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 wrote about the opinion, summarizing the facts of the case.

Bob felt like the attorney had misstated the facts. 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 wrote to warn Bob that if he did not voluntarily dismiss the 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 claim that would not run afoul of the anti-SLAPP statute.

“Why not just call the attorney and agree to dismiss the case?” asks someone in the back row. Thank you for engaging. That would likely work, but what if the attorney stuck to his deadline, and for the past week has been preparing the anti-SLAPP motion? Now the attorney is incentivized to file the motion in order to recover the attorney fees incurred in drafting the motion. He or she might rush to get the motion filed knowing that the plaintiff intends to dismiss. Besides, most all courts use electronic filing these days. In less time than it would take to reach the attorney, the dismissal could be prepared and filed.

Bob thanked me for my time but disagreed with my analysis. He had researched the issue and was convinced that he could defeat any anti-SLAPP motion. Some potential clients struggle with the concept that the harm caused by a statement does not dictate whether it is defamatory. Revealing an entirely truthful fact about someone could be devastating to their life, but it doesn’t make it actionable. I think that was Bob’s issue.

I didn’t hear from Bob for more than a year. He called, and after reminding me who he was and the facts of the case, he said, “I should have listened to you.”

You see, Bob had decided to stand firm. He had found an attorney who said I was crazy with the heat, and that there was no way the attorney’s blog would satisfy the first prong of the anti-SLAPP analysis.

Bob did not dismiss the action, and opposing counsel made good on his threat to bring an anti-SLAPP motion. As predicted, the motion was granted, and Bob unsuccessfully appealed the ruling on the anti-SLAPP motion.

So was Bob calling just to tell me how right I had been? No. Between the original anti-SLAPP motion and the appeal, the defendant had incurred over $100,000 in attorney fees, and judgment against Bob had been entered in that amount. Bob wanted to sue his attorney for the fees he had been ordered to pay.

I declined. I had advised Bob of that potential outcome. I felt it was disingenuous to hold an attorney responsible for an outcome Bob knew was possible. And a different judge on a different day might have concluded that an attorney’s blog did not satisfy the anti-SLAPP statute. It was not necessarily negligent for the attorney to pursue the motion.

If only Bob had listened to me.

Example 2: Everything I Said Was True

I was contacted by a potential client, let’s call him Bill, who wanted me to bring an anti-SLAPP motion against a defamation case. He had posted a review about a business and its owner, basically accusing both of defrauding him. They took umbrage with the remarks, and sued for defamation. Bill wanted me to dispose of the action with an anti-SLAPP motion, claiming he could prove everything he said in the review was true.

I reviewed the complaint and advised him that an anti-SLAPP would not be successful. It was the classic situation where the defendant could likely prevail on the first prong of the anti-SLAPP analysis – establishing that the statements satisfied the anti-SLAPP statute – but since in the anti-SLAPP context the plaintiff’s evidence is taken as true, there would just be no way to prevail on the second prong.

I told him how it would play out.

Bill would file the anti-SLAPP motion, stating that the plaintiffs had lied to him about the transaction. He would support the anti-SLAPP motion with his own declaration, attesting to all the misrepresentations made by plaintiffs. Since the post was a review of the business and its owner, the court would almost certainly find that the first prong of the anti-SLAPP analysis was satisfied as a matter of public interest.

So far so good.

But then the plaintiffs would oppose the motion. They would simply provide a declaration stating that they never made any of the misrepresentations alleged by defendant. Since their evidence must be taken as true, that means they did not make any misrepresentations to Bill, making his post claiming they defrauded him false and defamatory. (The actual standard on the second prong is whether plaintiff has stated a prima facie case “if the plaintiff’s evidence is credited.”)

The court is not permitted to weigh the evidence, so it must disregard Bill’s declaration. The anti-SLAPP motion would be denied.

I told Bill he should just defend the case, or work out a resolution with the plaintiffs, and not to bring an anti-SLAPP motion. Bill thanked me for my time.

More than a year later, Bill called again.

You see, Bill had rejected my advice, and had gone in search of another attorney who would bring an anti-SLAPP motion. As predicted, the anti-SLAPP motion had been denied. But even then, Bill wouldn’t let it go. He instructed the attorney to appeal the ruling on the anti-SLAPP motion, and that appeal also failed.

Bill had spent over $50,000 in attorney fees on the original motion and the appeal, and he wanted me to negotiate a refund with his attorney. His reasoning was that since I was the one who had told him not to bring an anti-SLAPP motion, I was in the best position to explain to his attorney that he never should have filed the motion or the appeal, and should voluntarily refund some or all of the fees.

I declined. I pointed out that he was aware of what I said, but still decided to move forward. How was the attorney any more culpable than him? True, a client is entitled to rely on the advice of their attorney, and the attorney had apparently recommended filing the anti-SLAPP motion. But Bill also had my input, so at a minimum he knew this was a possible result, and was now seeking to make the attorney responsible for his decision to roll the dice.

And the reality is that even though I could predict the failure of an anti-SLAPP motion, the attorney was not necessarily negligent in bringing one. The plaintiffs could conceivably have filed an honest declaration, admitting that they did indeed make the representations alleged by defendant, arguing instead that those statements were true. In that case, the judge could have concluded that the statements were misleading, and determined that the plaintiffs were not likely to prevail on the defamation action.

If only Bill had listened to me.