Anti-SLAPP motion

You Can Now Be Sued for Calling the Police

Angry Plaintiff in Jail

California recently turned defamation law on its ear, as regards calling the police. Let me set the scene with a hypothetical that will demonstrate what California has done.

You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guests’ cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.

Bob is quite a jerk, and is already on probation for a prior criminal offense. If he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.

He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”

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SLAPP032 – The 3 Most-Often Miscited Anti-SLAPP Cases

California SLAPP Law

We begin Episode 32 with the discussion of how Morris & Stone just defeated an anti-SLAPP motion. I reveal the common (and fatal) mistake made by defense counsel when they pursue anti-SLAPP motions.

And on the topic of mistakes, based on my prior article, we turn to the three cases that counsel almost always cite improperly when defending against an anti-SLAPP motion. Listen and find out what these three cases really stand for:

Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858.

Weinberg v. Feisel (2003) 110 Cal.App.4th 1122.

Flatley v. Mauro (2006) 39 Cal.4th 299.

Finally, in the after-show, I reveal a successful strategy to obtain a trial continuance, even when the judge has already said no.

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SLAPP030 – Is it Defamatory to Call Someone a “Crook?”

California SLAPP Law

Fun, fun, fun in the California sun at Morris & Stone.

In just the past couple of weeks, we (1) Obtained a 3.9 million dollar defamation verdict for one client; (2) Got another client out of a 7 million dollar case on a motion for summary judgment, and (3) Were awarded our fees following a successful anti-SLAPP motion, even though the motion did not dispose of every cause of action.

In Episode 30 of the California SLAPP Law Podcase, we discuss the facts of the aforementioned anti-SLAPP motion, and the motion for attorney fees that followed. This particular anti-SLAPP motion presented some really interesting issues, as did the motion for attorney fees.

As to the anti-SLAPP motion, we examine whether it can ever be defamatory to call someone a crook. It might seem so, but how exactly does one define a crook in order to offer evidence that one is not a crook?

As to the motion for attorney fees, how does the court handle such a request when the underlying anti-SLAPP motion was only partially successful?

Along the way, we are again reminded why it is so crucial to know the procedural rules governing any motion you bring.

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FilmOn.com v. DoubleVerify – Supreme Court Further Defines “Issue of Public Interest”

FilmOn.com v. DoubleVerify
Time to discuss the very important opinion by the California Supreme Court in the case of FilmOn.com v. DoubleVerify. To fully understand this opinion and the reasoning behind it, it is necessary to read the entire opinion, because it beautifully builds from the roots of the anti-SLAPP statute all the way to the ultimate conclusion. But in case you don’t have that kind of time, I’ll summarize it up front, and then offer a guided tour through the opinion.

The Facts and Legal Holdings of FilmOn.com v. DoubleVerify.

FilmOn.com Inc. (FilmOn) is a for-profit business entity that distributes web-based entertainment programming. In this case, FilmOn sued DoubleVerify Inc. (DoubleVerify), another for-profit business entity that offers online tracking, verification and “brand safety” services to Internet advertisers. In other words, DoubleVerify offers its conclusions about sites and content, so advertisers can be sure their ads do not end up in places they might consider to be inappropriate. FilmOn did not like what DoubleVerify had reported to its clients, and sued DoubleVerify for trade libel, tortious interference with contract, tortious interference with prospective economic advantage, and violation of California’s unfair competition law.

DoubleVerify responded by filing an anti-SLAPP motion to strike, which was granted by the Los Angeles County Superior Court, Judge Terry Green presiding. The Court of Appeal agreed with Judge Green’s conclusion that DoubleVerify’s reports “concerned issues of interest to the public” because “the public has a demonstrable interest in knowing what content is available on the Internet, especially with respect to adult content and the illegal distribution of copyrighted materials.” To support its conclusion, the court analogized DoubleVerify’s confidential reports to ratings by the Motion Picture Association of America, writing, “the Motion Picture Association of America (MPAA) engages in conduct quite similar to DoubleVerify’s activities by rating movies concerning their level of adult content, and the MPAA does so, because the public cares about the issue.”

It is always a hail Mary to appeal to the California Supreme Court, but surprisingly the Court elected to take up this matter, “to decide whether the commercial nature of a defendant’s speech is relevant in determining whether that speech merits protection under the catchall provision. To resolve this question, we also clarify how the context of a statement more broadly – including the identity of the speaker, the audience, and the purpose of the speech – informs the same analysis.”

