A Curious Anti-SLAPP Victory Tale

Curious anti-SLAPP victory

The Saga of a Curious anti-SLAPP Victory Begins

A prospective client sent me a complaint he had received, thinking it might be a SLAPP. When I began handling anti-SLAPP matters almost 20 years ago, most attorneys were unaware of the law, let alone clients. I now get a surprising number of clients who are already aware of the law when they call, either from other attorneys who have referred them to me, or from their own research.

I reviewed the complaint, and after discussing the details with the client, I decided it was indeed a SLAPP.

Here are the facts.

The defendant, my client, grew concerned when he saw some bruises on his young grandchild. The child’s father had divorced, and after some questioning, the child reluctantly revealed that his mother’s new boyfriend was responsible for the bruises. My client immediately notified his son (the child’s father), who contacted the police and took the child to the hospital. The doctor, as a mandated reporter, contacted Child Protective Services.

The alleged abuser sued my client for defamation, and a myriad of other claims, alleging he had falsely reported child abuse to both the police and the doctor at the hospital.

Defamation is vastly different than personal injury.

I checked the website of the firm representing the Plaintiff. On the website, the attorneys refer to themselves as “The Talent.” I saw that their primary practice areas appear to be criminal law and personal injury. That explained a lot. I have encountered this phenomenon on a number of occasions. Personal injury attorneys bring defamation actions, assuming they will flesh out the facts through discovery as the action proceeds.

But defamation doesn’t work that way, at least when the complaint is a SLAPP. A plaintiff might be able to obtain permission from the court to conduct some discovery after the anti-SLAPP motion is filed, but if permitted at all, the scope of the discovery will be very limited, and may not reveal what plaintiff had hoped. A defamation action that has the potential to be a SLAPP should never be filed unless the evidence necessary to defeat the motion is in hand.

Here, the Plaintiff knew that child abuse had been reported to the police and the treating physician, but he had no details as to who had made the report or what specifically was said. In reality, my client has said nothing to the police, and he merely repeated to the doctor what he had been told by his grandchild.

Each instance of speech was protected.

The California Legislature unfortunately changed the law in 2021, making it possible to sue for a report made to the police. (If you want to know why that is so unfortunate, read this article.) But even the new law requires a showing of malice to make the report actionable. Since my client had never spoken to the police, Plaintiff could not possibly show malice. The anti-SLAPP statute makes reports to the police a protected activity, so all of the causes of action satisfied the first prong of the anti-SLAPP analysis, since they were all based in part on the purported report to the police.

Similarly, reports to mandated reporters are also protected, unless malice can be shown. What the client said to the treating doctor fell under this protection (Penal Code § 11172). Plaintiff had no information as to what had been said to the doctor, and thus could not possibly perform a proper analysis to determine if he was running afoul of the anti-SLAPP statute.

What Plaintiff says is not necessarily enough.

To the extent that Plaintiff’s counsel gave any thought to the SLAPP statute, he might have believed that he could defeat any anti-SLAPP motion by having his client provide a declaration stating that he never abused the child. There is some logic to this.

With an anti-SLAPP motion, if the defendant satisfies the first prong of the analysis – establishing that the speech falls under the anti-SLAPP statute – the burden then shifts to plaintiff to present evidence that he is more likely than not to prevail on the action. This is the so-called “minimal merit” standard. For purposes of this second prong, the evidence presented by plaintiff is taken as true, and the defendant’s evidence is largely ignored, unless it defeats the claim as a matter of law.

So, in a typical anti-SLAPP scenario, if the defendant published the claim that plaintiff was a child abuser, plaintiff could defeat any anti-SLAPP motion with a declaration stating, “I have never abused a child.” But in the context of showing malice, the precise words and context must be known. What if the defendant said this to the doctor: “I’m just here out of an abundance of caution. I saw some bruises on my grandchild, and he claims they came from [Plaintiff]. I thought someone should know.”

Nothing in that statement shows malice. The Defendant is not even claiming that Plaintiff abused the child. He is merely relaying what he observed and was told. So a declaration from Plaintiff stating that he never abused the child is largely meaningless, since Defendant made no such claim.

Curiouser and Curiouser.

Late into the evening on a Tuesday, I filed my anti-SLAPP motion on behalf of Defendant, and emailed a courtesy copy to the two attorneys listed on the complaint. First thing the next morning I received an email from Plaintiff’s counsel, acknowledging receipt of the anti-SLAPP motion and requesting that I add six additional attorneys from the firm to my service list.

I don’t like to come right out of the gate being obstructive. Doing so can create an unnecessarily adversarial atmosphere for the entire action. But I found the request to be entirely unreasonable. I can certainly understand that any firm would want to afford every attorney, paralegal, and secretary there the opportunity to read my prose, but that should be handled on their end, perhaps with some distribution list entitled, “This Guy Writes Like Shakespeare.” Unless you intend to list all eight attorneys on the pleadings, I don’t think it is my task to serve everyone you think might be interested.

It was clear to me that this was a form of posturing, as in:

“You better be worried. We’ve assigned eight attorneys to this matter; ready to jump on anything you send. That anti-SLAPP motion you served? We all laughed at your anti-SLAPP motion. We fart in your general direction. Your mother was a hamster, and your father smelt of elderberries!”

