Author Archive

We Finally Get a Court to Address the “All-or-Nothing” Concept

All or Nothing Sign

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.  Read the rest of this entry »

The First Amendment Protects Speech the Government Decides is False

Sign reading "Danger Slippery Slope"

The “slippery slope” argument is often dismissed with disdain, but seemingly always by the people willing to turn a blind eye to reality.

When arguing an appeal, I often use an extreme example of what could occur should the court fail to find in my client’s favor. A justice will sometimes seek to counter my example by stating that such an extreme result is unlikely, but that beautifully makes my argument. “Unlikely” is not the same as impossible, and if the best that can be argued is that the result is unlikely, that means it is possible, and the policy must be considered in that light.

This is especially true as regards the First Amendment. For every policy reason one might offer to justify a limitation on the freedom of speech, I can counter with an example of how that limitation will be abused. The facts of United States v. Alvarez, 567 U.S. 709, illustrate this point.

The case involved a man by the name of Xavier Alvarez (“respondent”). As set forth in the opinion of the court, Alvarez had a propensity to spin tall tales. “He lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704.”

The facts and arrest.

In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” None of this was true. As the Court put it: “For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.”

Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal of Honor at the meeting. The United States District Court for the Central District of California rejected his claim that the statute is invalid under the First Amendment. Respondent pleaded guilty to one count, reserving the right to appeal on his First Amendment claim.

In turn, the United States Court of Appeals for the Ninth Circuit found the Act invalid under the First Amendment and reversed the conviction. After certiorari was granted by the Supreme Court, in an unrelated case, the United States Court of Appeals for the Tenth Circuit, found the Act constitutional. So there was now a conflict in the Courts of Appeals on the question of the Act’s validity.

A little history.

Congress, over a century ago, established an award so the Nation could hold in its highest respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to the defense of the rights and honor of the nation,” have acted with extraordinary honor. And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

The issue presented by this conflict was therefore relatively straightforward. In the interest of a legitimate government objective, can the First Amendment’s protections be curtailed?

The Government argued that the criminal prohibition is a proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.

Here is how the Court resolved these competing interests. Read the rest of this entry »

Anti-SLAPP Attorney Fees and the “Spectrum of Success”

Abstract compass with needle pointing the word success with blur effect. Conceptual image suitable for a motivational poster or a business concept.

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 »

Stormy Daniels’ Action Against Trump Goes Down in Flames

Stormy Daniels Complaint on Fire
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

Man with elephant
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 »

Imprecise Pleading Will Run Afoul of the Anti-SLAPP Statute

Cargo ship on ocean

The SS Imprecise Pleading

The legal profession is like a cargo ship. When a cargo ship decides on a new course, the change is slow and ponderous. When the Supreme Court issues an opinion, the time for that decision to filter down to counsel is equally slow and ponderous.

An attorney who didn’t get the memo.

For example, my last article spoke of the attorney who just this past month based his anti-SLAPP motion on authority holding that any report to the police is absolutely privileged. But that hasn’t been the law for over two years. A report to the police is now only conditionally privileged, and all of the authorities he cited have been superseded.

And so it is with the holding of Baral v. Schnitt, in which the California Supreme Court decided how causes of action with both protected and unprotected speech should be handled. Despite being seven years old, it seems that most attorneys are unaware of the holding.

Which brings us to today’s case study.

Four plaintiffs sued the same defendant, alleging defamation and breach of contract. The defendant brought an anti-SLAPP motion against all four plaintiffs, and their attorney announced that she would oppose the motion, confident that she would succeed in defeating it.

Alien with big brainOne of the plaintiffs wanted a second opinion, and came to me. After meeting with me and seeing the veins in my skull expand as all the knowledge passed through, he decided to hire me to oppose the motion. The other three plaintiffs (who hadn’t seen the bulging veins thing) stayed with the original counsel.

So there were two oppositions to the anti-SLAPP motion – mine and the original attorney’s. As to my client, I defeated the motion. As to the other three plaintiffs, the motion was granted. My client is off the hook for any attorney fees.

Lest you think I worked some kind of voodoo magic to defeat the anti-SLAPP motion when the other attorney could not, my client’s situation was slightly different from the rest, and I was able to capitalize on the distinction. The other three were not similarly situated.

But here is what I observed.

Baral v. Schnitt allows the court to go into the complaint with a scalpel and cut out any allegations of privileged speech. It is not enough for a plaintiff’s attorney to simply conclude that there is enough in the action to meet the second prong of the anti-SLAPP analysis. That’s all fine and good to keep the action moving forward, but if defense counsel can point to individual allegations that involve protected speech, and then plaintiff’s counsel can’t satisfy the second prong as to those allegations, the motion will be granted.

Here is an example of how this comes up, based on one of my pending motions, but modified to preserve privacy. Read the rest of this entry »

Is a Request for Civil Harassment Restraining Order Subject to an Anti-SLAPP Motion?

restraining order on judge's bench

Restraining Orders and anti-SLAPP Motions

A very interesting issue arose in an anti-SLAPP matter that was brought to me. It involved a pretty specific situation that I have encountered only once before, but I think a research article is in order, to assist others who might find themselves in the same situation. The case arose from the client’s (Petitioner) obnoxious neighbor (Respondent). Suffice to say that Respondent had over the years engaged in annoying and threatening behavior, and our client had had enough. At the suggestion of the police, she filed an application for a Civil Harassment Restraining Order.

The Judicial Council has created forms to be used for this purpose, and like any form, it is at best a loosely fitting tool for the job. Petitioner filled out the forms the best she could, and attached a declaration to provide some additional facts she thought would be relevant for the court’s analysis.

In her declaration, she told the story of how she had repeatedly called the police in an effort to address Respondent’s harassment. She then said that in response to one of these calls to the police, Respondent had retaliated by making his own police report.

