Anti-SLAPP motion
Sweetwater — How to Defeat an anti-SLAPP Motion with Inadmissible Evidence
An anti-SLAPP motion can be viewed as a somewhat one-sided mini-trial, where the plaintiff is required to show sufficient evidence to establish a likelihood of succeeding on their claims. It’s one-sided because the plaintiff’s evidence is “accepted as true,” and the defendant’s evidence is considered only to determine if it establishes an affirmative defense as a matter of law.
But therein lies the rub. The plaintiff must produce sufficient evidence to establish a probability of success, while at the same time being prevented from gathering that evidence due to the discovery stay the motion imposes. Perhaps more frustrating, the plaintiff may have the evidence, but the evidence is inadmissible due to issues that could be easily addressed with a little discovery. For example, a plaintiff was provided with a company email from and anonymous source that clearly defames him, but that email is inadmissible hearsay unless and until he conducts discovery to authenticate it. Should such a case be dismissed pursuant to an anti-SLAPP motion even though the supporting evidence exists, but is not yet admissible?
In the decision of Sweetwater Union High School District v. Gilbane Building Co., the California Supreme Court came up with a brilliant way to address this conundrum. Sweetwater clarifies that the inquiry is not whether the proffered materials are themselves admissible in their present form, but whether the facts asserted are reasonably capable of being admitted at trial. Read the rest of this entry »
Think Hard Before Filing a Malicious Prosecution Action
I of course take great joy in extricating my client from a lawsuit with an anti-SLAPP motion. The client was stressed over being sued, facing over a year of litigatio, and the possibility of having to pay a judgment. Then I swoop in and in relatively short order and with relatively modest fees, make all the problems go away. I even get their attorney fees paid by the Plaintiff.
But I also feel a little pain for the plaintiffs, especially when they are representing themselves. If an attorney files a SLAPP on behalf of their client, then shame on the attorney. They should know better. But what does Joe Citizen know about anti-SLAPP law? He feels he was done wrong, sues for redress, and ends up unwittingly filing a SLAPP.
The most fertile ground for these self-inflicted wounds are lawsuits for Malicious Prosecution. Bill sues Joe for something, and Joe ends up paying a lot of money to an attorney to fight the lawsuit. But ultimately Joe wins, so he sues Bill for Malicious Prosecution in order to get back his attorney fees. A perfectly legitimate goal. If he hits a home run, he might even get punitive damages. That’ll teach Bill.
But what Joe does not know is that EVERY action for Malicious Prosecution satisfies the first prong of the anti-SLAPP analysis. The anti-SLAPP statute, Code of Civil Procedure 425.16, subpart (e), protects:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.
Joe is suing Bill because Bill sued Joe. He is suing for a written statement (the complaint) made in a judicial proceeding. His Malicious Prosecution action therefore automatically satisfies the first prong of the anti-SLAPP analysis, namely, that it falls under the anti-SLAPP statute.
But we still have the second prong. Even though the first prong is satisfied, Joe can defeat the anti-SLAPP motion if he can present sufficient evidence to show that his Malicious Prosecution action can succeed. Read the rest of this entry »
Posted in Anti-SLAPP motion, Case Results | Tags: Advice of Counsel defense, Interim Adverse Judgment Rule | No Comments »
Watch Out for this Fee Motion Timing Trap
Wow. I was in court this morning on a demurrer (which I won, naturellement), but the court’s ruling on an anti-SLAPP ruling in the same case hit me vicariously like a 100 mile an hour fast ball to my nether region. As the defense attorney painfully learned, every anti-SLAPP motion is a potential procedural minefield, and the hidden mines only increase in number when an attorney decides to try an untested procedure.
The defamation case in question involves three defendants. I represent Defendants 1 and 2, a husband and wife, and the third defendant (Defendant 3) is represented by another firm.
The complaint is ridiculous, but there was no basis upon which to bring an anti-SLAPP motion as to my clients. There was a strong basis, however, as to Defendant 3. Counsel for Defendant 3 wisely filed an anti-SLAPP motion, and the plaintiffs also quite wisely read the writing on the wall, and dismissed the action as to that Defendant.
So we have a situation that often arises with anti-SLAPP motions. The complaint is dismissed before the motion is decided. But case law is perfectly clear that even though the complaint is dismissed, the defendant is still entitled to attorney fees for the motion IF the court decides the complaint was indeed a SLAPP. 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. 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 »
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 »
Anti-SLAPP Attorney Fees and the “Spectrum of Success”
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
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
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
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.
One 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 »
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