A Real-World Application of the Anti-SLAPP Motion Analysis

attorneys performing anti-SLAPP analysis at conference table

I was recently retained to consult on an anti-SLAPP motion in Orange County Superior Court, and the hearing on the motion was set for today. This particular judge is very good about issuing tentative rulings, but the rulings are often published on-line just shortly before the 1:30 hearing time. Knowing the tentative ruling is essential for oral argument since you know where the judge is going, and can address those specific points. (Truth be told, attorneys are seldom successful in getting a judge to reverse his or her tentative, but sometimes it can be done when the judge has a fundamental misunderstanding of the law that can be cleared up, or has misapplied the law to the facts.)

So my procedure is to open a window to the tentative rulings, which will be the rulings from the prior week, and periodically refresh the window until the current rulings appear. When our tentative ruling finally did pop up, it was just to inform us that the judge had decided to continue the hearing on our motion for a few weeks. This can happen when a judge’s docket doesn’t leave him or her enough time to work up and decide all the motions, or they just think more time is needed to decide a particularly challenging motion. I prefer to think that our legal analysis was so impressive that the judge just wanted more time to savor it, but who knows.

But while I was on the list of tentative rulings, I saw that the judge had decided an anti-SLAPP motion in another case. The ruling piqued my interest, so I pulled a copy of the cross-complaint to see what the case was all about. That will be the subject matter of this article.

I present the case summary and ruling here because they present a great example of how a judge analyzes an anti-SLAPP motion. I get numerous calls and emails from potential clients either wanting to prosecute an anti-SLAPP motion or needing to defend against one, where the facts they want to present are largely speculation. But to borrow an old cliché, an anti-SLAPP motion is where the rubber meets the road, and your allegations must be provable facts. The case also presents a very good example of just how expansive the litigation privilege can be. I will also take this opportunity to discuss the proof necessary for the particular causes of action that were pursued in this case.

So I present the case I will call Walker v. Filbin, so you can follow along with a real-life anti-SLAPP motion analysis. I see no reason to use the real names, so I’ve changed the last names of the parties to protect the innocent and all that.


The case began in early 2014, when James Walker and his wife sued the owners of a neighboring home, Filbin, Rippa and Letterman. Filbin and company had bought the home intending to fix it up and flip it. The Walkers claim that during the construction process, Filbin, Rippa and Letterman damaged their property by, for example, doing something that weakened a retaining wall that supported the Walkers’ property.

Bad NeighborsFrom the docket, it is clear that the case was fought vigorously by both sides, with lots of discovery disputes. Surprisingly, while most cases in Orange County are concluded within a year, this case was still going strong in April of 2015, when Filbin, Rippa and Letterman filed a cross-complaint back against the Walkers.

Filbin, Rippa and Letterman confirmed in their cross-complaint that they had bought the home next to the Walkers, with the intention of flipping it. They bought the property in June of 2013, fixed it up, and put it on the market about six months later.

They further confirmed with their cross-complaint that the Walkers were not happy with the construction work done by Filbin, Rippa and Letterman, claiming that it had damaged their home. They alleged that when they would hold an open house to try to sell the property, the Walkers would show up and tell potential buyers that Filbin, Rippa and Letterman had damaged their property, and that they would sue anyone who purchased the property. They also said that the work done by Filbin, Rippa and Letterman was shoddy, which was especially hurtful to Filbin because he was a professional engineer.

Filbin, Rippa and Letterman were convinced, and so alleged, that the Walkers did not believe anything they were saying, but rather just did not like Filbin, and wanted to interfere with the sale of the property. They were also convinced and alleged that they lost at least one buyer as a result of the Walkers’ conduct. (Remember when I used that “rubber meets the rode”cliché? This is what I was talking about. Alleging things like they acted as they did because they did not like Filbin sets up a scenario doomed to failure, because that is something that can’t likely be proven.)

