP motion.

Paul Brodeur’s ridiculous lawsuit survived an anti-SLAPP motion, dooming the defendant (Atlas Entertainment, Inc.) to litigate issues through trial, were it not for the automatic right of appeal. That ability to demand a second look at the applicability of the anti-SLAPP statute resulted in the dismissal of this waste of court resources.

As it had to, the Court of Appeal held: Read the rest of this entry »

When Considering an Anti-SLAPP Motion, Focus on the Gravamen of the Complaint

Fans on stadium game panorama view

I am the anti-SLAPP guy, and I’d be the last to criticize creative applications of the anti-SLAPP statute. But sometimes it is as though the attorney bringing an anti-SLAPP motion only read the Cliff Notes on the process. He knows some of the buzz words, such as “public interest” and “protected speech”, but lacks the big picture. When considering an anti-SLAPP motion, you must consider the true gravamen of the complaint.

Case in point is the recent Court of Appeal opinion in Rand Resources, LLC v. City of Carson (Los Angeles Superior Court Case No. B264493), arising from the efforts to build a football stadium in the City of Carson. The ruling of the Court of Appeal, published on May 31, 2016, can be found here.

Carson wanted to build a stadium and entertainment complex, and was hoping to woo the NFL to relocate a team there. Carson hired a lobbyist, of sorts, Richard Rand, giving him an exclusive arrangement to negotiate with the NFL.

Things between Rand and the city got off to a rocky start, leading Rand to successfully sue Carson for civil rights violations, alleging that the Mayor had demanded a bribe. The city and Rand both appealed, with the city claiming it had never happened, and Rand claiming he should get more in damages.

The parties eventually settled, but Carson did not honor Rand’s exclusivity arrangement. Rand sued again, this time for breach of contract and other claims.

“Well,” thought the city’s attorneys, “this whole football stadium thing is generating a ton of public interest, and anti-SLAPP motions can be brought where the situation is a matter of public interest, so let’s bring an anti-SLAPP motion.”

And that’s just what they did. The city challenged Rand’s action with an anti-SLAPP motion.

“Well,” thought the judge, “this whole football stadium thing is generating a ton of public interest, and anti-SLAPP motions can be brought where the situation is a matter of public interest, so I guess I should grant the anti-SLAPP motion.”

And that’s just what he did. Apparently having read the same Cliff Notes, the judge granted the anti-SLAPP motion. Rand appealed. Read the rest of this entry »

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

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In Episode 20 of the California SLAPP Law Podcast, we discuss important Evidence Codes, and my VINDICATION by the California Court of Appeal.

The vindication comes in the form of a published opinion from the Sixth District Court of Appeal. I was brought in as co-counsel to first chair an internet defamation trial in Santa Cruz, representing a client (an attorney) we will refer to as “Esquire”. We were also defending a cross-complaint for breach of a commercial lease. The trial was assigned to Judge Ariadne Symons, who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers.

At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint for defamation and breach of the covenant of quiet enjoyment. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence.

I was confident that the matter would be reversed on appeal, and I was looking forward to the Court of Appeal’s opinion, not just for the benefit of the client and my own vindication, but because until the Court of Appeal instructed Judge Symons on fundamental evidentiary law, a lot of parties in her court were going to be deprived of justice. Read the rest of this entry »

Can band members sue for wrongful termination?

Eddie Money is looking for two tickets to paradise in the form of an anti-SLAPP motion to get him out of what certainly appears to be a ridiculous suit.

His drummer, Glenn Symmonds, sued Eddie Money for wrongful termination when Money decided to use his son’s band for appearances. Symmonds claimed this “termination” was based on his age and because he has cancer. When those claims didn’t seem to be gaining much traction, Symmonds added his girlfriend to the mix, claiming that he suffered emotional distress from witnessing Money sexually harassing her, citing an incident where he held the mic between his legs like a penis.

Money has responded to the complaint with an anti-SLAPP motion, asserting that the manner in which he presents his music, and hence the make-up of his band, is a protected form of expression.

“The fact that Eddie did not invite Plaintiff to rejoin the band had nothing whatsoever to do with his age,” states the brief. “Nor did it have anything to do with any illness or disability that he suffered. It was based entirely on how inappropriately Plaintiff reacted upon hearing that Eddie wanted to tour with his adult children during the summer.”

I can’t opine on the likely outcome of the motion, because I don’t have knowledge of the evidence that both sides can bring to bear. But I would predict that the motion will satisfy the first prong of the anti-SLAPP analysis, since Money’s performance is a form of expression.

And I can opine that Symmonds needs to get a life. Apparently not only was Money not bothered by Symmonds’ cancer, he held fundraising concerts for him. No good deed goes unpunished.

