Author Archive
Context is Everything in Determining if a Statement is Defamatory
A recent holding in the Los Angeles Superior Court beautifully illustrates a point I have made here many times, and have explained to innumerable potential clients. But apparently, some attorneys still don’t embrace this reality.
Here are the facts, as set forth in the Court’s ruling, with additional information from news sources:
Michael Kassan is the former CEO and Chairman of MediaLink. According to its website, MediaLink is “the media & marketing industry’s most trusted and connected advisor, . . . specializing in defining the optimal path forward.”
MediaLink is a United Talent Agency (“UTA”) company, and apparently there was some acrimony between Kassan and UTA. Kassan sued UTA lawyer Bryan J. Freedman in Los Angeles Superior Court for slander and libel stemming from a statement the attorney made to Deadline (a news publication) in which he called Kassan a “pathological liar.” Freedman responded with an anti-SLAPP motion.
Freedman’s statement was found to satisfy the first prong of the anti-SLAPP analysis, both because it was “made in connection with an issue under consideration or review by a … judicial body,” and because it was a matter of public interest because the dispute between Kassan and UTA was extensively covered in the media.
Posted in SLAPP035 – Understanding the Public Interest Requirement
In Episode 35 of the California SLAPP Law Podcast, we take a deep dive into what constitutes a matter of public interest under the anti-SLAPP statute. It is apparent from the motions we are defeating that counsel is sorely lacking an understanding of this important point. As was held in the Supreme Court case of FilmOn v. DoubleVerify, it’s not enough to simply point to some amorphous matter of public interest. The challenged speech must be “closely related” to that public interest, AND it must somehow “advance the discussion” on the public interest.
We also discuss the craziest appeal Morris & Stone has ever faced. The defendant’s anti-SLAPP motion was denied, but only because of a procedural snafu. The patient Judge denied the motion without prejudice, and invited opposing counsel to refile the motion. No harm, no foul. So why did the attorney instead file an appeal? And is the denial of an anti-SLAPP motion even appealable when it was denied without prejudice?
Listen to Episode 35 for the answers.
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Does an anti-SLAPP appeal stay the action? [Updated]
Does an anti-SLAPP appeal stay the entire action?
Seemingly, this question has been clearly answered ever since the Supreme Court ruling in Varian Medical Systems v. Delfino, way back in 2005, but I still see a lot of confusion on the topic.
The truth is that an appeal from a ruling on an anti-SLAPP motion (granting or denying) does as a general rule stay the action, but there is some nuance. Certain activities can still continue, and the stay may not apply to all claims and parties.
This week, we were surprised that the opposing counsel did not file any opposition to our motion for attorney fees, following our successful anti-SLAPP motion. I was hopeful that the lack of a response was intentional, based on the modest fee request. But I suspected that it had something to do with the appeal he had filed. Upon receiving my Notice of Ruling, granting the requested attorney fees, he called to say that he was shocked that I would go forward with the motion, knowing an appeal was pending. But as I explained to him, an appeal does not stay a motion for attorney fees.
An appeal also does not stay collection of those attorney fees.
In another case, we prevailed on an anti-SLAPP motion against an attorney, who was representing herself in a defamation action against my client. After the victory, as is my practice, I asked her if she wanted to pay the current attorney fees in order to avoid the extra expense of the motion for attorney fees.**
She chortled, “You can’t bring a motion for attorney fees, because I filed a notice of appeal regarding the ruling on the motion.”
After I prevailed on my motion for attorney fees, as is my practice, I called counsel to ask if she wanted to pay the (now greater) fees in order to avoid the extra fees for my time spent on collection, and the embarrassment of having her wages garnished at her law firm. (Yes, unlike typical collection efforts, the time spent on collecting attorney fees following an anti-SLAPP motion is recoverable.)
She chortled (what can I say? She’s a chortling fool), “You can’t seek to collect those attorney fees while an appeal is pending.”