Filbin, Rippa and Letterman (cross-complainants) alleged three causes of action in their cross-complaint: (1) Defamation; (2) Intentional Interference with Contract; (3) Intentional Interference with Prospective Economic Advantage; and (4) Intentional Infliction of Emotional Distress (“IIED”).

A quick aside while I pontificate. If you are suing for defamation, then IIED is usually a pointless claim. The claim for defamation already includes any damages for emotional distress, making the claim for IIED superfluous. Many attorneys will think, “I’d better allege IIED in case the defamation claim fails.” But let’s think about that.

If the defamation claim fails, then the conduct was not wrongful, and the IIED claim won’t fly. Let’s say someone calls you a “butthead” at a party, and that makes you feel really, really bad, so you sue for defamation (because you are absolutely convinced that you are not a butthead) and IIED. The defamation claim will fail, because whether or not you are a butthead is not a fact that can be proven true or false; it is both an opinion and nonfactual hyperbole. Therefore, the IIED claim fails as well, because if the statement was not defamatory, then the person had a right to their opinion, and you can’t recover for IIED even if your feelings were hurt.

The claim for Intentional Interference with Contract is also a bad idea. That claim requires that the defendant was aware of the specific contract, and intended to interfere with that contract. You might successfully argue that the Walkers were attempting to prevent the sale of the home, and therefore were aware that they were interfering with a sales contract, but the interference damages are covered by the claim for Interference with Prospective Economic Advantage, so there is no real benefit to the contract claim, which simply adds additional elements that must be proven. Now, back to our story.

The Walkers responded to the cross-complaint by Filbin, Rippa and Letterman with an anti-SLAPP motion. The motion was decided by Judge James J. Di Cesare, a really good judge in Orange County Superior Court.

A quick war story. In a conference during a trial I was prosecuting in front of Judge Di Cesare, opposing counsel expressed frustration to the Judge that he was not letting the attorney properly defend his client. The reality was that the attorney had come to court unprepared, and was not able to lay a proper foundation for some of his exhibits. The Judge was properly sustaining my objections to the evidence, but opposing counsel viewed that as being obstructive.

Judge Di Cesare basically responded that the attorney had pulled the golden ticket when Di Cesare was chosen to hear the case. And he was absolutely correct. Judge De Cesare, more than any other judge I have experienced, gives attorneys the most freedom to present their cases. And lest you think I am buttering him up for my next appearance, at the time I am writing this, he has since retired from the bench, which was a real loss to the Orange County Superior Court. [Go to this brilliant opinion by the Court of Appeal, wherein a judgment we obtained in Judge Di Cesare’s court was upheld, and affirmed our novel interpretation of a criminal code section.]

The following is his thoughtful analysis of this anti-SLAPP motion by the Walkers. I can talk about the anti-SLAPP analysis ad nauseam, but to see the way a judge analyzes a motion is very instructive. The language is taken from Judge Di Cesare’s ruling, and I’ll chime in (in RED) where appropriate.


This a special Motion to Strike filed by Plaintiff/Cross-Defendant James Walker, to strike the Cross-Complaint filed by Defendants/Cross-Complainants, abdullah Filbin, Mohsen Rippa, and Rahel Letterman pursuant to the anti-SLAPP statute.

The Court grants the motion to strike in its entirety and orders the Cross-Complaint stricken.

OK, I didn’t wait very long before chiming in. A cross-complaint is no different than a complaint, for anti-SLAPP purposes. But more importantly, when your attorney is about to file a cross-complaint, always seek counsel on whether that is a good idea. Cross-Complaints are fertile grounds for SLAPPs, because they often amount to suing someone for suing, and that is the quintessential SLAPP.

Now the judge discusses basic SLAPP law. Note that there is a distinction between the various provisions of CCP § 425.16. It is not enough that the statements made by the defendant (here the cross-defendant) were a form of free speech. Certain sections require that the comments must be made “in connection with a public issue or an issue of public interest.” CCP §425.16(e). This latter point is often lost. It is true that the courts have interpreted “issue of public interest” very broadly, but the requirement remains. In this case the court decides the motion on other grounds, but for example if this case had involved Internet postings about the dispute between these neighbors, the speech would not fall under the anti-SLAPP provisions because a dispute between neighbors is not an issue of public interest.

