Author Archive
California Supreme Court to decide in GLAD v. CNN whether state Disabled Persons Act’s “public accommodations” include websites
See on Scoop.it – California SLAPP Law
This is an interesting disability case with anti-SLAPP implications. GLAD (an advocacy group for the deaf) brought an action against CNN, claiming that its failure to include closed captioning on all the videos it posts on its website, amounted to discrimination. CNN responded with an anti-SLAPP motion, which was denied by the District Court.
The appellate court, after observing that there was no dispute whether CNN’s online videos involved matters of public concern, held that the decision not to use captions did fall under the anti-SLAPP statute, and determined that GLAD was not likely to prevail on action since it could not show intentional discrimination based on disability. The court accepted CNN.com’s decision to display videos without captions prior to FCC captioning rules, even if not itself an exercise of free speech, as conduct “in furtherance” of free speech rights, especially given CNN’s concerns about potential costs, delay, and inaccuracies if forced to caption prematurely.
On a very interesting final note, the 9th Circuit’s referred GLAD v. CNN to the California Supreme Court for a determination of whether the DPA applies to online “places”. The California Supreme Court will now make a definitive statement as to whether websites have to comply with disability requirements.
Click on the “Scoop.it” link above for a more detailed discussion of this important holding.
See on www.lexology.com
Anti-SLAPP Ruling: Opinion by Standard & Poor’s Not Necessarily Protected Speech
With the wisdom of a penny-stock investor trying out day-trading for the first time, the brilliant financial minds at CalPERS (California Public Employees’ Retirement System) decided to dump more than a billion dollars into three “structured investment vehicles” or SIVs, backed by subprime mortgages. (That was a really long sentence but I think it’s grammatically correct.) After all, Standard & Poors had given these three SIVs AAA ratings, even though they were “stuffed full of toxic, subprime mortgages, home equity loans, and other types of structured-finance securities linked to subprime mortgages,” as CalPERS now alleges.
As most do when they make really bone-headed investment decisions, CalPERS looked for someone to blame, and settled on Standard & Poors for that AAA rating. It sued Standard & Poors for negligent misrepresentation, asserting that the ratings company should be held responsible for the losses suffered by CalPERS.
“But wait a cotton-picking minute,” said some fictional attorney representing Standard & Poors, “I read somewhere in law school that opinion is protected speech, and won’t support an action.” On that basis, Standard & Poor’s filed an anti-SLAPP motion, but a San Francisco judge denied the motion, finding that CalPERS had provided sufficient evidence to meet the second prong of the anti-SLAPP analysis. (Judge Richard Kramer to be precise, in case you happen to know the judges at the San Francisco Superior Court. Me, I never heard of the guy even though I have handled cases in that courthouse.)
Standard & Poors exercised its right to appeal that decision, but the Court of Appeal affirmed. As Justice Martin Jenkins (I don’t know him either) wrote:
We agree with CalPERS this evidence reflects that the Rating Agencies published the ratings from a position of superior knowledge, information and expertise regarding the SIVs’ composition, underlying structure and function that was not generally available in the market. More specifically, we conclude this evidence reflects not only that the Agencies employed superior knowledge and special information and expertise to assign ratings to the SIVs, they employed their special knowledge, information and expertise to participate in, and exert control over, the very construction of the SIVs. As such, we agree with CalPERS a prima facie case has been made that the ratings are actionable as ‘professional opinions’ or ‘deliberate affirmations of fact’ regarding the nature and quality of the SIV product.
While pure opinion speech is of course protected, and would generally protect Standard & Poor’s from it predictions, “the same cannot be said of the ratings at issue here, which were allegedly issued for private use by the limited class of investors dealing in complex and esoteric nonregistered securities,” Jenkins said.
IBM Mag Card Typewriter
The case is California Public Employees’ Retirement System, Inc. v. Moody’s Investors Services, Inc., 14 S.O.S. 2584. I have provided below the actual file-stamped copy of the complaint (complete with Civil Case Cover Sheet!) and the opinion of the Court of Appeal.
