Author Archive
Discussions of a Doctor’s Competence Will Almost Always Fall Under the Anti-SLAPP Statute
Many years ago, I represented a woman who had posted a Yelp review about her lawyer, who sued her for defamation over the review. In response to my anti-SLAPP motion, the judge stated that the performance of a lawyer was not a matter of public interest, and therefore did not fall under the anti-SLAPP statute. The judge was incredulous that I would even make such a claim, saying that if my client had a problem with the lawyer’s performance, she should have complained to the State Bar.
He was wrong.
The appellate courts have since uniformly held that the performance of doctors and lawyers (and other professionals) are always a matter of public interest, since the public is generally interested in the competence of a doctor or lawyer they may be considering. In the specific case of a doctor, the peer review process also enjoys protection under the anti-SLAPP statute, albeit under a different provision.
So, when concerning a doctor’s competence, comments on a review site, or the peer review process, are protected. But what about the general comments concerning a doctor’s competence that are spread around a hospital? Would those too be protected? For example, what if the other doctors at a hospital warn patients about a particular doctor? That’s not really a public review, and it certainly isn’t part of the formal review process, so would such warning be covered by California’s anti-SLAPP statute? Read the rest of this entry »
Does an anti-SLAPP appeal stay the action?
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.
As an example, I recently 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 recover those attorney fees while an appeal is pending.”
We are currently receiving 25% of each of her paychecks while we await a date for oral argument on the appeal.
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. These are the facts as summarized by the Supreme Court. Read the rest of this entry »
Shia LaBeouf – An Anti-SLAPP Legend in His Own Mind
Shia LaBeouf, the actor of Even Stevens and Transformers fame, walked into one of my favorite eateries, and was denied service by the bartender, who felt that LaBeouf had already had enough. As Hollywood teaches, everything is based on racism, so LaBeouf immediately assumed that the refusal had to be based on racism, and called the bartender a “fucking racist” and “fucking racist bitch” (hereinafter, ‘FRB”). In classic, “do you know who I am?” fashion, LaBeouf pounded his fist on the bar counter, and yelled “you’re not going to fucking serve me?”, before going around behind the bar to confront the bartender, who felt sufficiently threatened to arm himself with a bottle of Grey Goose vodka.1 LaBeouf was escorted from the bar.
The bartender took umbrage with being called an FRB in a restaurant full of people, so he sued LaBeouf for defamation. After foolishly failing to consult with me, LaBeouf responded with an anti-SLAPP motion, and here’s where things get fun. Why would anyone on God’s green earth think that this defamation action would be subject to an anti-SLAPP motion? What is the public interest that would bring it under the statute?
But before accusing LaBeouf and his attorneys of being foolish for thinking that the an anti-SLAPP motion would apply to these facts, allow me to throw them a small bone by providing a little legal context. Read the rest of this entry »
Never Forget that the Plaintiff’s Declaration is Taken as True
Evidence on anti-SLAPP motions.
I see too many cases where attorneys have properly identified that the allegations of a particular complaint fall under the anti-SLAPP statute, but then fail to complete the analysis. An anti-SLAPP motion is only viable if the second element favors the defendant. For a successful anti-SLAPP motion, if must be the case that the plaintiff will not be able to show that he is likely to prevail, and that determination is made base on the plaintiff’s evidence, which is taken as true.
For the second step of the anti-SLAPP analysis, it must always be remembered that the court is not permitted to weigh the evidence; indeed, the evidence offered by the plaintiff is taken as true, even if defendant offers contrary evidence.
I get shocked silence followed by howls of protest when I explain this to potential clients. How is it possible that the plaintiff’s evidence should be taken as true, to the exclusion of all the great evidence that defendant can offer? Read the rest of this entry »
Is it Defamatory to Call Someone “Racist”?
In today’s political climate, the term “racist” gets used in seemingly every discussion. I get at least one call a week from a potential client wanting to sue someone for defamation because they were called a racist.
But is it defamatory to call someone “racist”? Would such an action be viable? To answer that question, let’s first set the legal scene, beginning with the elements of defamation.