Pursuant to CCP §425.16 (b)(1), “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

As relevant here, an “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… or (4) 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.” CCP §425.16(e).

A cause of action arises from protected activity when the acts underpinning the plaintiff or cross-complainant’s cause of action involve an exercise of the defendant’s constitutional right of petition or free speech. Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 702. In determining this, courts disregard the label of the claim and examine its principal thrust or gravamen, or the alleged wrongful and injury-producing conduct that provides the foundation for the claim. Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272; Martinez v. Metabolife Int’l, Inc. (2003) 113 Cal.App.4th 181, 188.

Remember when I told you that an IIED claim usually won’t survive if the defamation claim fails? That’s what the judge is talking about here. If the defendant’s speech was constitutionally protected, you can’t avoid an anti-SLAPP motion (or state a cognizable claim) just by slapping another name on it (see what I did there?).

The party moving to strike a claim has the initial burden to show that the claim arises from an act in furtherance of his right of petition or free speech. Once that burden is met, the burden shifts to the opposing party to demonstrate the probability that it will prevail on the claim. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Navelier v. Sletten (2002) 29 Cal. 4th 82, 88.

In ruling on the motion, the Court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. CCP §425.16(b)(2).

Notice that the judge says that he will rely on the “supporting affidavits”? Some courts have interpreted this code section to actually require a supporting declaration, even when the argument is entirely legal in nature. To be safe, always include a declaration, even if it seems unnecessary. I discuss this point on the 14th episode of the California SLAPP Law Podcast.

Does Cross-Defendant Walker Show the Conduct Arises out of Protected Activity? Yes.

In the Cross-Complaint, cross-complainants contend that James Walker orally stated at open houses or showings, that (1) the repairs and improvements of the property had substantially damaged Walker’s own property, (2) that Walker intended to sue anyone who bought the property from Defendants, and (3) Walker allegedly told one couple who had offered to buy the property that the work done on the property was shoddy and not up to professional standards. (Cross-Compl. ¶¶13-16). In the Cross-Complaint, Defendants allege Walker made these statements sometime in early 2014 or late 2013 while the opposing evidence seems to pin it down to about January 22, 2014. (Opp. Dec. ¶ 4). This was actually a week before the Walker plaintiffs filed the present lawsuit on January 29, 2014.

These oral statements are the basis of all four causes of action in the cross-complaint against Walker. (See Cross Compl. ¶¶ 21, 29, 35, 39).

Judge Di Cesare is simply noting that all of the causes of action arise from the statements made at the open houses. That may have been the case here, but it illustrates another mistake often made by attorneys that gets them into trouble with the anti-SLAPP statute. Seemingly most attorneys, without any consideration of what they are alleging, incorporate all of the allegations into all of their causes of action. In other words, the first cause of action for defamation will allege, “Defendant called plaintiff a butthead.” Then the second cause of action for IIED will state, “Plaintiff realleges all the allegations of the first cause of action, as though set forth herein.” If the “butthead” comment is the only basis for all the causes of action, then it is what it is. But often there are different facts for different claims, and the plaintiff nonetheless uses these global reallegations. In that case, if the court finds that a particular statement was protected, you have then brought that protected comment into all of the claims, making them all subject to an anti-SLAPP motion.

Next, Judge Di Cesare begins setting out the basis of the cross-complainants’ demise in this case – the litigation privilege.

