Judges Don’t Understand 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.

It was with that prior experience and knowledge that I approached the case. I saw the claim of defamation based on a false police report, and knew that an anti-SLAPP motion would be required. I actually love when a complaint contains such a blatant example of protected speech, because it means that I can bring the anti-SLAPP motion knowing it will be granted, while also challenging any other allegations that may not be so blatant.

In this case, the police report was a slam dunk, because that is absolutely protected. The law is that communications to the police are within the SLAPP statute. (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439 [complaint to police is “made in connection with an official proceeding authorized by law”]; Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511 [in action by physical therapist against client alleging false report of child abuse, client’s “statements to the police clearly arose from protected activity”]; see generally ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009 [filing complaint with a government agency constitutes a “statement before an official proceeding” within section 425.16, subdivision (e)(1) ]; Lee v. Fick (2005) 135 Cal.App.4th 89, 97 [complaint to the government is itself “part of the official proceedings”]; Comstock v. Aber (2012) 212 Cal. App. 4th 931, 941–42). I normally don’t string cite in my articles, but I want to show that there is ample authority for the position that a police report falls under the anti-SLAPP statute.

The more challenging issue was going to be the claim that plaintiff was a bank robber. With an anti-SLAPP motion, there is no weighing of the evidence. The declaration of the plaintiff is taken as true. Thus, if the defendant files a declaration in support of the anti-SLAPP motion stating that the plaintiff is a bank robber, but the plaintiff files a declaration stating he is not a bank-robber, that is usually the end of the analysis. But not always (a point I could not make the Justices understand).

[UPDATE:  Civil Code § 47 was amended, effective January 2, 2021, to allow lawsuits based on false police reports if the report was knowingly false, or made with reckless disregard for the truth. For details, read You Can Now be Sued for Calling the Police, and listen to the Podcast, Are Calls to the Police Still Protected?.]

Joe the alcoholic.

One exception arises from case law citing to the Restatement of Torts, which gives the example of Joe the alcoholic. If I say that Joe is an alcoholic, and nothing else, and Joe sues me for defamation, he can defeat my anti-SLAPP motion (assuming it would somehow be a matter of public interest) by simply filing a declaration that says, “I am not an alcoholic.”

But let’s change it a little. Instead, I say, “Joe is an alcoholic. He lives next door to me, and almost every night, I see him sitting in his backyard, drinking a beer.”

If those facts are true, then case law holds that the statement is not defamatory, and instead is a non-actionable opinion. The distinction is that I have provided the information upon which I am relying in concluding that Joe is an alcoholic, and the listener is free to adopt or reject that conclusion.

Another example would be if I say, “Joe cheats on his taxes.” If that is untrue, it is defamatory. But if I say, “Joe cheats on his taxes, because he pays only the amount required by law, and someone who makes as much money as he does should pay much more,” that is non-actionable opinion.

That sort of issue was present in our “bank-robber” case. Using our fictional fact pattern, my client had in essence said that the plaintiff was a bank-robber, because he saw him go into a bank wearing a ski mask and saw him leave with a bank bag, whereas plaintiff claimed that he was on his way to the slopes, and got out a lot of cash for his vacation.

I brought the anti-SLAPP motion, knowing I should be successful in having the police report allegation stricken, and with a good chance of having the bank-robber allegation stricken as well, under the Joe the alcoholic line of cases. The listener was free to determine if going into a bank wearing a ski mask and leaving with a bag of money made one a bank-robber.

At the trial court, the judge went off on a couple of tangents and denied my motion on those bases. He focused on the bank-robber claim, and was so outraged by that statement that he just could not get past it to make an independent ruling on the false police report aspect.

This particular judge is actually very good, and I’ve won some very challenging anti-SLAPP motions in front of him, but I just couldn’t get him there on this one. As is always the case, the plaintiff has cited to Flatley v. Mauro, claiming that the real motivation for the statements had been some form of extortion. But that’s not how Flatley works. The extortion must be in the statements, not merely in the alleged motivation for making them. Flatley held that the demand letter from an attorney wasn’t protected under the litigation privilege because the letter itself was illegal extortion. Here, the plaintiff was arguing, and the judge bought into it, that deep down in his heart the motivation for the statements was for some future extortion. On that basis the judge appeared to indicate (his ruling was not entirely clear on the point) that I had not even satisfied the first prong of the anti-SLAPP analysis.

So, bad result, but great for appeal since the issues were so clear. The fact that the first prong was met was a no-brainer given the claim of a false police report.

I appealed, and at oral argument was met with a three-judge panel that had already decided where they wanted to go. As soon as I started talking, one of the Justices interrupted to say, “Your client said he was a bank-robber, he said he’s not a bank-robber, that’s the end of the analysis. This is a frivolous appeal.”