Quick sidebar: This is a common misunderstanding, because it is true that the collection of “routine” fees and costs is stayed just by filing an appeal. No appeal bond is required. See Chapala Mgmt. Corp. v. Stanton, 186 Cal.App.4th 1532, 1546 (2010). But cases like Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1434 (2001) have held that attorney fees awarded following an anti-SLAPP motion are more akin to sanctions, and collection is not stayed pending appeal. To stop collection, an appeal bond must be posted.
We garnished the attorney’s wages and received 25% of each of her paychecks while we awaited a ruling on the appeal. We defeated her appeal, and this time she took us up on our offer for her to immediately pay the remaining balance plus the additional fees incurred to oppose the appeal, thereby saving herself the cost of another attorney fee motion and continued garnishment.
Allow me to take you through the Varian Medical Systems decision, because it lays out a good summary of the historical background on this point, and explains what is stayed pending appeal. These are the facts as summarized by the Supreme Court. Read the rest of this entry »
Top 6 Worst Arguments Against Attorney Fees
I grow so weary.
Every time I submit a motion for attorney fees following a successful anti-SLAPP motion, I am met with at least one of the following arguments, that ten minutes of research would reveal are nonsense. I am convinced that most of the attorneys know what they are saying is wrong, but with no ability to make a viable argument against the fees, they elect to make all the usual crazy arguments in the hope they can slip one or more past the judge.
Here are the top 6 bad arguments attorneys make in opposition to my motions for attorney fees.
1. He didn’t provide his invoices.
I have never attached my invoices to a fee motion. The law is exceedingly clear that an attorney need only attest to the time he spent on the matter. The declaration is under penalty of perjury, and that is sufficient to establish the time. Margolin v. Regional Planning Comm. (1982) 134 Cal.App.3d 999, 1007.
But I go far beyond that. With a few key strokes, our billing program spits out all the time entries that went into the actual invoices, and I just cut and paste that into my declaration, deleting any entries that are unrelated to the anti-SLAPP motion. I attest to this fact in my declaration, and no judge has ever had a problem with that approach.
So why not just attach the invoices, since they contain the same information? First, because entries relating to communications with the client might reveal my thought processes and violate the attorney-client privilege. Also, the invoices would reflect all the time I spent on the case that was not related to the anti-SLAPP motion, and includes other information about payments and such. The client may have limited funds, and I might have decided to handle the anti-SLAPP motion with a small initial retainer. That would create an additional argument, with the opposition proclaiming, “The defendant only paid $5,000 for the motion!” (As you’ll see in a moment, the amount the client paid is irrelevant to the analysis.)
2. He didn’t provide his fee agreement.
Attorney fees are awarded on what is called the “lodestar” method. The fee award is based on a reasonable number of hours spent on the anti-SLAPP motion, times a reasonable hourly rate based on the experience of the attorney.
The rate the attorney is charging the client is irrelevant to the analysis. An attorney might decide to charge the client a reduced hourly rate. Indeed, the attorney might be charging the client nothing, with the understanding that he or she will get paid by the other side if they prevail on the motion. In such cases, the courts actually allow a multiplier, where the attorney might get, say, 1.5 times the reasonable hourly rate, to compensate the attorney for the added risk of handling the case on the contingency arrangement.
Despite these realities, plaintiff’s counsel will often argue that I should not be awarded the requested hourly rate because there is no proof that the client was actually charged that amount. In one case, the attorney thought she was being clever and served a discovery request for the fee agreement and invoices. I served an objection because the information was irrelevant. In her opposition she made a big deal of my failure to produce the documents, but the judge agreed they were entirely irrelevant.
3. There is no proof the client has paid the fees.
This is related to the above. In opposing the motion for attorney fees, the plaintiff’s counsel will state, “He has provided no proof that the client paid the amounts indicated,” usually in bold type, sometimes underlined with all caps. Read the rest of this entry »
We Finally Get a Court to Address the “All-or-Nothing” Concept
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 »
What is a SLAPPback Action?