Statements, writings and pleadings in connection with civil litigation are protected under subdivision (e)(1) and (e)(2) of the anti-SLAPP statute. Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35. Courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of those sections. Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268. Statements preparatory to or in anticipation of bringing the action are within the protection of the statute as much as statements made during the judicial proceeding. Rohde at 35; Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, 1413. “[A]lthough litigation may not have commenced, if a statement “concern[s] the subject of the dispute” and is made “in anticipation of litigation ‘contemplated in good faith and under serious consideration, then the statement may be petitioning activity. Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268. “Good faith” refers to a good faith intention to file the lawsuit, not a good faith belief in the truth of the statement. Trapp v. Naiman (2013) 218 Cal.App.4th 113, 121.

Here, it appears the alleged statements of Walker are protected by the statute. Defendants apparently bought the property to flip it. (Cross-Compl. ¶12). After construction began, it appears that plaintiff Walker sent Defendants a letter in July 2013, stating, “[My wife and I] are both licensed professional engineers and we believe that what you are doing is seriously endangering our property which relies on your property for support for our retaining wall, slope above our retaining wall, swimming pool and associated decking…. If you do not immediately cease and desist we will have no choice but to file a lawsuit… [I]f your irresponsible activities end up causing any damage to our property (wall slope, pool, decking) we intend to hold you responsible … [W]e would expect that you share this letter with whomever you intend to soon sell your property to and that you inform them that they will be expected to assume this legal exposure should such damages manifest…” (Mot., Ex. C).

Defendants apparently continued with the work, completed it, and their property was ready to show by January 14, 2014. (Cross-Compl. ¶¶ 13-14 and Opp. Decl. ¶ 3). By this time, however, the Walker plaintiffs were apparently seriously contemplating litigation, because they proceeded to file this suit on January 29th, two weeks later, and alleged that the construction work had damaged their property – affecting sloping of the land, cracking of the pool walls, leaking of the pool and cracking of the deck – and claiming it was caused by the lack of diligence, care, design, supervision, investigation and construction by the Defendants. (Compl. ¶¶ 13-20).

Shortly after this, in May of 2014, the Walker plaintiffs amended their complaint to add the buyers of Defendants’ property, as additional defendants in the suit.

Under these circumstances, it appears reasonable to conclude that the alleged statements of Walker were reasonably connected to the litigation that followed imminently, and they would qualify as protected speech. See Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1269 (“The only reasonable inference from the evidence described above, however, is that Maxsecurity and Chudacoff were contemplating litigation against Neville seriously and in good faith when the Letter was written”). As the Neville court said, there is no requirement in the text of the anti-SLAPP statute that the statements be made only to parties to the lawsuit. Statements made to potential parties, or interested persons, like customers or recipients of a disputed property, may reasonably come under the umbrella of being connected to the litigation. Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1270 (citing cases); Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5-6 (“Because one purpose of the letter was to inform members of the association of pending litigation …, the letter is unquestionably “in connection with” judicial proceedings (§ 425.16, subd. (e)(2)) and bears “ ‘some relation’ ” to judicial proceedings”).

From the evidence here, it appears that Walker contemplated litigating his claims not only against the Defendants, but against any subsequent purchaser of their property. This seems evident from the amendment of the complaint to include the subsequent purchasers as alleged responsible parties. It was also expressly stated in his July 2013 letter, which predated the remarks he allegedly orally made in January 2014. (See Mot., Ex. C). Thus, it appears that the alleged statements by Walker at the showing, about suing the buyer, and about defective construction and alleged damaged it caused, all have a reasonable connection to this litigation. Cf. Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1489, 1481 (“Whether taken individually or as a whole, [landlords] Hawkins’s statements were clearly … made in anticipation of the eviction action they threatened.”); Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 879, 888 (a prelitigation letter sent to third parties who received the disputed property, stating they could be liable as well for intentional interference was protected).

It appears that plaintiff Walker could reasonably believe that a person buying the neighboring property, would have “some interest in the dispute as potential witnesses to, or unwitting participants. . . ”. Neville, at 1267-68. From this perspective, the statements may also be reasonably viewed as informing persons likely be interested about his anticipated litigation, and they appear to be have some connection to the lawsuit which would soon be underway.