The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) The elements for libel and slander differ slightly, but both require a false and unprivileged statement. Read the rest of this entry »
Forum Shopping Can Avoid Anti-SLAPP Statute
Anti-SLAPP Forum Shopping
About 30 states have anti-SLAPP statutes, and applying some sophisticated mathematical algorithms, that means there are about 20 states that don’t have anti-SLAPP statutes. This reality has led to the completely predictable phenomenon of forum shopping to avoid anti-SLAPP protections. If you are a public figure, or want to avoid protected speech issues, head to a state with no anti-SLAPP law.
One popular destination is good old Virginia. Ironically, Virginia’s motto is Sic semper Tyrannis, meaning “thus always to tyrants.” Virginia is a good place for tyrants to go so their lawsuits can’t be challenged. (It’s actually a shortened version of a Latin phrase meaning, “thus always I bring death to tyrants,” but my tortured version works better in the context of this article.)
Without any editorial comment intended as to their motives or the merits of their actions, it happens that Congressman Devin Nunes filed a defamation action in Virginia against Twitter and a parody account called “Devin Nunes’ Cow.” And Johnny Depp filed a defamation action against his ex-wife, Amber Heard, for an opinion piece she wrote for The Washington Post, discussing her alleged domestic abuse. She actually never mentioned Depp by name in the piece, but given their well known marital controversy, the bread crumbs were not hard to follow.
To be perfectly accurate, Virginia is technically one of the 30 states that does have an anti-SLAPP statute, but it is extremely limited, basically applying only to “statements made . . . at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body.” And even those statements are not protected if malice can be shown.
Virginia is attempting to limit this forum shopping by creating a real anti-SLAPP statute along the lines of California’s statute. So far, the efforts have been unsuccessful. Maybe the Legislators like having celebrities come to town for their trials.
Bottom line. If you need to avoid California’s anti-SLAPP statute, and you have some jurisdictional basis to bring your action in a state without an anti-SLAPP statute, this is an option open to you. At least until all 50 states have such statutes.
Judges Don’t Understand SLAPP Law
Ready for the most self-aggrandizing article you’ve eve read? What will surprise you even more is that it arises from a motion and appeal that I lost.
Here’s the self-aggrandizing part up front. I think my understanding of SLAPP law now surpasses the ability of judges and justices to understand. Or at least my ability to make them understand. Like Sheldon Cooper trying to explain string theory to Penny. At least that’s my argument and I’m going to stick to it. As the following story indicates (at least to me, being a legend in my own mind), I just see things others cannot.
Here’s the greatly altered fact pattern (to protect the innocent).
My client accused someone of being a bank robber on social media, and notified the police that said that person had robbed a bank. That party took umbrage with being called a bank robber, and sued for defamation. Part of the defamation he alleged was the report to the police.
Now some quick background to set the scene.
Many years ago I was retained to handle an appeal from a defamation case. The defendant had been hit with a one million dollar judgment arising from three alleged wrongs. He had (1) said bad thing about the plaintiff at an HOA meeting, (2) he had said bad things about the plaintiff to the police, and (3) he had allegedly crank called the plaintiff on a number of occasions.
As you probably immediately recognized, items 1 and 2 are clearly protected activities. Speech at an HOA meeting is protected speech under Civil Code section 425.16, as is a call to the police. These allegations should have been stricken, leaving only the crank phone calls.
But it did not play out that way. The attorneys had filed an anti-SLAPP motion, but this was before Beral v. Schnitt, and the judge ruled that the case could go forward since some of the allegations were not protected. He noted, however, that he was going to limit the case to just the prank phone calls, since the other allegations arose from protected speech.
Unfortunately, as is often the case, when it came time for trial, that judge was otherwise occupied and the case was reassigned to another judge. With no understanding of defamation law and privileges, the new judge didn’t limit the case to just the prank calls. The attorneys could not make the judge understand the applicable law, and he let all the issues go to the jury. He denied the motions in limine, and he even denied the proffered jury instructions that would have explained the concept of privilege.
