California SLAPP Law

We just today received an opinion from the Court of Appeal, affirming our victory on an anti-SLAPP motion. Nothing earth shattering there; that is a relatively common occurrence at Morris & Stone.

But what makes this opinion more exciting than most is that the Court adopted a concept we have been advancing for years, without much success. The problem has not been that past courts have necessarily disagreed with our position, it’s just that they do not need to rule on the specific point in order to find in our favor, so the point is not discussed.

A Special Motion to Strike is still a motion to strike; it’s just special.

With a standard motion to strike, the moving party is required to set forth in the notice of motion specifically what they are seeking to strike. If the movant seeks to strike an entire paragraph, that paragraph can be identified by number, but if they want to strike individual words or sentences, those must be quoted verbatim.

This just makes sense, under the concept of due process. If a defendant moves to strike portions of a complaint, the plaintiff can’t properly respond to the motion if those portions are not identified. Quite properly, therefore, a court won’t entertain a motion to strike that simply states, “the court should strike any improper allegations contained in the complaint.”

And yet, as obvious at that concept may appear, that is precisely what occurs in almost every special motion to strike I oppose. The notice of motion will state only that the defendant is seeking to strike the entire complaint, but in response to my opposition, defendant changes tactics and asks that any individual allegations that arise from protected conduct be stricken, without ever identifying those allegations.

The vast majority of the time, the request does not become an issue, because the court simply denies the motion. But in opposing the motion, in addition to my other arguments, I always argue that the court CANNOT decide to split the baby and strike individual allegations, because the defendant did not identify them in the notice of motion. It would be highly unfair, and a violation of due process, for the court to go through the complaint with a scalpel and cut out individual allegations, when I have been given no opportunity to respond. 

Yet, on a couple of occasions, the court has done just that. The judge accepts the defendant’s invitation to seek out and destroy allegations of protected conduct. Where I was the attorney who drafted the complaint, I don’t recall this ever happening. As you can imagine, I am hyper-vigilant as to possible SLAPP claims, so I make sure there are no such allegations in the complaint. But I am often brought in to defend against an anti-SLAPP motion as to a complaint prepared by other counsel. They sometimes throw in an allegation for background that is arguably protected conduct.

A quick sidebar: When drafting a complaint, be very careful with the use of “incorporation by reference.” Attorneys almost universally set forth all the background allegations, and then under each successive Cause of Action, they begin with a paragraph that incorporates all the prior allegations. By doing so, they are indicating that all of those allegations are a basis of liability for each Cause of Action.

So, for example, purely to set the scene as to when the conflict began and/or to show the animosity between the parties, the attorney will allege in paragraph 7 that “defendant called the police on March 11, 2023.” Now the attorney gets down to alleging the First Cause of Action for defamation, which is based on what the defendant said to the National Enquirer. But without any thought, the attorney begins with the boilerplate paragraph, incorporating all the prior allegations into the defamation claim. Whammo blammo, the attorney has just alleged that the defamation claim is based, at least in part, on that call to the police. The defendant can now bring an anti-SLAPP motion on that basis.

When the judge ignores the lack of due process and decides sua sponte to select and strike a paragraph or two, that really gums up the works. That means the motion was granted in part, arguably making defendant eligible for attorney fees. Plaintiff’s counsel will have to cross his or her fingers, and hope that they will be able to persuade the judge not to award attorney fees on the basis that the victory was purely illusory.

Back to today’s victory.

Our client is a contractor, who did a brilliant job reconstructing the defendant’s home after it was partially destroyed by wildfires. But the defendant saw conspiracies everywhere, and took to the internet to tell lie after lie about our client. For example, he came up with the crazy claim that our client used materials from other projects on his home.

The contractor sued for defamation, and when he was met with an anti-SLAPP motion, we were retained to oppose that motion.

The anti-SLAPP motion sought to strike the entire complaint under a number of theories, including that the statements were all entirely true.

Another quick sidebar: Attorneys! Stop bringing anti-SLAPP motions based on the defense that the statements are true! Truth is indeed a defense to defamation, but it is next to impossible to prevail on that basis in the anti-SLAPP context, since the plaintiff’s evidence must be taken as true. The court is not permitted to weigh the evidence. Here, the defendant claimed that our client had committed fraud against the insurance company, by billing for materials already paid for on other projects. The complaint alleged that this was a false statement, and the plaintiff attested that it was false in his declaration. How, then, could the defendant possibly establish as a matter of law that the statement was true?

The notice of motion did not seek to strike any individual allegations, but upon seeing our opposition, defense counsel switched gears, and argued instead that individual allegations should be stricken.

