California SLAPP Law

The SS Imprecise Pleading

The legal profession is like a cargo ship. When a cargo ship decides on a new course, the change is slow and ponderous. When the Supreme Court issues an opinion, the time for that decision to filter down to counsel is equally slow and ponderous.

An attorney who didn’t get the memo.

For example, my last article spoke of the attorney who just this past month based his anti-SLAPP motion on authority holding that any report to the police is absolutely privileged. But that hasn’t been the law for over two years. A report to the police is now only conditionally privileged, and all of the authorities he cited have been superseded.

And so it is with the holding of Baral v. Schnitt, in which the California Supreme Court decided how causes of action with both protected and unprotected speech should be handled. Despite being seven years old, it seems that most attorneys are unaware of the holding.

Which brings us to today’s case study.

Four plaintiffs sued the same defendant, alleging defamation and breach of contract. The defendant brought an anti-SLAPP motion against all four plaintiffs, and their attorney announced that she would oppose the motion, confident that she would succeed in defeating it.

One of the plaintiffs wanted a second opinion, and came to me. After meeting with me and seeing the veins in my skull expand as all the knowledge passed through, he decided to hire me to oppose the motion. The other three plaintiffs (who hadn’t seen the bulging veins thing) stayed with the original counsel.

So there were two oppositions to the anti-SLAPP motion – mine and the original attorney’s. As to my client, I defeated the motion. As to the other three plaintiffs, the motion was granted. My client is off the hook for any attorney fees.

Lest you think I worked some kind of voodoo magic to defeat the anti-SLAPP motion when the other attorney could not, my client’s situation was slightly different from the rest, and I was able to capitalize on the distinction. The other three were not similarly situated.

But here is what I observed.

Baral v. Schnitt allows the court to go into the complaint with a scalpel and cut out any allegations of privileged speech. It is not enough for a plaintiff’s attorney to simply conclude that there is enough in the action to meet the second prong of the anti-SLAPP analysis. That’s all fine and good to keep the action moving forward, but if defense counsel can point to individual allegations that involve protected speech, and then plaintiff’s counsel can’t satisfy the second prong as to those allegations, the motion will be granted.

Here is an example of how this comes up, based on one of my pending motions, but modified to preserve privacy.

Plaintiff and defendant were business partners, but things fell apart. Plaintiff sued my client, claiming he had breached the covenant of good faith and fair dealing by starting a similar business, and by doing things to frustrate plaintiff’s ability to operate the business. As an example, plaintiff alleges that when he sought a city contract, defendant showed up to a City Council meeting and defamed him, causing him not to get the contract.

The action has no merit, because the covenant of good faith and fair dealing cannot create a contract term that is contrary to the express terms of the contract, and the contract states that either partner is free to start other businesses. But setting that aside, at least conceptually a breach of the covenant could arise from a partner starting a competing business. Since the plaintiff’s evidence is taken as true, perhaps the action could have survived if that was all the plaintiff had alleged.

But plaintiff sought to add another example of bad faith with the allegation about the city council meeting. There is no evidence that plaintiff can present to get around the absolute privilege of speaking at a city council meeting, so that handed me the opportunity to bring an anti-SLAPP motion.

View every allegation independently.

Simply stated, as plaintiff’s counsel, you must review any complaint allegation by allegation, and confirm that each one will survive an anti-SLAPP motion. And if you feel that an allegation of protected speech is necessary to provide context, but you are not relying on that allegation as a basis for the action, then explicitly so state.

Watch out for those incorporated allegations.

I see this mistake in 99% of complaints. The first paragraph of the first cause of action incorporates by reference all of the prior paragraphs. Then the first paragraph of the second cause of action does the same, and so on.

Again, go through each paragraph to confirm that you want to incorporate them. If you provided an allegation only for context as to the first cause of action, it may not make sense to incorporate that into the second cause of action. And often an allegation causes no anti-SLAPP issues as to one cause of action, but can turn a subsequent cause of action into a SLAPP.