California SLAPP Law

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?

And now to my anti-SLAPP motion.

That’s how it is with an anti-SLAPP motion. It can still be a huge victory, even if it does not dispose of the action.

I was once retained to handle an appeal following a defamation action. My client had made statements about the plaintiff at an HOA meeting, and had reported the plaintiff to the police. The plaintiff sued for defamation for those statements, and even though both instances involve protected speech and could have been eliminated with an anti-SLAPP motion, my client’s prior attorney had failed to bring the motion. By the time of trial, he recognized that the speech was protected, and brought a motion in limine on that basis, but the judge could not be made to understand, and denied the motion.

The statements thus went to the jury, which awarded significant damages, based on the protected speech. The judgment would have been pennies, if anything, had that allegation been stricken. It is essential to eliminate such allegations at the anti-SLAPP stage, lest they end up in front of the jury.

The partial victory.

The above accident scenario is roughly analogous to the anti-SLAPP motion I prevailed on, in terms of the results. My client was being sued under four causes of action; three causes of action seeking damages, and one for declaratory relief. All the damage claims were based in part on protected speech, and the purported damages arose therefrom. For example, my client reported the plaintiff to the Department of Health, and plaintiff was suing for what she said to the Department of Health, as well as the $30,000 he spent correcting all the Health Code violations. But a report to a government agency is protected, and hence a claim for damages based on that speech is a SLAPP.

So I responded to the complaint with an anti-SLAPP motion. As with the accident analogy, I knew my motion would not entirely dispose of the action, since the declaratory relief action would remain, but striking the protected speech allegations would leave the plaintiff without any claim for damages.

The judge granted my motion. In fact, in her Minute Order, the word “GRANTED” was in all caps and was bolded. But while she did strike the allegations as requested, she did not strike any of the causes of action.

In my opinion, that ruling was inconsistent. The only damages claimed by plaintiff flowed from the stricken allegations. Without those allegations, there won’t be any damages. So why is the action proceeding? But that is an issue for another day. The fact remains that I eviscerated the action with the removal of those allegations. As with our hypothetical, the case will continue, but I disposed of the heart of the action. A pretty good day’s work.

So how do you calculate the attorney fees?

Under the anti-SLAPP statute, attorney fees are mandatory to a defendant who prevails on an anti-SLAPP motion. Section 425.16(c)(1) provides simply: “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.”

Although the statute makes the fees mandatory, case law has developed what I call the “Spectrum of Success.” On the one end of the spectrum are those cases where the defendant brings a motion that completely disposes of the complaint. In that situation, the defendant is entitled to recover all their fees, although the court decides if the requested fees are reasonable.

On the other end of the spectrum are those situations where the defendant technically prevails on the motion, but the victory has no impact on the case. This might arise where the complaint contains an allegation involving protected speech, but the court determines that the action does not arise from that speech. The court orders that allegation stricken, but concludes that doing so affords no tangible benefit to the defendant, since the grounds for liability still remain. In that case, the court is permitted to deny any attorney fees.

And between those two extremes on the Spectrum of Success are all the cases where the defendant prevails on the motion, but fails to get all the relief requested.

For example, in one case I sought to strike five out of five causes of action, and the court only struck four of the claims. In scenarios like that, the court can apportion the fees as it sees fit. For example, the court could have given me 80% of the requested fees since I was only 80% successful. Alternatively, the court might decide that the issues were so intertwined that it does not make logical sense to try and apportion the fees. That’s what the court decided in that case. All five claims were addressed collectively, so it didn’t take me any more time to challenge the five claims than it would have taken to challenge just four claims. Hence, there was no reason to apportion the fees, and the court awarded the full amount I requested.

Back to our tale.

So the anti-SLAPP motion was GRANTED, and I brought the concomitant motion for attorney fees. True, all four causes of action still remained, but I had eliminated every basis for damages.

I admitted right up front in my motion that the court would need to decide where this result fell on the Spectrum of Success. It was not a total victory, because the action will still proceed, but it was still a major victory, because plaintiff is left with no basis for damages. Given this reality, it would have been malpractice to ignore the possibility of recovering at least a portion of the fees incurred by my client.

Opposing counsel loses his mind.

The dispute over fees seemed very binary to me. I would argue that my anti-SLAPP motion had been very successful, and try to convince the court to award fees on the high end of the spectrum. Counsel for plaintiff would argue that my victory was largely illusory because all the causes of action remained, and argue for fees on the low end. I did not imagine what happened instead.

Plaintiff’s counsel argued that not only should we not be awarded any fees, we should be sanctioned for even daring to bring the motion. “In fact, now that I think about it, the original anti-SLAPP motion was so ill-conceived, I should recover all the fees incurred in opposing that steaming pile of horse dung,” was the thrust of his argument.