Oops. Reports to the police fall under the anti-SLAPP statute, so that afforded Respondent the opportunity to bring an anti-SLAPP motion, seeking to strike that “allegation.”

Petitioner didn’t know how to deal with the motion, and just showed up on the date set for the restraining order hearing. Thankfully, the court put off that determination so the anti-SLAPP motion could be heard, and set a briefing schedule. Petitioner then hired the Sultan of SLAPP, moiRead the rest of this entry »

Slander Requires a Witness

rumors

You can’t prove slander without a witness.

I recently prevailed on back to back anti-SLAPP motions based on this simple defamation concept that often alludes attorneys and their clients. Plaintiffs bring a defamation action based on the assumption that the defendant is running around slandering them, but they have no witness to the alleged slander.

Apparently they assume that having filed the action, they will then be able to use the discovery process to find a witness. But this approach leaves them completely vulnerable to my anti-SLAPP motion. So long as I can convince the court that the alleged statements fall under the anti-SLAPP statute, the plaintiff is left with no means to satisfy the second prong of the analysis. They can’t prove that they are more likely than not to succeed on the action, since they can’t provide a witness to the statement. How can they prove the statement was defamatory, if they can’t prove that it was ever made?

I often have to explain this same reality to potential clients who want to hire me to pursue the action.  They want to do exactly what the aforesaid plaintiffs did, that left them open to my attack. So the realities of prosecuting a slander action warrants a discussion on this site.

Don’t sue for slander if you don’t have a witness.

Let’s begin with some definitions. As you likely know, if one is defamed in writing, that is libel, and if the defamation is spoken, that is slander.

In the case of libel, you can show the defamation by offering the written document. This can make it easier to prove the case, since the evidence is right there in black and white. However, it is not as simple as some assume.

For example, let’s make you Sue Smith, and you live at 123 Main Street. You wake up one morning and while reading the paper over a cup of coffee (yes, there are some of us who still enjoy reading the paper), you come across an article that says, “Police report that Sue Smith, who resides at 123 Main St., was booked on suspicion of drunk driving. Officer Dave Friendly stated that this was Smith’s third drunk driving arrest, making it a felony.” None of it is true. Probably because of some snafu, the police got it wrong.

Do you have a viable defamation action? Most people who call want to sue the newspaper, but for the reasons set forth in this article, most likely that is a nonstarter.

The person who told the lie is Officer Friendly. So can you sue Officer Friendly, since the paper quoted him? Possibly, but even though the defamatory statement is right there in writing, you don’t yet have an action. How do we know Officer Friendly really said such a thing? It could be that the good officer said something completely different, and your action will be against the newspaper for getting it wrong. News outlets are protected when they accurately quote a public official, even if the official is wrong, but they’ll have to show that Officer Friendly really said what they say he said.

Slander is even tougher.            Read the rest of this entry »

SLAPP033 – How to Defeat an anti-SLAPP Motion with Inadmissible Evidence

California SLAPP Law

In Episode 33 of the California SLAPP Law Podcast, we revisit the California Supreme Court decision of Sweetwater Union High School District v. Gilbane Building Co. Our client was sued by an attorney, and we had the action dismissed by way of an anti-SLAPP motion. The attorney appealed, and in his briefs, he never mentioned the Sweetwater holding, and we sure were not going to bring it up. The Court of Appeal brought it up anyway. Would the attorney be able to reverse the ruling, based on evidence that might be admissible at trial?

We also discuss how sometimes the best thing to do is nothing. We were brought in to oppose an anti-SLAPP motion, but when the trial court kept continuing the hearing, I told the client, “wait for it, wait for it . . .”

And I tell the tale of nice woman who ran afoul of the anti-SLAPP statute with her cross-complaint, and was faced with a massive attorney fee application. She could not afford to hire us, but a little guidance from the wings saved her from disaster.

A Curious Anti-SLAPP Victory Tale

Curious anti-SLAPP victory

The Saga of a Curious anti-SLAPP Victory Begins

A prospective client sent me a complaint he had received, thinking it might be a SLAPP. When I began handling anti-SLAPP matters almost 20 years ago, most attorneys were unaware of the law, let alone clients. I now get a surprising number of clients who are already aware of the law when they call, either from other attorneys who have referred them to me, or from their own research.

I reviewed the complaint, and after discussing the details with the client, I decided it was indeed a SLAPP.

Here are the facts.

The defendant, my client, grew concerned when he saw some bruises on his young grandchild. The child’s father had divorced, and after some questioning, the child reluctantly revealed that his mother’s new boyfriend was responsible for the bruises. My client immediately notified his son (the child’s father), who contacted the police and took the child to the hospital. The doctor, as a mandated reporter, contacted Child Protective Services.

The alleged abuser sued my client for defamation, and a myriad of other claims, alleging he had falsely reported child abuse to both the police and the doctor at the hospital.

Defamation is vastly different than personal injury.

I checked the website of the firm representing the Plaintiff. On the website, the attorneys refer to themselves as “The Talent.” I saw that their primary practice areas appear to be criminal law and personal injury. That explained a lot. I have encountered this phenomenon on a number of occasions. Personal injury attorneys bring defamation actions, assuming they will flesh out the facts through discovery as the action proceeds. Read the rest of this entry »

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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Lake Forest, CA 92630

(714) 954-0700

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NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

This site seeks to present legal issues in a hopefully entertaining manner. Hyperbolic language should not be taken literally. For example, if I refer to myself as the “Sultan of SLAPP” or the “Pharaoh of Free Speech,” it should not be assumed that I am actually a Sultan or a Pharaoh.

Factual summaries are entirely accurate in the sense of establishing the legal scenario, but are changed as necessary to protect the privacy of the clients.