Anti-SLAPP motion

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 »

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 »

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.

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 »

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.

 

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.

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 »

SLAPP021 – Anti-SLAPP Motions Against Mixed Causes of Action

California-SLAPP-Law-Cover-300x300 (1)

We discuss the very important case of Baral v. Schnitt, in which the California Supreme Court finally dealt with the split of authorities regarding how to deal with complaints with mixed causes of action; those that contain allegations of both protected and unprotected activities. This is probably the most important anti-SLAPP decision of the decade.

We also take a quick look at Hassell v. Bird, in which the Court of Appeal held that Yelp can be ordered to take down a false and defamatory post, even if it was not a party to the action.

Finally, I tell the tale of a very entertaining victory we had in Norwalk Superior Court, in front of a finger-wagging judge.

Anti-SLAPP Motions in Federal Court – Some Judges Still Complaining

No Whiners Annoying Complainers Irritating Problem Customer
On August 3, 2016, the Ninth Circuit issued an opinion in the case Travelers Casualty Insurance Company of America v. Robert Hirsh.

The Court affirmed the district court’s denial of Robert Hirsh’s anti-SLAPP motion (Cal. Civ. Proc. Code § 425.16) to strike the second amended complaint filed by Travelers Casualty Insurance Company of America. Hirsh had alleged that Travelers’ claims arose out of his representation of Travelers’ insured, Visemer De Gelt, as Cumis counsel; and his activity was therefore protected under the anti-SLAPP statute.

The Ninth Circuit held that because Travelers’ causes of action were not based on an act in furtherance of Hirsh’s right of petition or free speech, they did not “arise from” protected activity, and thus did not satisfy the first prong of the anti-SLAPP analysis. The Court also held that Travelers established a probability of prevailing on the merits sufficient to survive a motion to strike. The Court further held that California’s litigation privilege, Cal. Civ. Code § 47(b), did not bar the suit because the causes of action arose from Hirsh’s post-settlement conduct, not his communications with De Gelt in settling a prior lawsuit.

Should we allow anti-SLAPP motions in Federal Court?

But like a number of appellate judges in the Ninth Circuit, Judge Kozinski and Judge Gould, although they concurred in the opinion, could not pass up the opportunity to complain about how anti-SLAPP motions in federal court were making them work too hard. Judge Kozinski decried that the existing case law is wrong, and he would urge the court to follow the D.C. Circuit’s holding in Abbas v. Foreign Policy Grp., LLC, which held that anti-SLAPP motions do not belong in federal court because they directly conflict with the Federal Rules of Civil Procedure. At the very least, Judge Kozinski urged the court to reconsider the holding in Batzel v. Smith, which allows defendants who lose anti-SLAPP motions to bring an immediate interlocutory appeal.

With all due respect, the reasoning of Judge Kozinski does not withstand scrutiny, as will be shown hereinbelow. What follows is Judge Kozinski’s concurring opinion, with my response to him in red on each of his points. Read the rest of this entry »

‘American Hustle’ Producers Can’t Nuke Defamation Lawsuit – Hollywood Reporter

Paul Brodeur, a science writer who claims he was defamed by something Jennifer Lawrence said in David O. Russell’s 2013 film American Hustle, has survived an attempt to knock out his $1 million lawsuit on First Amendment grounds.

Source: www.hollywoodreporter.com

american hustle cast

This is such an entertaining and ridiculous lawsuit.

In the movie American Hustle, Jennifer Lawrence plays a character named Rosalyn. The movie is set in the 70s, when microwave ovens were still relatively new, and Rosalyn makes the statement that microwaves cook the nutrition out of food. When another character questions that claim, she holds up a magazine and responds, “I read it in an article by Paul Brodeur.”

Paul Brodeur is a real person, and claims that the fictional statement from a fictional character hurts his reputation. During the 70s, Brodeur wrote about the dangers of microwave ovens, but he never stated that they take the nutrition out of food, and he therefore claims that the idea that he would have written this (fictional) article stating that food loses its nutrition when cooked in a microwave is akin to having Carl Sagan say that the sun revolves around the earth.

