California SLAPP Law

Ready for the most self-aggrandizing article you’ve ever read? What will surprise you even more is that it arises from a motion and appeal that I lost.

Here’s the self-aggrandizing part up front. I think my understanding of SLAPP law now surpasses the ability of judges and justices to understand. Or at least my ability to make them understand. Like Sheldon Cooper trying to explain string theory to Penny. At least that’s my argument and I’m going to stick to it. As the following story indicates (at least to me, being a legend in my own mind), I just see things others cannot.

Here’s the greatly altered fact pattern (to protect the innocent).

My client accused someone of being a bank robber on social media, and notified the police that said that person had robbed a bank. That party took umbrage with being called a bank robber, and sued for defamation. Part of the defamation he alleged was the report to the police.

Now some quick background to set the scene.

Many years ago I was retained to handle an appeal from a defamation case. The defendant had been hit with a one million dollar judgment arising from three alleged wrongs. He had (1) said bad thing about the plaintiff at an HOA meeting, (2) he had said bad things about the plaintiff to the police, and (3) he had allegedly crank called the plaintiff on a number of occasions.

As you probably immediately recognized, items 1 and 2 are clearly protected activities. Speech at an HOA meeting is protected speech under Civil Code section 425.16, as is a call to the police. These allegations should have been stricken, leaving only the crank phone calls.

But it did not play out that way. The attorneys had filed an anti-SLAPP motion, but this was before Beral v. Schnitt, and the judge ruled that the case could go forward since some of the allegations were not protected. He noted, however, that he was going to limit the case to just the prank phone calls, since the other allegations arose from protected speech.

Unfortunately, as is often the case, when it came time for trial, that judge was otherwise occupied and the case was reassigned to another judge. With no understanding of defamation law and privileges, the new judge didn’t limit the case to just the prank calls. The attorneys could not make the judge understand the applicable law, and the judge let all the issues go to the jury. He denied the motions in limine, and he even denied the proffered jury instructions that would have explained the concept of privilege.

Thus, the jury was allowed to award damages for the statements made at the HOA meeting, the statements made to the police, and the crank phone calls. If limited to the crank phone calls, this likely would have been a $1,000 judgment, but the jury was inflamed by the protected speech, and gave the huge award on that basis.

The lesson I learned from handling the appeal on this case is that you must strike these allegations by way of an anti-SLAPP motion, because they may escape every other challenge, with disastrous results.

Back to the alleged bank-robber. Read the rest of this entry »