I have also attached a copy of the Order on a demurrer in the action. It has nothing to do with what we are discussing, but I wanted you to see it so you don’t make the same mistake the attorneys at Berman DeValerio made. Well, it’s not so much a mistake, per se, ab initio, but they prepared the proposed order and entitled the document “[Proposed] Order blah, blah, blah.” So far so good. The judge then reviews and signs the Order, and crosses out the word “proposed” in the name of the document. But then thinking that the footer has to exactly match the name of the document, the attorneys at Berman DeValerio (I’m guessing it was Daniel Barenbaum because he has a pretty high bar number, whereas Joseph Tabacco stated practicing back when IBM Mag Card typewriters were on the bleeding edge of technology, and he would therefore be very frugal with keystrokes) then put that exact title in the footer of every page in the proposed order. Poor Judge Kramer then had to cross out the word “Proposed” on every single page. No wonder it takes so long to get a case to trial in San Francisco. I never put the word “proposed” in the footer, and so far no one has ever complained.
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDSkQ1c0FIUC1TQXc/edit?usp=drivesdk” title=”Complete Calpers Complaint.pdf” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDbWFPWFVFVk83RUk/edit?usp=drivesdk” title=”Opinion re CalPERS.PDF” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDSUFaVmUwTXZOX0E/edit?usp=drivesdk” title=”Order from demurrer.pdf” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
Posted in Anti-SLAPP motion, Case Results, SLAPP | Tags: Berman DeValerio, Daniel Barenbaum, Joseph Tabacco | 1 Comment »
SLAPP005 – Anti-SLAPP Decisions for First Quarter of 2014
We’re not even done with the fifth month of 2014, and California already has 12 reported decisions arising from anti-SLAPP appeals.
In the 5th Episode of the California SLAPP Law Podcast, we discuss four anti-SLAPP decisions.
Anti-SLAPP Decisions:
MORIARTY v. LARAMAR MANAGEMENT CORPORATION (2014) 224 Cal.App.4th 125 — A landlord-tenant case with no particular significance other than to show the displeasure of the Court of Appeal with frivolous anti-SLAPP appeals.
SCHWARZBURD v. KENSINGTON POLICE PROTECTION & COMMUNITY SERVICES DISTRICT BOARD (2014) — Cal.Rptr.3d —-, 2014 WL 1691562, 2014 Daily Journal D.A.R. 5470 — An action against a Police District that was decided on the basis of CCP section 425.17.
TOURGEMAN v. NELSON & KENNARD (2014) 222 Cal.App.4th 1447 — Another case decided under section 425.17, which discusses the burden of the plaintiff when seeking to apply that anti-SLAPP exception.
ROGER CLEVELAND GOLF COMPANY, INC. v. KRANE & SMITH, APC (2014) 225 Cal.App.4th 660 — Which discusses the statute of limitations for a malicious prosecution action (not as obvious as you my think), and analyzes and applies the anti-SLAPP statute.
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SLAPP004 – Anti-SLAPP Motion: Yelp v. McMillan Law Group
In this 4th episode of the California SLAPP Law Podcast, I discuss the truly strange legal action brought by Yelp against one of its former customers, the McMillan Law Group.
In its complaint, Yelp alleges that it works to maintain the purity of the reviews posted on Yelp.com, and that the McMillan Law Group caused damage to Yelp by posting false positive reviews. McMillan Law Group has just responded with an anti-SLAPP motion. Together, we dissect both the Yelp complaint and the McMillan anti-SLAPP motion, and predict the outcome of the motion.
Here are the cases discussed in today’s show:
Romona Unified School District v. Tsiknas (2005) 135 Cal.App.4th 510.
Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.
Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1559 (dissenting opinion).
Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.
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Anti-SLAPP Negotiations Yield Faster Recovery of Attorney Fees and Better Client Service
What is the purpose of an anti-SLAPP motion?