But as I have written many times, posturing often just comes back to humiliate you. Within five minutes of my email, opposing counsel called with a contrite tone. He asked if we would agree to continue the hearing on the motion to some later date. As it turns out, in the couple of hours between the “please add our entire firm to the proof of service” email, and the receipt of my response, the firm decided to fire the client. The requested continuance was being sought in order to afford the client some additional time to find new counsel.

What could have possibly occurred during those couple of hours? Perhaps they read the motion, and could not see a way to defeat it? Or perhaps the client wasn’t too happy with his case being staffed by eight attorneys.

This is not the first time I have witnessed this reaction to one of my anti-SLAPP motions. Of course, I have no way to know what occurs, but I envision that they filed the complaint, oblivious that they were filing a SLAPP, and upon reading my anti-SLAPP motion, conclude that they screwed up. I think they then call the client to suggest that he dismiss, and when he refuses, they elect to fire him. Especially in the case of a personal injury attorney, they probably took the case on a contingency basis, and upon realizing the matter will not end with a quick settlement, have no desire to oppose an anti-SLAPP motion or continue with the case. Again, pure speculation.

Anti-SLAPP motions cannot be continued with impunity.

I informed opposing counsel that I had no objection to continuing the hearing on the motion, in order to afford Plaintiff the time to find new counsel, but that the stipulation had to be handled in a certain way

I have a concern with continuing anti-SLAPP motion hearing dates. The anti-SLAPP statute states that the hearing on the motion must be set within 30 days. For many years, this presented a challenge to an attorney bringing such a motion, since most court’s won’t hear them that quickly. The attorney had to go to court on an ex parte application to move up the date, which was routinely rejected, but at least that protected the motion since the attorney had tried to get the motion heard within 30 days. Thankfully the courts ultimately held that it was not the duty of the attorney to get the motion heard within 30 days. The burden was instead placed on the court clerk.

But what if the court clerk sets the hearing for the earliest available date (or the attorney does so through the court reservation system), and then the attorney stipulates to a later date as an accommodation to Plaintiff’s counsel? I am not aware of any decision that has addressed this situation, but the argument could be made that the moving attorney has intentionally acted in contravention of the anti-SLAPP statute, by setting a date that was beyond earlier available dates.

Thus, it is my policy that if opposing counsel wants to move out the date, I will do so only if the stipulation provides that the opposing party and the court will not deem the hearing on the motion to be late.

Within hours, opposing counsel provided a proposed stipulation, but with none of the protective language I had required. I wrote to opposing counsel, explaining in detail exactly what I needed, and never heard from him again. The hearing date remained on the original date (two months after the motion was filed), and I assumed that opposing counsel had decided to continue representing Plaintiff, or had determined that two months was sufficient time for him to retain new counsel.

A strange hearing.

The deadline for the opposition to the motion came and went, with no opposition ever being filed. Given the specter of attorney fees, I could not imagine that an attorney would simply leave an anti-SLAPP motion unopposed. There is some wisdom to not forcing me to reply to an opposition if there is no good basis to oppose, but I would anticipate an attempt to negotiate a walkaway; Plaintiff dismisses his action if we waive our fees.

The court issued a tentative ruling the day before the hearing, granting the unopposed motion, with a detailed analysis of why the complaint was a SLAPP. Given that the motion was unopposed and the tentative was in my favor, I deemed it safe to appear at the hearing by Zoom call. Given the lack of attention to the matter by opposing counsel, I thought he simply would not appear.

I guessed wrong. I could see from the people listed on the Zoom call, that he was attending remotely as well, along with the Plaintiff. An attorney is typically not permitted to argue against a motion when no opposition has been filed, so I was shocked when the Judge asked him if he had seen the tentative, and if he wanted to be heard. I suspected that the Judge had momentarily forgotten that the motion was unopposed. I considered jumping in to explain that the motion was unopposed, but thought better of it since the judge had just invited him to speak. She could have been offering him an opportunity to explain why the motion was unopposed.

The full extent of his response to the invitation to speak was this: “Your Honor, Defendant admits that he spoke to the staff at the hospital.”

There may have been a few more words that I don’t recall, but in concept that was the full extent of the argument. But that point was meaningless. Yes, as set forth in his declaration, my client had spoken to the doctor, but so what? We argued, and the court agreed in the tentative, that the conversation with the doctor was protected and did not reflect any malice. The attorney could not have understood what was going on if he thought pointing out my client had spoken to the doctor was somehow salient.

By then, the Judge apparently recalled that the motion had been unopposed, and explained to opposing counsel that he could not now argue. Counsel’s response to this was even stranger:

“In that case, your Honor, I’d like to call my client as a witness.”

What part of “unopposed” did he not understand? An attorney is permitted to request live testimony at a law and motion matter, but the request must be made three days before the hearing, and it must be approved by the court. An attorney can’t just show up on the day of the hearing and make the request, since that would afford the opposition no opportunity to prepare or possibly have counter-witnesses. In any event, an attorney can’t simply forgo opposing a motion, thinking he will just call witnesses at the hearing.