It appears that the alleged statements are therefore protected under the first prong of the anti-SLAPP statute.

“But wait a minute, Morris, you said that this dispute would not fall under the anti-SLAPP statute because it is not an issue of public interest.” Yes, but I also said that the judge decided this case on another basis. The “issue of public interest” element does not apply to the litigation privilege.

The arguments by Defendants against the application of the first prong, were not persuasive. It is argued that “defamation.., by definition, is not an exercise of free speech.” (Opp. at 4:10) But “an action for defamation falls within the anti-SLAPP statute if the allegedly defamatory statement was made in connection with litigation.” Healy, 137 Cal.App.4th 1, 5; Neville, 160 Cal.App.4th 1255, 1265.

Similarly, it is argued that interfering with economic relationships is not protected. (Opp. at 4:13) But when the basis of the claimed interference is a protected oral statement, the tort is within the scope of the anti-SLAPP statute. See GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908.

Do Cross-Complainants/Defendants Show A Probability of Prevailing? NO.

The burden would shift to Defendants (Cross-Complainants) to show a probability of prevailing. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Navelier v. Sletten (2002) 29 Cal. 4th 82, 88. To meet this burden, a plaintiff must demonstrate the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment. The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken pursuant to section 425.16. The plaintiff must meet this burden with “competent and admissible evidence. Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512-13; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289.

Next Judge Di Cesare discusses how evidence is considered in an anti-SLAPP motion. This is hugely important in anti-SLAPP motions. Once a defendant convinces the court that the speech or conduct falls under the anti-SLAPP statute (i.e., satisfies the first prong of the analysis), the burden shifts to the plaintiff to show he is more likely than not to prevail. But the plaintiff’s evidence gets the benefit of a doubt. This is the other key point on which most callers are confused.

Let’s say you had a bad experience with a doctor, and went on Vitals.com to complain about him. He responds with a defamation action, saying your statements are defamatory because he never treated you. His declaration in opposition to your anti-SLAPP motion, stating that he never treated you, is sufficient to defeat the motion, even though you file a declaration stating that he did treat you. His declaration trumps yours, because the court is not permitted to weigh the evidence. However, if you produced a credit card receipt showing that he charged you on the day you are claiming he treated you, the court may conclude that is sufficient to defeat his declaration. Here is the actual legal standard:

The Court neither weighs credibility nor compares the weight of evidence. It accepts as true the evidence favorable to Plaintiff and evaluates Defendant’s evidence only to determine if it has defeated that submitted by Plaintiff. If the plaintiff “can show a probability of prevailing on any part of its claim, the cause of action is not meritless”. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.

In making this analysis, the Court must determine whether the defendant could defeat the claim by way of an affirmative defense, an important one being the litigation privilege, Civ Code §47. Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1513; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1290.

Defendants and Cross-Complainants, Filbin, Rippa and Letterman, have not met their burden of substantiating the four cross-claims in their case.

a. 4th Cross-Claim for Intentional Infliction of Emotional Distress

The fourth claim is for intentional infliction of emotional distress. The minimal allegations in the Cross-Complaint at ¶¶ 15-16 and 39-43 are not sufficient to state a claim.

Remember when I said that there is no reason to add a claim for IIED, because emotional distress damages are already covered by a defamation claim? The following standards illustrate the other reason why it is a bad idea. Look at the elements necessary to satisfy a claim for IIED.

To properly plead “extreme and outrageous conduct,” the alleged conduct must be: (1) pled with reasonable particularity and (2) be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1516. This is a question of law that must initially be determined by the court.

The tort does not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Hughes, at 1051. As one Court observed, “the rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496-498 [voicemail message of implied death threat not sufficiently outrageous in part because personal relations gone bad “are often accompanied by an exchange of hostile unpleasantries which are intended to sting whoever sits at the delivery end”].