I challenged the Justice to explain how this could be frivolous, when there was a claim for damages based on a false police report. He could provide no answer. But another Justice chimed in and asked, if I was concerned about that allegation, why didn’t I just bring a demurrer?

Are you serious? Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism holds that if you demur to causes of action, you cannot later bring an anti-SLAPP to those same allegations. Why would I bring a demurrer, which would afford the plaintiff the chance to amend, when I could forever be rid of allegations by way of an anti-SLAPP, and recover the attorney fees incurred by my client?

Then the third Justice spoke up an asked if it was true that I had filed the anti-SLAPP motion while discovery was pending. Again, I turned it around on the Justice. If the complaint is subject to an anti-SLAPP motion, why would I delay filing the motion until after the client had taken the time to respond to pending discovery? The very reason that an anti-SLAPP motion stays discovery, is to prevent a plaintiff from using discovery as a means of harassment. This Justice had turned the concept on its ear, and was imputing some nefarious purpose to the anti-SLAPP motion since it avoided answering pending discovery.

The Court of Appeal denied the appeal, ignoring my challenge to explain how it could not fall under the anti-SLAPP statute when Plaintiff was seeking damages for a communication to the police. There were just too many competing legal issues involved in the case, and I think the panel just could not hold them all in their minds at the same time.

Buoyed by the opinion from the Court of Appeal, Plaintiff then sought attorney fees for the original motion, basically arguing that if the Court of Appeal found the appeal frivolous, the original motion must have been as well.

Thankfully, the trial judge did not agree, and in his holding alluded to the point I just made about all the competing law surrounding the anti-SLAPP statute. There is a standing joke among law students and attorneys, basically holding that something called the Rule Against Perpetuities* is simply incomprehensible. It is the equivalent of the Riemann hypothesis in the math world.**

The trial judge concluded that, even though it was denied, there was no showing that my anti-SLAPP motion had been brought in bad faith. He equated the field of anti-SLAPP law to the Rule Against Perpetuities, holding that it was largely incomprehensible.

But I’ve been in front of this judge many times, often on anti-SLAPP motions, and he is aware that I am well versed on the law. So before denying the plaintiff’s attorney fees on the original anti-SLAPP motion, he asked me if I should be held to a higher standard when determining whether an anti-SLAPP motion is frivolous. As I remember it (given that I am a legend in my own mind), he said something like:

“Mr. Morris, you are the Sage of SLAPP, the Professor of Procedure, the Maven of Motions; shouldn’t I hold you to a higher standard when deciding if a motion was frivolous?”

To which I answered, “Yes you should, but probably not in the way you are thinking. Neither court was able to offer an explanation as to how this was not a proper anti-SLAPP motion given the plaintiff is seeking damages for a report to the police. Perhaps this Sage of SLAPP sees things others don’t.”

Thereafter he denied the motion for attorney fees on the anti-SLAPP motion, ruling that it was not frivolous.

Thus, the defendant is doomed to go around the long way on this one. He will need to prove the truth of the statements he made, hopefully in front of a trial judge who can be made to understand the law, lest the jurors be left to award damages on privileged speech.

Pointless Footnotes.

* The rule against perpetuities is a legal rule in the Anglo-American common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests (traditionally contingent remainders and executory interests) in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest. In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the “dead hand” or “mortmain.”

The basic elements of the rule against perpetuities originated in England in the 17th century and were “crystallized” into a single rule in the 19th century. The rule’s classic formulation was given in 1886 by the American legal scholar John Chipman Gray:

No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.

** In mathematics, the Riemann hypothesis is a conjecture that the Riemann zeta function has its zeros only at the negative even integers and complex numbers with real part 1/2. Many consider it to be the most important unsolved problem in pure mathematics. It is of great interest in number theory because it implies results about the distribution of prime numbers. It was proposed by Bernhard Riemann (1859), after whom it is named.

The Riemann hypothesis and some of its generalizations, along with Goldbach’s conjecture and the twin prime conjecture, comprise Hilbert’s eighth problem in David Hilbert’s list of 23 unsolved problems; it is also one of the Clay Mathematics Institute’s Millennium Prize Problems. The name is also used for some closely related analogues, such as the Riemann hypothesis for curves over finite fields.

The Riemann zeta function ζ(s) is a function whose argument s may be any complex number other than 1, and whose values are also complex. It has zeros at the negative even integers; that is, ζ(s) = 0 when s is one of −2, −4, −6, …. These are called its trivial zeros. However, the negative even integers are not the only values for which the zeta function is zero. The other ones are called non-trivial zeros. The Riemann hypothesis is concerned with the locations of these non-trivial zeros, and states that:

The real part of every non-trivial zero of the Riemann zeta function is ½.

Thus, if the hypothesis is correct, all the non-trivial zeros lie on the critical line consisting of the complex numbers 1/2 + it, where t is a real number and i is the imaginary unit.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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