Archive for August 2016
SLAPP021 – Anti-SLAPP Motions Against Mixed Causes of Action
We discuss the very important case of Baral v. Schnitt, in which the California Supreme Court finally dealt with the split of authorities regarding how to deal with complaints with mixed causes of action; those that contain allegations of both protected and unprotected activities. This is probably the most important anti-SLAPP decision of the decade.
We also take a quick look at Hassell v. Bird, in which the Court of Appeal held that Yelp can be ordered to take down a false and defamatory post, even if it was not a party to the action.
Finally, I tell the tale of a very entertaining victory we had in Norwalk Superior Court, in front of a finger-wagging judge.
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Anti-SLAPP Motions in Federal Court – Some Judges Still Complaining
On August 3, 2016, the Ninth Circuit issued an opinion in the case Travelers Casualty Insurance Company of America v. Robert Hirsh.
The Court affirmed the district court’s denial of Robert Hirsh’s anti-SLAPP motion (Cal. Civ. Proc. Code § 425.16) to strike the second amended complaint filed by Travelers Casualty Insurance Company of America. Hirsh had alleged that Travelers’ claims arose out of his representation of Travelers’ insured, Visemer De Gelt, as Cumis counsel; and his activity was therefore protected under the anti-SLAPP statute.
The Ninth Circuit held that because Travelers’ causes of action were not based on an act in furtherance of Hirsh’s right of petition or free speech, they did not “arise from” protected activity, and thus did not satisfy the first prong of the anti-SLAPP analysis. The Court also held that Travelers established a probability of prevailing on the merits sufficient to survive a motion to strike. The Court further held that California’s litigation privilege, Cal. Civ. Code § 47(b), did not bar the suit because the causes of action arose from Hirsh’s post-settlement conduct, not his communications with De Gelt in settling a prior lawsuit.
Should we allow anti-SLAPP motions in Federal Court?
But like a number of appellate judges in the Ninth Circuit, Judge Kozinski and Judge Gould, although they concurred in the opinion, could not pass up the opportunity to complain about how anti-SLAPP motions in federal court were making them work too hard. Judge Kozinski decried that the existing case law is wrong, and he would urge the court to follow the D.C. Circuit’s holding in Abbas v. Foreign Policy Grp., LLC, which held that anti-SLAPP motions do not belong in federal court because they directly conflict with the Federal Rules of Civil Procedure. At the very least, Judge Kozinski urged the court to reconsider the holding in Batzel v. Smith, which allows defendants who lose anti-SLAPP motions to bring an immediate interlocutory appeal.
With all due respect, the reasoning of Judge Kozinski does not withstand scrutiny, as will be shown hereinbelow. What follows is Judge Kozinski’s concurring opinion, with my response to him in red on each of his points. Read the rest of this entry »
Posted in Anti-SLAPP motion, Case Results | Tags: Judge Kozinski, Travelers Casualty Insurance Company | No Comments »
Supreme Court Finally Applies Anti-SLAPP Statute to Mixed Causes of Action
On August 1, 2016 the California Supreme Court issued an opinion on anti-SLAPP law that will likely prove to be the most impactful decision of this decade.
The Supreme Court used the issues presented by the case of Baral v. Schnitt to finally clear up a split of authority that has existed since at least 2004, namely, what to do with mixed causes of action.
The history of the Courts’ struggles with mixed causes of action.
Porn Star versus Firefighter – The Vagaries of Anti-SLAPP Law
Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of an anti-SLAPP motion or are contemplating a defamation case that could invoke an anti-SLAPP motion, be sure you have a good anti-SLAPP attorney.
Today we discuss two seemingly identical cases, at least from the legal issues they presented, but which ended in completely opposite results.
The Vagaries of Anti-SLAPP Law
In our first example, The New York Daily News (that bastion of journalism) reported on a sex scandal at the fire department, and the article included two photographs. The first photo was a generic stock photo showing firefighters at the scene of a fire. But the second photo is the one that started the brouhaha. Inexplicably the newspaper chose to use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent (so they claimed) was simply to use Cheney as a representation of a firefighter. But here was an article about a sex scandal, with a picture of Cheney. How could any reasonable person take that as anything other than an implied reference that Cheney was one of the firefighters involved?
Cheney certainly thought his photo would be taken that way, so he sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.
So, the rule of law appears to be that if your photo is included in a sex scandal story, don’t bother suing, because the court will throw out your case if the other side brings an anti-SLAPP motion, because you won’t be able to prove a likelihood of success on your case. Good to know.
Now we turn to the case of Leah Manzari v. Associated News Ltd. Read the rest of this entry »