As a matter of law, the oral statements described in Defendants’ cross-complaint would not likely rise to the level of outrageousness that is necessary to pursue the tort. Even if they were, Defendants’ burden on this motion was to present some facts and evidence to support the claim. This would include the important element of damages. But the Court has not received any evidence from the Defendants showing they suffered emotional distress from the alleged statements of Walker, let alone that they sustained the level of severe or extreme emotional distress that is required for pursuit of this tort. Cf. Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 (“[p]laintiff’s assertions that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation as the result of defendant’s comments to her on the telephone and at the museum … do not comprise “ ‘ “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.”)

As a result, Defendants have not stated a legally sufficient claim for intentional infliction for emotional distress in the Cross-Complaint, nor substantiate it on this motion. Accordingly, the Court must strike the 4th cross-claim.

b. 1st Cross-Claim for Defamation

c. 2nd Cross-Claim for Intentional Interference with Contract

d. 3rd Cross-Claim for Intentional interference with Prospective Economic Advantage

Walker argues that the litigation privilege shields the statements that he is accused of making, and would bar the claims against him. Defendants have not responded to this critical point. It appears that Plaintiff Walker is correct.

The litigation privilege is to some extent co-extensive with the protections of the anti-SLAPP statute. It protects a “publication or broadcast” made as part of a “judicial proceeding”. Civ. Code §47(b). It applies to “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]” Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37. Like the anti-SLAPP statute, the privilege is construed broadly, and can extend to prelitigation activity. Rohde at 37; Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 121; Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 889; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057. It is the same test, whether the prelitigation communication relates to the litigation that is contemplated in good faith and under serious consideration. Trapp v. Naiman (2013) 218 Cal.App.4th 113, 122.

Note this next statement by the judge. If a statement is absolutely privileged, that is the end of the analysis on a defamation claim. It doesn’t matter that the defendant knew the statement was false, or that it was made with malice.

The privilege is absolute, applying “to all publications, irrespective of their maliciousness.” Action Apartment Ass’n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241. It immunizes defendants in any tort action, except for malicious prosecution. Olsen v. Harbison (2010) 191 Cal.App.4th 325, 336-37. “Any doubt about whether the privilege applies is resolved in favor of applying it.” Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.

Here, for the same reason discussed above in relation to the first prong of the anti-SLAPP statute, the evidence before the Court seems to compel the conclusion that the alleged statements of Walker were related to the litigation, were made at a time when this litigation was seriously contemplated by the Plaintiffs, and were protected by the litigation privilege.

This next statement by Judge Di Cesare illustrates the need for a causal link between the speech and the damages; a point that is lost on many. Make certain that the speech of which you are complaining can be tied directly to the damage, and, if it is, that the specific speech was not protected speech.

In addition, for the claims for interference with contract and interference with prospective economic advantage, Defendants have not met their burden of coming forward with competent evidence to substantiate these claims. Their sole evidence was a declaration of their real estate agent, Amberleigh Dancy. She avers that on February 15, 2014, she received an offer from a realtor, Sally, acting on behalf of unspecified buyers. After receiving it, Dancy learned that the Walker plaintiffs had filed suit and she conveyed this to her counterpart. Shortly thereafter, she was told that the unidentified buyers canceled escrow due to concerns over the lawsuit. (Dancy Decl.).

If credited, this evidence demonstrates that the existence of a lawsuit caused the transaction to fail, not James Walker’s alleged oral statements at a showing. If this is the evidence, the Defendants’ probability or prevailing is in doubt because the act of filing a lawsuit is unquestionably protected by the constitution. See Navellier v. Sletten (2002) 29 Cal.4th 82, 90 (“A claim for relief filed in … court indisputably is a “statement or writing made before a … judicial proceeding” under 425.16(e)(1) and “[t]he constitutional right of petition encompasses “ ‘ “the basic act of filing litigation.”).