I am often asked to pursue SLAPPback actions, and find that the requests usually arise from a misunderstanding of the basis for such an action. I will explain here the basics of a SLAPPback action and why, at least in my practice, the circumstances that would justify a SLAPPback seldom arise.
What is a SLAPPback Action?
SLAPPback actions are created and governed by Code of Civil Procedure section 425.18. Section 425.18(b)(1) defines SLAPPback:
“SLAPPback” means any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.
That simple definition should clear up much of the confusion. A SLAPPback is simply a malicious prosecution action brought by a defendant who successfully brought an anti-SLAPP motion that resulted in a dismissal of the original action. It could also take the form of an abuse of process action, but that will seldom be the case, as I will explain below.
Note also that a SLAPPback is an entirely new lawsuit. The defendant, having successfully extracted himself from legal proceedings by way of a successful anti-SLAPP motion, jumps right back in by filing a malicious prosecution action. I sometimes get requests to bring a “SLAPPback motion,” but as you can see there is no such beast.
Why are SLAPPback actions so rare?
Conceptually, every successful anti-SLAPP motion could be followed by a SLAPPback action. By definition, if an action is dismissed on the basis of an anti-SLAPP motion, then it had no merit. To survive an anti-SLAPP motion the plaintiff need only show that his claim has “minimal merit.” If it could not even meet that standard, then it almost certainly was brought without probable cause; one of the necessary elements of a malicious prosecution action. Read the rest of this entry »
SLAPP034 – Are Calls to the Police Still Protected Speech?
In Episode 34 of the California SLAPP Law Podcast, we examine the amendment to Civil Code section 47, which changed calls to the police from being absolutely privileged, to only conditionally privileged. Attorneys who sue for calls to the police, do so at their peril, as opposing counsel learned.
And we are happy to report that Morris & Stone created a new legal precedent, having to do with what we have long referred to as “all-or-nothing” anti-SLAPP motions. In Baral v. Schnitt, the California Supreme Court held that individual allegations of protected speech can be stricken from a complaint. But what if a defendant brings an anti-SLAPP motion that asks only to strike the entire complaint? How should the court handle it, when the defendant then changes course, and asks in the reply brief for individual allegations to be stricken?
Listen to Episode 34 for the answer.
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Are Online Reviews of Businesses Always Protected by the Anti-SLAPP Statute?
The legal pendulum swings, and attorneys who don’t stay current with anti-SLAPP law will likely be surprised by this new reality concerning online reviews.
As anti-SLAPP law developed through court decisions, one of the issues that needed to be decided was whether online reviews are a matter of public interest, such that they would fall under the first prong of the anti-SLAPP analysis.
I recall that while this issue was still in flux, I represented a client who had posted an online review about an attorney, who then sued her for defamation. I brought an anti-SLAPP motion, and argued vigorously that the review was indeed a matter of public interest because such reviews are useful to members of the public in deciding which professionals to hire.
A not very thoughtful judge in San Bernardino was shocked that a client would discuss the competency of their attorney in public. He denied my anti-SLAPP motion, stating that “the proper venue for such concerns is with the State Bar.”
Thankfully, the attorney in question was more thoughtful than the judge, and realized that the ruling would not survive on appeal, so he dismissed the action. While I did not win the battle, I won the war for my client.
My position – that online reviews are a matter of public interest – became the law of the land (not because it was my position, but because it made sense), and that position has been pretty sacrosanct for probably the last 20 years.
But as Bob Dylan sang, “the times they are a-changin’.” Recent decisions, and the judges in some of my recent cases, have been willing to listen to an equally persuasive counter-argument. Read the rest of this entry »
Well that didn’t take long – An anti-SLAPP victory based on my “all or nothing” case decision
As I explained in this earlier article, on December 27, 2023 (a slightly delayed Christmas present) the Court of Appeal issued an opinion in one of my cases that adopted my “all-or-nothing” reasoning as regards anti-SLAPP motions. You can go to the article for greater detail, but here is the concept in a nutshell.
