Archive for April 2023
Anti-SLAPP Attorney Fees and the “Spectrum of Success”
Today’s instructive tale involves an anti-SLAPP motion I brought on behalf of a client, and the motion for attorney fees that followed. It provides a good illustration of what I have named the “Spectrum of Success.”
First, an analogy.
Picture that you are involved in an auto accident. Thankfully no one was hurt, but both cars are totaled – your $23,000 Toyota Corolla and the other guy’s $2,400,000 Aston Martin Vulcan.
At the scene of the accident, you both exchanged insurance information. You were both very civil about the whole thing, and shook hands before departing. However, while shaking his hand, you placed your other hand on the other driver’s shoulder, not realizing it was covered with grease. You ruined his $2,000 suit.
Who was at fault is in dispute, and the other guy sues you for negligence, seeking: (1) $2.4 million to replace his car; and (2) $2,000 to replace his suit. Since your insurance only covers up to $30,000 for property damage, your wallet is going to take a serious hit if you are found liable.
You decide to pay extra for a top attorney in this field, and that decision pays off. The attorney immediately recognizes that an Aston Martin Vulcan is a track-only car, and is not street legal. Your attorney brings a motion to strike the allegation that seeks money for the damage to the car, on the basis that the plaintiff was committing an illegal act by operating the car on the street. But for that illegal act, the car could not have been damaged.
The judge agrees and grants the motion. The successful motion does not dispose of the action – the negligence action still remains as to the $2,000 suit – but your exposure to the $2.4 million dollars in damages to the car is gone.
By any measure, that is a great result. Wouldn’t you agree? Read the rest of this entry »
Posted in Stormy Daniels’ Action Against Trump Goes Down in Flames
I went to update this article based on recent news, and had to chuckle at all that has happened to the parties involved in the interim.
The Non Disclosure Agreement between Stormy Daniels and Donald Trump is all back in the news because Trump has now been criminally charged for some still undefined crime, relating to the money paid to Daniels. But here is the legal history.
The tale began back in October 2018, when I first reported that adult film star Stormy Daniels was originally suing Donald Trump under a declaratory relief action, seeking to invalidate a “hush” agreement she has signed and been paid for. Her attorney, Michael Avenatti, then tried to get cute by filing a defamation action. The alleged defamation resulted from an incident that purportedly occurred in a parking lot, where Daniels says she was threatened to keep her mouth shut. Trump referred to the story in a Tweet as a “con job,” and Avenatti on behalf of Daniels claimed that amounted to defamation since Trump was accusing Daniels of lying. I predicted at the time that the action would be thrown out on an anti-SLAPP motion, and that proved to be true. The court concluded that Trump’s tweet was “rhetorical hyperbole” and was protected speech that could not be the basis of a defamation action. Daniels was hit with $293,000 in attorney fees.
But following the dismissal of the defamation action, I pointed out that still left the original declaratory relief action. Since the attorneys had presumably spent far more time on that matter than the ridiculous defamation claim, I said that Avenatti might get the last laugh as to attorney fees if he was able to prevail on that claim.
Avenatti isn’t laughing. Read the rest of this entry »
Just Because the Case Involves Speech, that Does not Automatically Make the Complaint a SLAPP
Oy. Some judges.
As the old saying goes, to a hammer everything looks like a nail, and I have confessed here that I have a natural bias to view every complaint I see as a SLAPP. But there are many a judge who take this to ridiculous extremes, with no thought of the purpose of the anti-SLAPP statute.
Say it with me judges. “Just because the facts of a case involve speech, that does not automatically make the complaint a SLAPP.”
Today’s tale comes out of Monterey, California. The animal rights group PETA had a beef (see what I did there?) with the way a local zoo was treating its elephants. PETA didn’t like that the human trainers shared unrestricted space with the elephants. Apparently they walk along the elephants to herd them out to the show area, where they talk about the elephants to the paying public.
This presents a problem because if the elephants get unruly, the trainers have to use canes to encourage the elephants to stop acting up. It’s also not a totally safe practice. In 2018 a zoo employee was seriously injured by an elephant that did not like the “aggressive action” taken by an employee. There was a dispute between PETA and the zoo as to whether the use of canes was a violation of California law, designed to prevent cruelty to animals. Read the rest of this entry »