See? The cross-complainants thought they had a basis for damages, because they had a real estate agent to testify that a sale was lost because of the Walkers. But that’s not enough because the causal link was missing. There was no evidence that the statements by the Walkers at the open house were the cause of the lost sale. Rather, it was the buyer’s knowledge of a potential lawsuit that killed the sale, and that is protected under the litigation privilege. Do you see the precise analysis that is made of the allegations, to see if they will support a claim? You can’t pursue an action with general allegations.

Also crucial to a claim for interference with prospective economic advantage is a showing that the conduct was “independently wrongful”. Every that McDonald’s advertises that it has the best hamburgers, it is “interfering” with the sale of hamburgers by Burger King, but that interference is not actionable because it is not independently wrongful. It is not enough for Filbin, Rippa and Letterman to show that the conduct of the Walkers prevented them from selling their home, if that conduct was not wrongful. Ipso facto, as no attorneys actually say, if the allegedly defamatory speech is deemed to be protected speech, then it is not wrongful, and cannot support a claim for interference with prospective economic advantage.

Also, the evidence put forth by Defendants cannot form the basis of interfering with a prospective economic advantage because it is not conduct that was “independently wrongful”, which is a required element of that particular tort. Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392-393 (“[A] plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself.”); Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159 (an act is independently wrongful if it is unlawful, i.e. proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.”). The mere existence or initiation of a lawsuit is not wrongful conduct.

The conduct described in the Dancy declaration is also privileged. Silberg v. Anderson (1990) 50 Cal.3d 205, 213 (“The principal purpose of [Civil Code] section 47[, subdivision (b),] is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.”);

Importantly, Dancy does not aver that the unidentified buyers heard the alleged statements by Walker about shoddy construction or the property causing damage to the Walker property. Those are the allegations upon which the Cross-Complaint is based. (See Cross Compl. ¶¶ 15-16). The theory of the Cross-Complaint, is that the oral statements of Walker caused damage (id. ¶18). But there is no evidence put forth by Defendants at this time that the unidentified buyers even heard the statements, to prove that the sale with these buyers was lost because of what Walker said at the open houses. (Cross-Compl. ¶ 15)

In other words, Defendants have not met their burden to substantiate their claims in the Cross-Complaint. As a result, the Court must grant the special motion to strike.

And then comes the dreaded language following a successful anti-SLAPP motion:

Walker may file an independent noticed motion for attorney fees if sought. CCP § 425.16(c); American Humane Ass’n v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103-4.

When the anti-SLAPP statute was enacted, there were many procedural matters that needed to be decided. One involved the issue of attorney fees. In the American Humane Association case cited by Judge Di Cesare, the plaintiff claimed that the defendant could not recover their attorney fees, because they had not requested them via the anti-SLAPP motion. But so requiring would be very inefficient. Every anti-SLAPP motion would have to include a motion for attorney fees, even though the defendant would not yet know if they were going to prevail on the motion. It is now clear that the attorney fees can be sought with the motion, or it can be sought in a separate motion after the ruling.

So there you have it. A very detailed analysis of an anti-SLAPP motion by a scholarly judge, so you get a sense of the process.

An anti-SLAPP motion can turn on a single allegation. The motion might have been denied in this case but for the allegation that the Walkers threatened legal action when they attended the open houses. That allegation tied the conduct to the contemplated litigation, because the judge took that as an effort to inform prospective buyers that they would be named in the action if they purchased the house (which turned out to be the case).

Whenever you are filing an action, are faced with an anti-SLAPP motion, or are contemplating bringing one, even if you already have counsel representing you, a call to Morris & Stone is a good way to make sure you and your counsel are viewing the issues properly, so that you don’t end up in the unfortunate position of Filbin, Rippa and Letterman.

You’ve probably heard the expression, “to a hammer, everything looks like a nail.” Because defamation and SLAPP law are our primary practice areas, we view all cases through that magnifying glass. An attorney who does not have a primary emphasis in these areas of the law will not have the same viewpoint, anymore than we would spot all the potential issues in a criminal case, since we don’t practice criminal law.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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Lake Forest, CA 92630

(714) 954-0700

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