In that regard, there were no allegations of protected conduct, so defense counsel engaged in some shenanigans in an attempt to confuse the court. As required, the complaint alleged the individual allegations made by defendant that plaintiff alleged were defamatory. So, for example, defendant had published something like:

The fire damaged seven windows in the living room area of my home, which the contractor replaced with mismatched windows taken from other projects already paid for by other insurance claims. Plaintiffs submitted new claims to my insurer, which was a fraud.

In the complaint, plaintiffs quoted this passage and then alleged as follows:

This statement was false and defamatory because the windows were not replaced with mismatched windows, those windows were not taken from other projects, and had not been paid for by other insurance claims.

In order to claim that the statements were true, defense counsel broke them down into small fragments without any context, as follows:

Plaintiffs cannot prevail under the second prong of the anti-SLAPP analysis, because each of the statements were true:

– The fire did damage seven windows.

– The windows were in the living room area of the home.

– The windows were mismatched, because they were different than the kitchen windows.

– Plaintiffs did submit new claims to defendant’s insurer.

The sentence fragments as stated were essentially true, but clearly plaintiffs were not claiming that these fragments are what made the statements false and defamatory. The trial court saw through this nonsense, and denied the anti-SLAPP motion, and that denial was upheld on appeal. Most satisfyingly, the Court of Appeal finally addressed the improper effort to strike individual allegations, when no such request was made with the motion:

As an alternative to striking Plaintiffs’ whole complaint, Defendant asks us to strike individual portions of their complaint “identified throughout this brief and in the Table of Statements for which [the Court of Appeal] finds Plaintiffs failed to meet their burden.”

Defendant included a “Table of Statements” in his opening brief. His table lists 22 of the statements Plaintiffs attacked as libels.

Each of the 22 statements requires a different set of legal arguments, authorities, facts, and record citations. Defendant’s request in effect is for this court to develop, at his demand, 22 different, detailed, and individual legal and factual analyses. His briefing omits these 22 analyses.

Appellants may not enlist the court as their legal assistant to develop arguments they merely suggest. The duty to present legal analysis belongs to the parties. It would be unfair for one side to loft an undeveloped legal idea, to rely on the court to work it out, and to leave the opposing party with nothing concrete to tackle in the briefing. (Cf. Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 565 [failing to develop a reasoned argument supported by authority improperly forces the court to decode a bare assertion that the judgment, or part of it, is erroneous]; United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [to demonstrate error, an appellant must supply the court with cogent argument supported by analysis and record citations].)

Defendant’s lack of individualized argumentation on his 22 ideas forfeited these grounds for appeal.

I wish the Court of Appeal, in this published opinion, had given more detail. As worded, it appears that the primary objection is on procedural grounds; the court will not perform the task of determining the arguments. But the important language is there, with the Court stating that “It would be unfair for one side to loft an undeveloped legal idea, to rely on the court to work it out, and to leave the opposing party with nothing concrete to tackle in the briefing.” That quote will now be standard in all future briefs when I make my “all or nothing” argument.

August 7, 2024 Update:

The core of this action is the defendant’s manifest vitriol toward someone who performed a service for him — the contractor who repaired his home. An attorney, knowing that past behavior, should pause for a moment to consider whether they may have the same experience if they work for the client. The contractor was trashed online despite the great work he did. The attorney should have realized he might suffer the same fate, regardless of the quality of his work.

This action was file in January 2021, defendant brought the anti-SLAPP motion in April 2021, and we successfully opposed that motion in June 2021. But through the appeal process, and multiple concomitant extension requests, the matter was delayed for over three years. If delay was the goal, then defense counsel has done a superlative job. But I suspect his client is not pleased. So far he is zero for two. He lost on the anti-SLAPP motion and the appeal, no doubt at great expense. At some point the client had to have asked, “So four years and $60,000 later, you are telling me that we have accomplished nothing?!”

Not surprisingly, with the matter finally back on the docket and heading toward trial, defense counsel filed a motion, asking to be relieved as counsel, set to be heard tomorrow. In every fee agreement I have ever seen, the client agrees to sign a substitution of attorney if the attorney wishes to withdraw. When an attorney has to file a motion to be relieved, that usually means there is a dispute between the attorney and the client. Nothing is accomplished by forcing the attorney to bring a motion — absent some extenuating circumstance, the court isn’t going to force the attorney to continued to represent the client — so refusing to sign the substitution is almost always a “screw you.”

It appears counsel should have paused a little longer before deciding to represent the defendant.

But fortunately for us, he did, because it created a legal precedent we have already been able to cite probably half a dozen times in the four months since the opinion was published. Although there is nothing wrong with doing so, I keep waiting for the opposition to respond, “Morris is citing his own damn case!” To let them know I am doing just that, I even drop some not so subtle hints like, “Pointing to the BRILLIANT argument by plaintiff’s counsel, the Court of Appeal agreed that the portions to be stricken must be identified, and not left to the court to divine.” Thus far the clues seem to have gone over the heads of opposing counsel.