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

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On Episode 19 of the California SLAPP Law Podcast, we go through my five favorite reported anti-SLAPP decisions from the first half of 2016.

But first we begin with a cautionary tale of an attorney who is being sued for malpractice for failing to have me review his complaint before it was filed! (OK, there’s a back story here, so be sure to listen to this episode to find out what I’m talking about.)

Then, we turn to the five best published anti-SLAPP decisions from the first half of 2016. The bold cases are the top five; the non-bolded are other cases I discuss as well.

Lanz v. Goldstone (2015) 243 Cal.App.4th 441

Another cautionary tale, this time of an attorney who followed the old adage, “the best defense is a good offense.” He tried to intimidate an attorney from seeking his legal fees, and bought himself a malicious prosecution action in the process. You’ll learn a lot about malicious prosecution actions and under what circumstances they can survive an anti-SLAPP motion.

Bertero v. National General Corp. (1974) 13 Cal.3d 43

Speaking of malicious prosecution actions, this is the seminal case.

Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135

“When the proceeding terminates other than on the merits, the court must examine the REASONS for termination to see if the disposition reflects the opinion of the court OR THE PROSECUTING PARTY that the action would not succeed.”

Karnazes v. Ares (2016) 244 Cal.App.4th 344

Speaking of over-pleading, our second case is Karnazes v. Ares, decided by the Second District in January of 2016. In this case, the plaintiff alleged 22 – count em – 22 causes of action against the defendants. Karnazes lost to an anti-SLAPP motion, but made some interesting arguments in opposition to that motion.

Sweetwater Union School District v. Gilbane Building Company (2016) 245 Cal.App.4th 19

Are political bribes protected by the anti-SLAPP statute? Listen to find out (and the answer will likely surprise you). And find out how you can support an anti-SLAPP motion with declarations without using declarations.

Crossroads Investors v. Federal National Mortgage Association (2016) 246 Cal.App.4th 529

It may look like litigation, and it may quack like litigation, but that doesn’t necessarily make it litigation for purposes of the litigation privilege and the first prong of the anti-SLAPP analysis.

JM Manufacturing v. Phillips & Cohen (2016) 247 Cal.App.4th 87

Yet one more action against an attorney; in this case an attorney who was so proud of his firm’s trial victory that he published a press release and bought the firm a defamation action. It was a split decision.

And finally, in the after show, I provide an appeal tip that might save you from some embarrassment.

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

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In episode 18 of the California SLAPP Law Podcast, I discuss an anti-SLAPP motion I decided NOT to pursue, and why. We discuss the case of Weinberg v. Feisel (2003) 110 Cal.App.4th 1122.

Then we dive deep into the pros, cons, and frustrations of bringing anti-SLAPP motions in Federal Court. Since 1999, the Ninth Circuit has recognized that the California anti-SLAPP statute can be applied to cases in Federal Court, but the motion you bring there is a very different animal from what is pursued in State Court. As part of our discussion on anti-SLAPP motions in Federal Court, we cover the following cases:

Erie Railroad Company v. Tompkins (1938) 304 U.S. 64

Swift v. Tyson (1842) 41 U.S. 1

United States Newsham v. Lockheed Missiles and Space Co. (1999) 171 F.3d 1208

Makaeff v. Trump University (2013) 715 F.3d 254

Verizon Delaware, Inc. v. Covad Communications (2004) 377 F.3d 1081

Globetrotter Software, Inc. v. Elan Computer Group (2004) 362 F.3d 1367

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

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

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

SLAPP016 – Appealing a Ruling on an Anti-SLAPP Motion

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

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

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

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

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 through Scoop.it 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.)

See on Scoop.itCalifornia SLAPP Law

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

California SLAPP Law Podcast

In Episode 15 of the California SLAPP Law Podcast, we discuss (1) the perils of overreaching in your anti-SLAPP motions (making iffy challenges to causes of action can come back to bite you, even if you win), and (2) why you should NEVER assume it’s too late to bring an anti-SLAPP motion , and some strategies to keep in mind when you do bring an anti-SLAPP motion late in the game.

We also discuss the case of Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, which held [spoiler alert] that no leave is required to file a late anti-SLAPP motion.

We examine two cases that discuss whether it is an abuse of discretion to refuse to consider a late anti-SLAPP motion. Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 held that it is never an abuse of discretion for a trial court to refuse to consider a late-filed anti-SLAPP motion, regardless of the merits, and Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, which held that it can be an abuse of discretion to allow an anti-SLAPP motion to be brought too late in the action.

(But the title says it’s never too late to file an anti-SLAPP motion. How can you reconcile that with the holding of Platypus? Listen to Episode 15 to find out!)

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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