Contrary to the seeming belief of some attorneys, the purpose of is anti-SLAPP motion is not just to recover attorney fees. Of course you should seek attorney fees after a successful anti-SLAPP motion, but the purpose of the motion is to extract your client from a wrongful and harassing lawsuit as quickly as possible.
Indeed, in a perfect world, when your client was served with a SLAPP, you would contact opposing counsel, instruct them on the error of their ways, and get a dismissal without ever having to bring an anti-SLAPP motion. In the real world, that’s not normally a viable option. Putting the opposition on notice that they have filed a SLAPP could afford them the opportunity to amend in order to change the nature of the action. Your effort to avoid further litigation could actually result in your client being trapped in an action that could have been disposed of with the anti-SLAPP motion.
However, after the anti-SLAPP motion is filed, the negotiations to end the action can begin. I have been successful in this effort on at least two occasions that I recall. I contacted opposing counsel, informed him of the attorney fees that had been incurred to date, and afforded the opportunity to settle the matter for the payment of those fees and costs before the case went any further.
I recognize that this approach is antithetical to many attorneys, who view an anti-SLAPP motion as an opportunity to run up the attorney fees. However, if the matter can be resolved early on, even before significant attorney fees are incurred, then that is always in the best interests of the client. Read the rest of this entry »
SLAPP003 – Anti-SLAPP Procedures and Strategies
A lot of useful information in today’s show, if I do say so myself.
We discuss anti-SLAPP procedures and strategies, and what you need to know about the 60 and 30 day deadlines for anti-SLAPP motions, and an easy and efficient way to protect your anti-SLAPP motion if the court clerk won’t set the hearing in 30 days or less.
I show you why it can be risky to amend a complaint, and why using a motion to supplement might be a better bet.
And we even discuss some tips for appeals and motions for summary judgment, as well as a free WordPerfect app for your iPad.
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Morris & Stone Victory – Reducing Attorney Fees
I am often brought in as an expert to oppose inflated attorney fee applications following an anti-SLAPP motion. Of course every case is different, but thus far I have never failed to get the requested fees reduced. Lest you be overly impressed, I will immediately note that I only handle a case if I agree that the attorney fees should be reduced. Sadly, there are far too many unethical attorneys who, after prevailing on an anti-SLAPP motion, view fee application as a winning lottery ticket, and greatly inflate the fees. In most instance my services are sorely needed to challenge the application, but there have been a few occasions where the fees being requested are reasonable in my opinion, and I inform the plaintiff and/or his attorney that I cannot opine that a reduction would be appropriate.
In today’s case, the fee application was of the all too common variety, where defense counsel grossly overstated the fees to which he felt entitled. In this case, the plaintiff had negligently filed a SLAPP, making the common mistake of seeking damages that flowed from fighting a legal action, claiming that the action was an “abuse of process.” When the defendant filed the anti-SLAPP motion, the plaintiff was educated as to the litigation privilege, and dismissed the challenged causes of action (others still remained). Rather than just bringing me in as an expert, the client decided to retain me to oppose the motion and prosecute the remaining causes. Read the rest of this entry »
SLAPP002 – Can Claims Against Lawyers Be Defeated with an Anti-SLAPP Motion?
In the last episode of the California SLAPP Law Podcast, I explained how crucial it is for every California litigator to understand this sweeping area of the law. There is virtually no litigation practice that won’t be impacted by the anti-SLAPP statutes.
If that was not persuasive enough, let me bring in a little closer to home. In today’s episode I discuss the common causes of action that are pursued against attorneys, and examine which of those have been found to fall under the anti-SLAPP statutes. Can claims against lawyers be defeated with anti-SLAPP motions?
Here are the cases discussed in today’s show:
BLEAVINS v. DEMAREST (2011) 196 Cal. App. 4th 1533; 127 Cal. Rptr. 3d 580.
In a neighbor dispute, court determined if a party to an action can sue the opposition’s attorney for malpractice.