I repeatedly run into attorneys who apparently hold firm to the saying, “the best defense is a good offense.” When faced with a tight, well reasoned, seeming irrefutable motion, they respond by claiming it is so without merit that sanctions should be awarded against me for daring to bring it. The stronger the motion, the more strident the demand for sanctions becomes. To date, the gambit has never worked, and I have to believe the judge sees through such tactics.

In support of such a bold claim, opposing counsel pulled out all the stops in his opposition brief. He even retained a purported “expert” to attack my fee application, and explain why the original anti-SLAPP motion was utterly without merit. (You know, the one that was GRANTED with all caps and bold type.)

The expert destroys any vestige of his own credibility.

In a perfect litigation world, an expert should be impartial, and simply apply their special expertise to the situation in order to come to an opinion on the topic at hand. When it is apparent that the expert is making false assertions in order to reach a desired conclusion, they lose all credibility. Jurors are specifically instructed that if an expert lied in one part of their testimony, they should be viewed with distrust regarding anything else they said. He made such obviously false assertions, that it was no surprise that the judge utterly disregarded everything he said.

There were so many problems with the expert’s opinions. Judges deal with fee applications every week, and know what attorneys charge. I’ve seen judges approve hourly rates as high as $1,200, yet the “expert” made the ridiculous assertion that no attorney has ever charged more than $450 per hour, and that an anti-SLAPP motion should take no more than five hours to prepare. He even opined that the court should limit the fees to just half an hour, claiming that I should have called opposing counsel, explained anti-SLAPP law to him, and allowed him to amend his complaint.

Oops.

But what truly left the expert’s credibility in shambles were his repeated misstatements of my time entries.

In support of my time, I cut and paste the time entries from our invoices, into a declaration attesting to the time. One of those entries read as follows:

.8 – Review court’s 8-9-22 minute order and draft notice of ruling, adding in details of oral argument to preserve for appeal (Notice of Ruling filed).

The expert challenged that entry, with the following statement:

“Client was billed 0.8 for a Notice of Ruling that was not ordered or needed as the Court issued and served a written Order.”

The claim is nonsensical for a couple of reasons. First, the entry includes more than just preparation of the Notice of Ruling. Even if the expert concluded that I should not have prepared a Notice, is he saying that I should never have reviewed the court’s ruling on the motion? Should I still be sitting here today, wondering how the court ruled?

But here’s the thing. In that minute order, the court did order me to prepare a Notice of Ruling. One would think that before asserting that the Notice of Ruling was not necessary because the court had not ordered one, the expert would read the minute order to determine if that was the case. Wow.

Here’s what the Judge had to say about the expert.

I always hope the judge will take the expert to the woodshed over a declaration such as this. Many years ago, not on one of my cases, I witnessed a judge lay into an attorney for the wording of his declaration. As I recall, it was just a stupid discovery dispute, and the moving attorney, Attorney A, had filed a declaration about his meet and confer efforts with opposing counsel, Attorney B.

Attorney B responded with his own declaration, beginning with the statement, “everything stated by Attorney A in his declaration is a lie.”

The judge ruled on the motion, and then scheduled what is called an “order to show cause.” He told Attorney B that on a given date, he was to return to court, at which time he and the judge were going to go line by line through the declaration filed by Attorney A, and for every statement that was not a lie, Attorney B would be sanctioned.

“For example, the declaration begins with, ‘I am a partner with the law firm of Smith & Jones.’ If Attorney A is in fact a partner with the law firm of Smith & Jones, you will be sanctioned. The next sentence is, ‘I am admitted to practice law in California.’ If Attorney A is in fact admitted to practice law in California, you will be sanctioned. He next states that he is the attorney of record for the defendant in his action, Joe Dokes. If he is in fact the attorney of record for Joe Dokes, you will be sanctioned. We will follow that process through the entire declaration.”

I always hope for that sort of response when an expert so misstates the facts, but it never happens. Despite page after page of misstatements by the expert, to which I had to respond in my reply (and for which opposing counsel’s client likely paid $5,000 or more), the judge said nothing about the expert, but rejected everything he had to say with the simple conclusion:

“Mr. Morris’ hourly rate and the time spent on the motion are reasonable.”

Motion for fees granted, high on the Spectrum of Success. Request for sanctions denied.

I thought the judge might not have been totally enamored with my anti-SLAPP motion, since she did not strike the causes of action. I knew she would award attorney fees (and that the sanction request was ridiculous), but it still remained to be seen where she would place the victory on the Spectrum of Success. I need not have worried. She got it.

“Although defendant did not eliminate any cause of action as pled, she successfully eliminated a substantial portion of the predicate claims, and thus significantly narrowed the scope of the complaint.”