Brodeur should have been flattered that anyone remembered him, and laughed at the joke while enjoying his 15 minutes of renewed fame. But this is America, so he sued for a million dollars, claiming the statement was defamatory. The movie makers responded with an anti-SLAPP motion.

At the time, I expressed concerns about whether the judge would be convinced that the facts presented satisfied the first prong of the anti-SLAPP analysis. Judges who can’t be made to understand anti-SLAPP law will often be too narrow minded as to what constitute public interest. My concerns were warranted, because the trial judge denied the motion under the first prong.

[UPDATE (June 6, 2016):] Cases such as this continue to show the importance of the automatic right of appeal, even from denial of an anti-SLAPP motion.

Paul Brodeur’s ridiculous lawsuit survived the anti-SLAPP motion, which would have doomed the defendant (Atlas Entertainment, Inc.) to litigate issues through trial, were it not for the automatic right of appeal. That ability to demand a second look at the applicability of the anti-SLAPP statute resulted in the dismissal of this waste of court resources.

As it had to, the Court of Appeal held:

American Hustle is, after all, a farce. The stage was set at the beginning of the film. (‘Some of this actually happened,’ is the line that appears on screen to start things off, and it sets the tone perfectly.”) The character who utters the allegedly defamatory statement is portrayed throughout the movie as ‘slightly unhinged’ and ‘a font of misinformation,’ and Irving and Rosalyn both refer to the microwave oven as the ‘science oven.’ We doubt any audience member would perceive any of Rosalyn’s dialogue as assertions of objective fact.

The trial court had refused to grant the anti-SLAPP motion, finding no matter of public interest in the film. The Court of Appeal dismissed this position almost out of hand.

[I]t is likewise beyond dispute that the anti-SLAPP statute, including the scope of the term “public interest,” is to be construed broadly. (Nygard, supra, 159 Cal.App.4th at pp. 1039-1042 [discussing cases and legislative history of 1997 amendment adding the directive to construe the statute broadly].) Nygard concludes: “Taken together, these cases and the legislative history that discusses them suggest that ‘an issue of public interest’ within the meaning of section 425.16, subdivision (e)(3) is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute — it is enough that it is one in which the public takes an interest.

The Court of Appeal found myriad bases of public interest, from the fact that the film was so popular, to the interest the public has in actors and casting, to the interest in the Abscam investigation in particular (upon which the movie is based) and the 1970’s in general.

The second important takeaway from this case is procedural; namely, don’t get so caught up in the minutia that you lose sight of the fundamental points.

Brodeur was all in a tizzy because what he wrote about in the 1970s was that microwave ovens were unsafe due to the radiation they put out. He never claimed that food cooked in a microwave was unsafe, and certainly never claimed that they take the nutrition out of food. The entire point of his case was that he was defamed by the statement of this fictional character, claiming he had written that microwaves take the nutrition out of food. In his unverified complaint, he alleged he “has never written an article or ever declared in any way that a microwave oven ‘takes all of the nutrition out of food.’”

But the allegations of the complaint are not evidence. Thus, in opposition to the anti-SLAPP motion, the most important evidence to present (at least in the context of the ridiculous claim being made) was that Brodeur had never stated that a microwave takes all of the nutrition out of food. Incredibly, according to the Court of Appeal, Brodeur’s attorneys failed to offer evidence to establish that fact. It could have been established by simply providing a declaration from Brodeur stating exactly what he alleged in his complaint. By failing to do so, Brodeur failed to make a prima facie showing of falsity.

In a defamation action, the specter of an anti-SLAPP motion and the concomitant attorney fees hangs over the complaint like the Sword of Damocles. Far too many attorneys turn a blind eye to this danger, and pursue a defamation claim under the ill-defined idea that the suit will bring a quick settlement, or that they will somehow survive any challenges.

I can’t speak to the mindset of counsel in this case. But someone sat down at a keyboard, and actually typed allegations asserting that the words said in a fictional movie by a fictional character — who was specifically portrayed as not knowing what she was talking about — were actionable. At some point, that should have raised red flags.

 

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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