The California Supreme Court case of Baral v. Schnitt held that an anti-SLAPP motion can be used to strike individual allegations of protected speech. Some courts had previously used a “gravamen” approach, whereby they would try to define the gravamen of a claim, to determine whether an entire cause of action could be stricken based on allegations of protected speech. If the gravamen of the claim was based on the protected speech, the entire cause of action could be stricken, even if it was a mixed cause of action. Baral held that a court does not need to think only in terms of the entire cause of action, but instead could strike individual allegations, and still allow the claim to go forward if allegations of unprotected conduct were sufficient to support the claim.
But it always takes some time for attorneys to “get the memo,” so even after Baral, attorneys continued to ask only that entire causes of action or the entire complaint be stricken, and would not specify individual allegations they wanted to be stricken. That practice continues to this day, even though Baral is now nine years old. (Nine years! I guess I should stop referring to it as “the recent decision of Baral v. Schnitt” in my briefs.)
Nonetheless, despite the lack of any request to do so, and with no notice to opposing counsel, courts would sometimes take it upon themselves to pick out the allegations of protected speech, and order them stricken. That would make defendant the prevailing party, entitling them to attorney fees.
I have for quite some time argued that is unfair and a violation of due process. A court is not supposed to grant relief that was not requested. Like any other motion, with an anti-SLAPP motion, the moving party files the motion, the plaintiff gets one chance to respond, and the moving party then gets to file a reply. What would always happen is the moving party would seek to strike the entire complaint, they would receive my persuasive opposition, and they would back peddle and state in their reply that “even if the court does not strike the complaint as requested, is should strike paragraphs 7, 23, and 47 of the complaint.”
How is that fair? I never had the opportunity to address whether those allegations should be stricken. Now, as a practical matter, I probably did address those allegations in opposing the anti-SLAPP motion, but my response would have been more focused on those specific allegations if a request to strike them was pending.
I always argued that if the defendant asked only that the entire complaint be stricken, then that is the only determination the court can make. I referred to this as an “all or nothing” motion. Even if the court should determine that the complaint is based in part on protected speech, it cannot grant the motion if there are sufficient allegations of unprotected speech to support the claims.
But the courts never had to address my all or nothing argument, because they would deny the opposition’s motion without going into that analysis.
And then came the decision of Paglia v. Hamilton, where the Court of Appeal finally embraced my all or nothing analysis. True to form, after I filed a bullet proof defamation action, defendant nonetheless filed an anti-SLAPP motion, making crazy arguments that the statements were protected, and seeking to strike the entire complaint. Upon receiving my opposition, the defendant replied with, “Well . . . hee hee . . . you know Court, when I asked you to strike the entire complaint, what I really meant was that you should strike the individual allegations of protected speech.” The trial court refused to do so, and the defendant appealed, and made the same argument that individual allegations should be stricken, even though the notice of motion made no such request. The Court of Appeal held that it would be improper to do so. And it was a published opinion! I now had authority to support my all or nothing argument. Read the rest of this entry »
The SLAPP is the Lawsuit
Sometimes I get so far into the weeds of SLAPP law, that I fail to explain the fundamentals. At least once a week a get a call from someone saying they’ve read one or more of my articles, and want to retain me to bring a SLAPP action.
Changing the facts to maintain privacy, today’s caller was thrown out of a movie theater for doing his own Mystery Science Theater 3000. He thought the crowd would be amused by his ongoing commentary about what was occurring on the screen. They weren’t.
He concluded that was an infringement on his right of free speech, and wanted to “bring a SLAPP suit.”
Back to basics.
SLAPP stands for Strategic Lawsuit Against Public Participation. A SLAPP is a legal action filed in order to chill someone’s exercise of public participation, whether that takes the form of speech in a public forum, or by way of litigation, to provide two examples.
So the SLAPP is the lawsuit. An anti-SLAPP motion is a RESPONSE to a lawsuit that is based on speech or conduct that is protected by the anti-SLAPP statute. Read the rest of this entry »
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