In a unanimous decision, the Supremes reversed the Court of Appeal, and sent the case back to Judge Green for an order denying the anti-SLAPP motion. In essence, as I have repeated here a hundred times, the Court found that context is everything. It found that determining whether the ratings issued by DoubleVerify are a matter of public interest is not viewed in a vacuum. Rather, even if it is concluded that the speech is a matter of public interest, that speech must be in furtherance of the speech on the topic.

It is by carefully observing this wedding of content and context that we can discern if conduct is “in furtherance of” free speech “in connection with” a public issue or issue of public interest. (§ 425.16, subd. (e)(4).) What this union of content and context lets us discern in this case is that DoubleVerify’s report does not qualify for protection under the catchall provision of the anti-SLAPP statute.

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Using a Defamation Action to Gather Evidence of the Defamation is a Risky Proposition

anti-SLAPP Trap

Watch for the anti-SLAPP trap.

People love to gossip, and they love to tell you that you are being gossiped about. But gossip is not evidence. It is a risky proposition to rely on gossip for a defamation action.

I receive calls from prospective clients who are absolutely confident that someone is defaming them. But do they have a witness to testify to what is being said? Can they offer an email as evidence? Perhaps a posting on social media? Well, no, but all I need to do is to file a complaint for them, and then we can start taking depositions to get to the heart of it.

That is a very dangerous course to chart.

In some rare circumstances, that might be viable, but watch for the ever present specter of an anti-SLAPP motion. A call today demonstrated the risks once again. The call was from an attorney, who thought he had been snared by the anti-SLAPP trap, and was seeking my guidance on how he might extricate himself.

(Changing the facts sufficiently to protect privacy), the attorney represents an employee in a wrongful termination action. The client was of course upset about being terminated, claiming that it resulted from him reporting illegal conduct, but he was equally upset about the lies the employer had supposedly told to the EDD and others, about the supposed malfeasance that had led to his termination. The client assumes that the lies were not confined to the EDD, based on some comments by a third party after his termination. The attorney knew enough about anti-SLAPP law that he steered clear of suing for the statements made to the EDD, but the defamation cause of action basically mirrored what the employer had said to the EDD.

For example, let’s say that the employer informed the EDD that the employee was fired after being seen double dipping his chips in the onion dip at a company luncheon; an act we would all agree is proper grounds for termination. Later, he goes into a bar, and when he tries to take the stool next to some other patron, that person says, “get away from me you disgusting double-dipper!” So the employee knows that the employer must be spreading the lie beyond the EDD, since why else would the person have made that statement? Based on this set of circumstances, the attorney alleged that the employer is defaming the terminated employee to third parties.

But now the employer has filed an anti-SLAPP motion, claiming that the employer made that statement only to the EDD, so the employee must be suing for statements made to the EDD, which is protected speech under the anti-SLAPP statute. Now, faced with the anti-SLAPP motion, what evidence can the attorney offer to prove the statement was made to a third party? All he has is a random statement from some unidentified person at a bar. You just can’t bet your client’s money on the assumption that you will be able to uncover a witness to support your defamation claim, especially since an anti-SLAPP motion freezes discovery (subject to leave by the court).

There might still be hope.

The case presents an interesting issue. The employer will clearly prevail on the second prong of the anti-SLAPP analysis, since the employer will simply provide a declaration stating no one within the company made the statement to any third party other than the EDD, and the plaintiff will have no evidence to counter it. But I told the attorney there is hope.

The complaint does not say that Plaintiff is suing for the statements to the EDD. Defendant is attempting to rewrite the allegations to match its recitation of the facts. Plaintiff’s action will not carry the day absent any evidence of the statements to third parties, but he might survive the anti-SLAPP motion by explaining that the allegations as stated – not as defendant chooses to interpret them – do not bring the complaint under the anti-SLAPP statute.

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A Huge Anti-SLAPP Victory by Morris & Stone in the Court of Appeal

Noe v J Niley Dorit

J. Niley Dorit v. Noe

At Morris & Stone, we sometimes take a case with an eye toward the greater legal implications. Prevailing for the client is of course our number one goal, but occasionally it is clear that the case could have legal implications beyond the dispute between the parties. This was such a case. It began as a, “well, that can’t be right” case, and morphed into a precedent that will control a small part of anti-SLAPP law until the universe reaches heat death.