OASIS WEST REALTY v. KENNETH GOLDMAN (2010) 182 Cal.App.4th 688; 106 Cal.Rptr. 3d 539
Does an attorney breach the duty of loyalty owed a former client when he or she actively takes a position against the former client on the same issue for which the lawyer previously had been retained, even though the lawyer is acting on his or her own behalf and there is no subsequent representation or employment?
KOLAR v. DONAHUE, MCINTOSH & HAMMERTON (2006) 145 Cal. App. 4th 1532
Holding that legal malpractice actions are categorically outside the reach of the anti-SLAPP statute.
ZAMOS v. STROUD (2003) 110 Cal.App.4th 60, 1 Cal.Rptr.3d 484
A malicious prosecution action can be based only on the filing of a lawsuit.
PEREGRINE FUNDING, INC. v. SHEPPARD MULLIN RICHTER & HAMPTON (2005) 133 Cal. App. 4th 658
Discusses breach of fiduciary duty action against law firm and the interplay of California’s SLAPP Law.
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Morris & Stone Anti-SLAPP Victory – Witness at EEOC Hearing Protected
Every week I get callers complaining about the anti-SLAPP statutes and/or the litigation privilege. The scenario is almost always the same. The caller sued someone for defamation for something they said in conjunction with litigation or an investigation by some government agency, and the caller was hit with an anti-SLAPP motion. The caller is outraged that the anti-SLAPP motion is keeping him from getting damages for the allegedly false statements made in court or court documents.
The outrage is misplaced, because the law is working properly by preventing the callers from doing what they are trying to do. The legal system cannot function without a litigation privilege. That privilege provides that anything said in conjunction with litigation is privileged, and cannot form the basis for a defamation action. And since the speech is privileged, a plaintiff can’t make an end run around the statute by just asserting different causes of action. I have written on this topic before, and the prior article shows what the justice system would be like without the litigation privilege.
Today I argued an anti-SLAPP motion in Los Angeles Superior Court, and the facts of the case provide a real life example of why the litigation privilege is so essential.
Let’s call the plaintiff in this case John. John decided one day that his employer was discriminating against him, and filed a complaint with the EEOC on that basis. There was then a dispute with his employer, with the employer saying John had violated a company policy and John denying that claim. The employer fired John for the alleged violation. John argued to the EEOC that the termination for the alleged violation was just more evidence of discrimination.
The EEOC investigated John’s claims of discrimination, and during that investigation interviewed our client, who also worked for the company. We’ll call him Dave. Read the rest of this entry »
Posted in Anti-SLAPP, anti-SLAPP motions, Case Results, Recent Cases, SLAPP, Victories | Tags: EEOC, Litigation Privilege | No Comments »
SLAPP001 – Why Every Litigator Must Know California SLAPP Law
California’s SLAPP Law provides for the use of special motions to strike, called “anti-SLAPP motions,” to quickly dispose of lawsuits that were filed only to improperly silence free speech or to prevent the defendant from pursuing a lawful legal remedy.
But as one person put it, the 15 Legislators who passed the law failed to consider the 4,000 attorneys who would interpret it. There is a dark side to California’s SLAPP Law. It trades one form of abuse for another. It was designed to protect free speech and the right of redress, but now it keeps some legitimate cases out of court because the risks are just too high. And with its automatic right of appeal, it is used to greatly delay trials. Any anti-SLAPP motion, no matter how ill-conceived, gives the defendant an automatic right of appeal. A defendant can therefore delay a trial for a year or more just by filing an anti-SLAPP motion.
Finally, with the right to attorney fees it provides, it provides unscrupulous attorneys with a mechanism that allows them to recover windfall fees.
With Episode 1 of the California SLAPP Law Podcast, I take you through the history of the anti-SLAPP statutes, and explain why every California litigator must be familiar with this law.
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Posted in Anti-SLAPP, anti-SLAPP motions, Case Results, Litigation, Podcast, Podcasts, Recent Cases | No Comments »
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