Thus, the jury was allowed to award damages for the statements made at the HOA meeting, the statements made to the police, and the crank phone calls. If limited to the crank phone calls, this likely would have been a $1,000 judgment, but the jury was inflamed by the protected speech, and gave the huge award on that basis.
The lesson I learned from handling the appeal on this case is that you must strike these allegations by way of an anti-SLAPP motion, because they may escape every other challenge, with disastrous results.
Back to the alleged bank-robber. Read the rest of this entry »
SLAPP027 – When a Motion to Dismiss is a Better Strategy than an Anti-SLAPP Motion
President Trump is never short on controversy, and said controversy leads to some interesting cases. In Episode 27 of the California SLAPP Law Podcast, we will discuss two Trump cases — one First Amendment and one anti-SLAPP — arising from the words and tweets of our sneerless leader. We’ll also discuss when a motion to dismiss can be a better option than an anti-SLAPP motion.
The first case is Nwanguma v. Donald Trump, arising from his comments at a political rally before he was elected. When hecklers tried to shout him down, he said “get ’em out of here.” The crowd heeded his words and bodily removed the protesters, who then sued for battery and incitement. They claimed that by saying “get ’em out of here,” Trump incited the crowd to riot. Trump moved to dismiss, arguing that his words were mere hyperbole. How did the court rule? Listen to Episode 27 and find out!
Next comes the infamous case of Stormy Daniels v. Donald Trump. Daniels sued Trump in two different forums for two different claims. In one, she is simply trying to get out the contract whereby she was paid for her silence. In the other, she had stated during a press conference that she had been threatened by a man who told her to be quiet about sleeping with Trump, even showing an artist’s rendering of the allege suspect from many years prior. Trump felt compelled to tweet that the story was a total “con job.”
Her attorney, Michael Avenati, who would have known better if he listened to the California SLAPP Law Podcast, decided to sue for defamation for Trump’s usage of the phrase “con job.” As any regular listener would know, “con job” is just too imprecise to support a defamation claim. It is not verifiably false, and without a verifiably false statement, there can be no defamation. Trump brought an anti-SLAPP motion, which was granted.
Not a good week for Avenati. In the same week that the court granted Trump’s anti-SLAPP motion, finding that Daniels would therefore be liable for all of Trump’s attorney fees, Avenati was found personally liable for a multi million dollar judgment by a former associate at his firm, and was given an eviction notice from his law offices for failure to pay rent.
And stay around for the after show, where I discuss the happenings with Bell v. Feibush, some precedent I created six years ago.
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Posted in anti-SLAPP motions, Case Results, Podcasts | Tags: Bell v. Feibush, Igal Feibush | No Comments »
Daniels’ Defamation Action Against Trump was Doomed from the Start
I have frequently warned about the path defamation claims can take, and it was illustrated once more by the kerfuffle between Donald Trump and Stormy Daniels.
Here is the pattern.
Way outside every controlling statute of limitations, a woman states she was assaulted by a man, and the man responds by going on social media or stating to the press that the assault never occurred. The woman then sues for defamation, claiming that by denying the assault, the man is calling her a liar. As a variation, the accused man sometimes comes right out and says she is lying.
It’s a tough situation for the accused. If he fails to deny the charge, then it will be assumed that it must be true, but if he does deny it, then he buys himself a defamation action. He was safe from legal action, but his words started a whole new statute of limitations on the defamation claim. This is precisely what happen when Bill Cosby denied raping various women, which lead to very different conclusions.
Defamation claims against Bill Cosby.
Posted in Anti-SLAPP motion, Case Results | Tags: Defamation, Donald Trump, Michael Avenatti, Stormy Daniels | 1 Comment »
SLAPP026 – Don’t Sue for Defamation Unless the Statements Really are False
Canada, eh? Those hosers in Ontario didn’t get around to passing an anti-SLAPP statute until 2015, and they’re still trying to figure it out.
In this episode of the California SLAPP Law Podcast, we travel to the great white north to examine an anti-SLAPP motion that was denied by the trial court, but granted by the appellate court. It beautifully illustrates the most fundamental point of a defamation case that oh so many attorneys still don’t understand. A statement is not defamatory unless it is false, no matter what the quantum of harm it may cause.
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