Yet, it all started out so simply . . .

In January 2018, our client (we’ll call him Jack because that’s his name) hired an attorney named J. Niley Dorit to evaluate the medical records of Jack’s deceased mother for a potential medical malpractice suit against her doctors. The parties signed a fee agreement in which Jack agreed to pay Dorit a $10,000 non-refundable retainer fee. This sum was intended to cover Dorit’s time spent evaluating the claim, as well as “the costs of additional medical records and/or expert medical review if indicated.” The agreement contained an arbitration clause, which stated, “Should there arise any disagreement as to the amount of attorneys fees and/or costs, Client agrees to enter into binding arbitration of such issue or dispute before the Bar Association of San Francisco (BASF).”

On March 19, 2018, Dorit called Jack on the phone to present his analysis of the records. According to Dorit, Jack cut him off soon after Dorit began his presentation. Jack asked Dorit simply to provide his ultimate conclusion about the potential malpractice claim. Dorit said he did not think a malpractice claim was viable.

Jack was frustrated, feeling that Dorit had not provided $10,000 worth of services, especially given that he apparently had not consulted any medical experts. Conversely, Dorit felt that his experience with medical malpractice cases qualified him to review the file sufficiently to determine if a malpractice case was warranted. The medical file was huge, so Dorit felt he had earned his fee in examining the file.

The Mandatory Fee Arbitration Act

This is the sort of situation envisioned when the MFAA was was created. MFAA stands for Mandatory Fee Arbitration Act. Under California law, a client can challenge the fees charged by their attorney using this State Bar regulated process. It is designed to be very informal, and the arbitrator is not even required to follow the rules of evidence. It is a quick, low-cost way to have a fee dispute decided. Often the attorney fees involved in a fee dispute are relatively nominal, and it would never make economic sense to have to sue in court, let alone hire yet another attorney to do so. Rather than to force clients to stew in their own juices over the anger of having no recourse, the MFAA provides a quick review of the fees paid. And contrary to popular belief that the process is rigged in favor of attorneys, the MFAA arbitrators are very strict in determining if the attorney has observed all legal requirements.

Thus, a perfect process existed for Jack and Dorit to have the dispute decided, without going to court or even squaring off at ten paces. They submitted the fee dispute to MFAA arbitration. They presented their evidence to the Arbitrator, and ultimately he found in favor of Dorit, and allowed him to keep the $10,000 fee, awarding Jack nothing. Jack even had to cover the filing fee.

There are a couple of important things to know about the MFAA process. By law, a client always has the option to submit any fee dispute to arbitration. Sometimes it is the attorney who wants to sue to recover unpaid fees, but the attorney cannot take the matter to court without first giving the client the option to submit the dispute to arbitration. At that point, the arbitration is non-binding, unless the client then agrees to make it binding. If it is non-binding, then either party is free to reject the award of the Arbitrator and proceed to court.

Additionally, since the arbitration is so informal, and does not follow the rules of evidence, nothing from the arbitration can be used in any subsequent court proceeding. For example, had this matter proceeded to trial, Dorit would not have been permitted to bring up the fact that he had won the arbitration, or to bring up any of the arbitration testimony. It’s simply as though it never happened. This is because it would be entirely unfair to have a situation where clients are encouraged to go to an informal arbitration without the benefit of legal counsel, but then allow the attorney to use the results of that hearing against the client in some other more formal forum, such as a trial.

OK; you now know everything you need to know about MFAA arbitrations. Back to our tale.

When we left our heroes, Dorit had won, and Jack was very unhappy with the result. But Jack has a code, and that code dictated that he had lost fair and square, and he would live with that result. Even though he would have been free to reject the conclusions of the Arbitrator, he did nothing and allowed the award to become final.

Dorit sues for Malicious Prosecution

But Dorit was not as accommodating. Dorit was upset that Jack had dared to question his entitlement to the $10,000 in fees, which he felt had been a malicious thing to do, so he sued Jack in San Francisco Superior Court for Malicious Prosecution. Read the rest of this entry »

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Discussions of a Doctor’s Competence Will Almost Always Fall Under the Anti-SLAPP Statute

anti-SLAPP peer review

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 »

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Shia LaBeouf – An Anti-SLAPP Legend in His Own Mind

Shia LeBouf anti-SLAPP legend

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 »

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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 »

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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 »

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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(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.