Anti-SLAPP motion

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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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.

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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 »

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Stormy Daniels’ Action Against Trump Goes Down in Flames

Stormy Daniels Complaint on Fire
As I discussed back in October, 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 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. 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 have 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 »

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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.

Read the rest of this entry »

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SLAPP025 – Anti-SLAPP Motion Defeats Gone With the Wind Actress

de Havilland v. FX Networks, LLC

If you sell t-shirts bearing the images of the Three Stooges, can you be sued for violating their right of publicity?

And if you create and broadcast an 8-part docudrama centering on Bette Davis and Joan Crawford, can Olivia de Havilland sue you for including the details of HER life in that story?

Well, the just decided case of de Havilland v. FX Networks, LLC answers both those questions.

I enjoyed this anti-SLAPP case because it beautifully illustrates how some judges just don’t understand precedent.

Olivia de Havilland, who is now 102 years old, did not like the way she was protrayed in the FX docudrama, “Feud: Bette and Joan,” centering on deceased actresses Bette Davis and Joan Crawford.

In case you don’t recognize the name, de Havilland portrayed Melanie in Gone With the Wind. She was the one Scarlett was always jealous of, as I recall.

She sued FX, claiming the portrayal of her in the show amounted to the unauthorized use of her name and likeness for commercial gain.

FX responded with an anti-SLAPP motion.

The trial court, Judge Holly Kendig presiding, denied the anti-SLAPP motion, relying in large part on a California Supreme Court decision called Comedy III Productions v. Gary Saderup, Inc.

FX appealed. Listen to Episode 25 to see how it all turned out.

What is the current status of the requirement that an anti-SLAPP motion be heard within 30 days of filing?

Previously, Fair Political Practices Commission v. American Civil Right Coalition, Inc. and Decker v. U.D. Registry had held that the 30-day requirement was jurisdictional. Now Karnazes v. Ares holds that it is the clerk’s burden to set the hearing within 30 days. But does that mean counsel is safe if a hearing is outside the 30-day deadline. Listen to find out.

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The Morris Plan – How to Force Yelp (and other sites) to Remove Defamatory Reviews

Removing defamatory reviews.

What you are about to read is a completely untested but viable approach to forcing Yelp to remove a false and defamatory review, based on recent legal developments. It is on the bleeding edge of the law, and as that name implies, it may not be without pain as it works its ways through the courts. No nasty emails if it doesn’t work for you.

This approach arises from Yelp’s irrational need to create bad precedent, as evidenced by the Yelp v. McMillan case, and most recently the Supreme Court matter of Hassell v. Bird, wherein Yelp argued that the content posted by third parties is its content.

To those unfamiliar, in Hassell v. Bird the defendant Bird defamed a law firm – the Hassell Law Group – in a Yelp review. Hassell sued Bird, and the court found that the Yelp “review” by Bird was false and defamatory, and ordered Bird to take it down. But then comes a twist unique to this case. Knowing that Bird would be unlikely to comply with the order, the court also ordered Yelp to remove the review, even though Yelp had never been a party to the action.

It is not uncommon for court orders to include persons or entities who were not parties to the action, if some action by those third parties is necessary to effectuate the order. In a typical renter eviction action, for example, only the known tenant will be named in the action, but the eviction order will apply to anyone occupying the residence, in case the tenant allowed others to move in, subleased the property, etc. Read the rest of this entry »

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SLAPP024 – Supreme Court Clarifies Whether Amended Complaint Resets 60-Day Clock for Anti-SLAPP Motion

In Episode 24 of the California SLAPP Law Podcast, we tackle two important anti-SLAPP issues.

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism

The conventional wisdom until now, as expressed in cases such as Yu v. Signet Bank/Virginia, was that an amended complaint creates an new 60-day period to file an anti-SLAPP motion. Then along came the Court of Appeal decision of Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism. In that case, the plaintiff originally sued on two causes of action, to which the defendant demurrered. When the plaintiff filed a third amended complaint, which added two new causes of action, the defendant finally filed an anti-SLAPP motion, challenging all the claims, including the two that had been there all along. The trial court refused to consider the challenge to the previously existing claims, stating they were past the 60 days since they could have been previously challenged. The Supreme Court agreed.

This is a quantum shift in the prior case law, but will the consequences be as severe as the holding seems to indicate? Listen to Episode 24 to find out, and for the best strategies for dealing with the Newport Harbor reasoning.

Dowling v. Zimmerman

Certainly not a new case, but we use it to discuss whether an appeal stays collection of costs and attorney fees following a successful anti-SLAPP motion.

 

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You CAN Join an Anti-SLAPP Motion Brought by Another Party

I remember sitting in court – Judge Banks’ court in Orange County to be specific – and he called a motion for summary judgment that was on calendar, noting that another party had “joined” the motion. I see this all the time. One party files a demurrer, or a motion for summary judgment, or whatever, and an attorney representing a different party says, “hey, that’s a great idea,” and files a “notice of joinder” on the motion. You may have engaged in the behavior yourself.

But as Judge Banks explained to the unfortunate attorney, it doesn’t work that way. As he put it, “when you ‘join’ in a motion, it means only that you are cheering from the sideline, ‘go team go.’” The court has no power to bestow the requested relief on your client.

The reason should be self-evident. The evidence that is offered in support of a motion for summary judgment for one client may have no applicability to another. The missing elements that would justify sustaining a demurrer as to one party may not apply to another. If “joinder” were permitted, then the non-movant would be placed in a terrible quandary. He, she, or it would have to speculate on why the same arguments would apply to the joining party, and try to oppose them.

But with all that said, an anti-SLAPP motion presents a different analysis. Because of the two prong analysis, a defendant can ride on the coattails of another moving defendant. If the movant successfully argues that the conduct falls under the anti-SLAPP statute, the burden then shifts to the plaintiff to show a likelihood of success. The second prong can then be decided without any evidence from the defendant who joined the motion.

In the case of a motion for summary judgment, for example, the moving defendant must present evidence sufficient to establish a complete defense to the targeted claims, or to show that the plaintiff will be unable to prove an essential element. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851. Simply joining the motion of another party does not satisfy this requirement.

But on a special motion to strike, the moving defendant need only demonstrate that the action arises out of protected First Amendment activity. Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365. In Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-661, the Court concluded that so long as one defendant met that burden, others could join.

But don’t take this too far. Obviously, if the complaint alleges different types of wrongdoing by the defendants, the court may not be able to rule as to the joining defendant. Complicating matters further, there were problems with the plaintiff’s opposition in Barak.

Nonetheless, if you find yourself in a situation where one of the other defendants has filed an anti-SLAPP motion, take a hard look to determine if it would make sense to join in the motion.

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Mandated Arbitration Does Not Create a “Protected Activity”


A decision that involves both beer and anti-SLAPP law is right up my alley, so I had to bring you the details of Mission Beverage Company v. Pabst Brewing Company, LLC out of the Second District.

The importance of this case is the lesson it teaches in focusing on whether the conduct in question is indeed “protected activity” such that it satisfies the first prong of the anti-SLAPP analysis. As I have stated here before, the scope of the anti-SLAPP statute has grown and grown, but attorneys must not give short shrift to the first prong.

I. Facts Read the rest of this entry »

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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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.