California SLAPP Law

When I suggest that a caller should pursue a certain strategy, I sometimes continue to monitor the case to see if my advice was taken to heart. Sadly it is often the case that my advice was ignored and the caller suffered a terrible result.

Some of the most costly examples are when I recommend to a client that they should dismiss or not pursue their complaint because it is clearly a SLAPP.

Example 1: The Case of the Mad Appellant

The first example involved an attorney’s blog where he reported on interesting appellate opinions. The caller, we’ll call him Bob, had pursed an unsuccessful lawsuit followed by an unsuccessful appeal. The resulting published opinion from the Court of Appeal included some interesting legal precedents, so the attorney (who had nothing to do with the case) wrote about the opinion, summarizing the facts of the case.

Bob felt like the attorney had misstated the facts, and sued for defamation on that basis. He directed me to a passage in the attorney’s article and compared it to the way the Court of Appeal had summarized the facts. In Bob’s mind, the differences were enough to make the attorney’s version a false statement of fact, but I viewed it as a distinction without a difference.

The defendant’s attorney had written to warn Bob that if he did not voluntarily dismiss the defamation complaint, they would respond with an anti-SLAPP motion. The attorney had given Bob seven days to dismiss the case, and two weeks had already passed. Bob wanted to know what he should do.

I reviewed the complaint, and it was clear that an anti-SLAPP motion would almost certainly be successful. Reporting on a court decision would likely be found to be a matter of public interest, and there are additional protections for such articles under Civil Code § 47(d). Further, on a defamation claim, a statement is not false just because certain facts are misstated, so long as the “gist or sting” of the statement is accurate. The fine distinction Bob was making about the differences between the opinion and the article did not alter the gist or sting of the factual statements.

I told Bob he had been given a gift by the attorney’s warning that an anti-SLAPP motion was in the offing. I explained that once the anti-SLAPP motion is filed, the attorney will be entitled to recover attorney fees, even if Bob then elects to dismiss the complaint. I told him he needed to win the race to the courthouse to get his dismissal on file before the defendant filed an anti-SLAPP motion. Bob would not necessarily be giving up the case. He could dismiss without prejudice and perhaps find a creative claim that would not run afoul of the anti-SLAPP statute. Read the rest of this entry »