Archive for June 2021
SLAPP032 – The 3 Most-Often Miscited Anti-SLAPP Cases
We begin Episode 32 with the discussion of how Morris & Stone just defeated an anti-SLAPP motion. I reveal the common (and fatal) mistake made by defense counsel when they pursue anti-SLAPP motions.
And on the topic of mistakes, based on my prior article, we turn to the three cases that counsel almost always cite improperly when defending against an anti-SLAPP motion. Listen and find out what these three cases really stand for:
Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858.
Weinberg v. Feisel (2003) 110 Cal.App.4th 1122.
Flatley v. Mauro (2006) 39 Cal.4th 299.
Finally, in the after-show, I reveal a successful strategy to obtain a trial continuance, even when the judge has already said no.
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Posted in Three Common Mistakes by Defense Counsel on Anti-SLAPP Motions
Like shooting fish in a barrel (although I have never understood why, if the fish are already in a barrel, there would be any need to shoot them).
I (telephonically) attended oral argument on an anti-SLAPP hearing this morning, and it again demonstrated that attorneys are just not thinking through their motions. I was brought in to defend against the motion. In reviewing the motion, I immediately recognized that the attorney for the defendant had made three major mistakes, any one of which would likely guarantee denial of the motion.
Just the facts, ma’am.
This case involves one of those horrible situations where someone stops taking care of their home, and it eventually falls into such disrepair that the government has to step in and mandate repairs, with the threat of selling the home.
The homeowner (the defendant in our case) went along with the process. The homeowner’s insurer actually stepped up and paid for the repairs, and Defendant agreed to all of the planned construction. But in the end, he did not feel that the home had retained its original character, and took to the internet to vent against our client, the contractor who had performed the repairs.
As is so often the case, Defendant was not satisfied to merely tell the true story, explaining why he was unhappy. In these situations, Defendants want to hurt the business they blame for their travails, so they embellish. He made up more and more lies, to the point that he was saying the contractor was never authorized to make repairs, and had “stolen” the insurance proceeds.
Before I was involved, the contractor had sued Defendant for defamation. I was brought in to oppose the anti-SLAPP motion.
The Top Three anti-SLAPP Cases Every Defense Attorney Cites, Whether they Apply or Not
Although the legal community appears to have come far in the past 30 years as regards awareness of the anti-SLAPP statute, it is still often the case that when I bring an anti-SLAPP motion, the plaintiff’s attorney is caught totally unawares. Even in those cases where I have warned opposing counsel of my intention to bring the motion, it is usually apparent that they thought it would not be an issue, based on some miscomprehension of what the statute covers.
This leaves them to scramble to try and find some basis to challenge the anti-SLAPP motion, and in doing so they inevitably cite to one or more of the following three cases. Sadly, they almost always cite these cases in ways that do not apply.
I will identify the top three cases cited by defense counsel, and explain why they almost never apply. Read the rest of this entry »