And what testimony could the client have offered? The two issues were what was said to the police, and what was said to the doctor. Plaintiff was not present at either, and thus could not possibly offer testimony to the relevant issues that was not inadmissible hearsay.

The judge denied the request for live testimony.

Then, as a final gasp, referring back to his earlier request to me for a continuance of the hearing date, he said, “Your Honor, would it help if I said that we had discussed continuing this date?”

The judge responded no, and asked if I wanted to be heard. My “argument” was even shorter than opposing counsel’s: “Your Honor, Defendant submits on the tentative.” The Judge made the tentative her final ruling. The anti-SLAPP motion was granted in full, and the judge emphasized that the case was dismissed against my client.

As I mentioned earlier, opposing counsels’ website indicates that they do criminal law and personal injury. A number of criminal law attorneys have told me over the years that they prefer criminal law over civil law “because there is no paperwork.” Perhaps opposing counsel believed you really could eschew filing an opposition and instead just show up at the hearing and put on your client.

What did the attorney say to his client?

I just can’t imagine what the attorney could say to the client. It’s bad enough that the client is now going to be on the hook for some pretty significant attorney fees for the anti-SLAPP motion, but what is the explanation for filing the complaint in the first place, and then failing to oppose the motion or at least trying to reach a compromise?

As is my practice, when I served the Notice of Ruling, I added a note that we would be willing to provide a slight discount to the attorney fees if the amount was paid before the necessity of filing a motion for the fees. If I don’t have to prepare that motion, the Plaintiff saves significant additional fees. I am very curious to see if opposing counsel at least explores the possibility, or continues the seemingly blasé representation. Or perhaps he will leave the motion for fees unopposed, and seek instead to offer live testimony.

——-

[UPDATE:] Plaintiff’s counsel responded to my offer of a slight discount by saying that his client would agree not to appeal the court’s ruling if my client waived all the attorney fees.

What’s wrong with this picture?

On appeal, a party is limited to arguing the issues that were presented to the trial court. An issue cannot be raised for the first time on appeal.

It is a common tactic to use the threat of an appeal as leverage to reduce a judgment or, as here, to reduce or eliminate the attorney fees awarded following an anti-SLAPP motion. But it is a very weak threat. An appeal does not stay collection efforts, so we will collect the fees while the appeal is pending. To stop collection, the Plaintiff in this case would have to post an appeal bond, equal to 1.5 times the amount of the fees. This is fantastic for us, because the money is waiting when the appeal is over, without spending any time on collections.

But specific to this case, what would the Plaintiff appeal? Again, an issue cannot be raised for the first time on appeal. Since Plaintiff did not oppose the anti-SLAPP motion, what can he argue was error?

I could not care less if Plaintiff decides to appeal. The judgment earns 10% interest until it is paid, which is one of the best investments around for the client. Nonetheless, I always feel bad for the opposing party, who should have been advised by their attorney that they were filing a SLAPP and would be hit with attorney fees.

I took the time to go through the math with opposing counsel. There is zero chance of prevailing on appeal under these circumstances, and the meter is still running. For the reasons explained below, the attorney fees incurred on appeal are typically 1.5 times those incurred on the original motion. And there is the time that will be spent on the motion for attorney fees incurred for the original motion, and for another fee motion following appeal. Thus, if there is an appeal, the opposing party will likely end up being on the hook for more than three times the amount of the current fees.

The opposing party would be foolish not to immediately pay the discounted fees and be done with this. Hopefully his attorney will steer him in that direction.

An appeal is not a mere rehash of the original anti-SLAPP motion.

A motion for attorney fees is brought after a successful anti-SLAPP motion. If the opposition then unsuccessfully appeals the ruling on the anti-SLAPP, anther motion for attorney is brought in the trial court for the additional fees incurred on appeal.

As sure as night follows day, when I file my motion for attorney fees following an appeal, the opposition tries to argue that the appeal brief is just a rehash of the original motion, and should only take few hours. In the most extreme example of this, one opposing counsel (unsuccessfully) argued that the entire appeal should not have taken more than three hours.

It doesn’t work that way. Here is case authority, explaining that an appeal brief needs to be much more than a rehash of the points and authorities raised in the trial court:

“[A]ppellate practice entails rigorous original work in its own right. The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.” [Marriage of Shaban (2001) 88 CA4th 398, 410, 105 CR2d 863, 871—notion that “appellate counsel’s task was merely to ‘simply change the trial points and authorities into an appellate format’ is not well taken”; see also Center for Biological Diversity v. County of San Bernardino, supra, 188 CA4th at 621-622.]

 

“We take this opportunity to advise appellate attorneys who use material from trial memoranda to take care in adapting the material to the altered focus of appellate review. Points that are irrelevant to the appeal should be omitted. Subsequent pertinent legal authorities should be addressed. Arguments should be tailored according to the applicable standard of appellate review.” [Sebago, Inc. v. City of Alameda (1989) 211 CA3d 1372, 1387-1388, 259 CR 918, 926].

 

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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(714) 954-0700

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NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

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