Anti-SLAPP motion
‘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
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.
When Considering an Anti-SLAPP Motion, Focus on the Gravamen of the Complaint
I am the anti-SLAPP guy, and I’d be the last to criticize creative applications of the anti-SLAPP statute. But sometimes it is as though the attorney bringing an anti-SLAPP motion only read the Cliff Notes on the process. He knows some of the buzz words, such as “public interest” and “protected speech”, but lacks the big picture. When considering an anti-SLAPP motion, you must consider the true gravamen of the complaint.
Case in point is the recent Court of Appeal opinion in Rand Resources, LLC v. City of Carson (Los Angeles Superior Court Case No. B264493), arising from the efforts to build a football stadium in the City of Carson. The ruling of the Court of Appeal, published on May 31, 2016, can be found here.
Carson wanted to build a stadium and entertainment complex, and was hoping to woo the NFL to relocate a team there. Carson hired a lobbyist, of sorts, Richard Rand, giving him an exclusive arrangement to negotiate with the NFL.
Things between Rand and the city got off to a rocky start, leading Rand to successfully sue Carson for civil rights violations, alleging that the Mayor had demanded a bribe. The city and Rand both appealed, with the city claiming it had never happened, and Rand claiming he should get more in damages.
The parties eventually settled, but Carson did not honor Rand’s exclusivity arrangement. Rand sued again, this time for breach of contract and other claims.
“Well,” thought the city’s attorneys, “this whole football stadium thing is generating a ton of public interest, and anti-SLAPP motions can be brought where the situation is a matter of public interest, so let’s bring an anti-SLAPP motion.”
And that’s just what they did. The city challenged Rand’s action with an anti-SLAPP motion.
“Well,” thought the judge, “this whole football stadium thing is generating a ton of public interest, and anti-SLAPP motions can be brought where the situation is a matter of public interest, so I guess I should grant the anti-SLAPP motion.”
And that’s just what he did. Apparently having read the same Cliff Notes, the judge granted the anti-SLAPP motion. Rand appealed. Read the rest of this entry »
SLAPP019 – Five Best Published Anti-SLAPP Decisions (so far) in 2016
On Episode 19 of the California SLAPP Law Podcast, we go through my five favorite reported anti-SLAPP decisions from the first half of 2016.
But first we begin with a cautionary tale of an attorney who is being sued for malpractice for failing to have me review his complaint before it was filed! (OK, there’s a back story here, so be sure to listen to this episode to find out what I’m talking about.)
Then, we turn to the five best published anti-SLAPP decisions from the first half of 2016. The bold cases are the top five; the non-bolded are other cases I discuss as well.
Lanz v. Goldstone (2015) 243 Cal.App.4th 441
Another cautionary tale, this time of an attorney who followed the old adage, “the best defense is a good offense.” He tried to intimidate an attorney from seeking his legal fees, and bought himself a malicious prosecution action in the process. You’ll learn a lot about malicious prosecution actions and under what circumstances they can survive an anti-SLAPP motion.
Bertero v. National General Corp. (1974) 13 Cal.3d 43
Speaking of malicious prosecution actions, this is the seminal case.
Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135
“When the proceeding terminates other than on the merits, the court must examine the REASONS for termination to see if the disposition reflects the opinion of the court OR THE PROSECUTING PARTY that the action would not succeed.”
Karnazes v. Ares (2016) 244 Cal.App.4th 344
Speaking of over-pleading, our second case is Karnazes v. Ares, decided by the Second District in January of 2016. In this case, the plaintiff alleged 22 – count em – 22 causes of action against the defendants. Karnazes lost to an anti-SLAPP motion, but made some interesting arguments in opposition to that motion.
Sweetwater Union School District v. Gilbane Building Company (2016) 245 Cal.App.4th 19
Are political bribes protected by the anti-SLAPP statute? Listen to find out (and the answer will likely surprise you). And find out how you can support an anti-SLAPP motion with declarations without using declarations.
Crossroads Investors v. Federal National Mortgage Association (2016) 246 Cal.App.4th 529
It may look like litigation, and it may quack like litigation, but that doesn’t necessarily make it litigation for purposes of the litigation privilege and the first prong of the anti-SLAPP analysis.
JM Manufacturing v. Phillips & Cohen (2016) 247 Cal.App.4th 87
Yet one more action against an attorney; in this case an attorney who was so proud of his firm’s trial victory that he published a press release and bought the firm a defamation action. It was a split decision.
And finally, in the after show, I provide an appeal tip that might save you from some embarrassment.
Podcast: Play in new window | Embed
Subscribe: RSS
SLAPP017 – An Introduction to California SLAPP Law and Anti-SLAPP Motions
In Episode 17 of the California SLAPP Law Podcast, we go back to basics, with an introduction to the fundamental concepts behind California’s SLAPP Law and anti-SLAPP motions.
The good news is that although it took some 25 years for attorneys to begin recognizing the impact of California’s anti-SLAPP statutes on litigation in the state, they are now aware of the statute (sometimes painfully so). But it is clear that there are still some misconceptions about the law, including the fundamental terminology and procedures. Listen to this episode, and you’ll have a great understanding of what a SLAPP is, and what sort of activities fall under that anti-SLAPP statutes. Read the rest of this entry »
Podcast: Play in new window | Embed
Subscribe: RSS
Bill Cosby to Give New Deposition in Janice Dickinson’s Defamation Lawsuit
Bill Cosby will give a new deposition in the defamation lawsuit from Janice Dickinson over her allegations of sexual assault.
The former supermodel told Entertainment Tonight in November 2014 the comedian drugged her into unconsciousness and raped her. Cosby’s former attorney Martin Singer responded in a statement to the media calling Dickinson’s story “an outrageous defamatory lie” and “completely fabricated.”
In a hearing Monday, judge Debre K. Weintraub ordered Dickinson will depose Cosby and Singer by Nov. 25 on whether they knew if her allegations were true before denying them to the press. The testimony will follow Cosby’s recent deposition in Judy Huth’s lawsuit (which will be sealed until a Dec. 22 hearing in which the sides will argue if the testimony should be public).
Sourced from: www.hollywoodreporter.com
Recent developments in one of the actions against Bill Cosby illustrate the availability of limited discovery after an anti-SLAPP motion has been filed, and how defamation claims are sometimes used to resurrect actions that would otherwise be barred by the statute of limitation.
Joining the bandwagon of Cosby accusers (or perhaps she was the first) Janice Dickinson stated that she was drugged and raped by Cosby many years ago. Any action for that alleged assault would be far past the statute of limitations, but when Cosby denied the allegations, Dickinson was then free to sue for defamation, claiming that by denying that the rape had occurred, Cosby was in essence calling her a liar. (Or in this case, Cosby’s attorney actually did call her a liar.)
This is a common tactic, and puts an accused party in a precarious position. They can remain silent, in which case everyone will think and the press will report that they must be guilty since they are not denying the charges, or they can speak up and deny the charges, in which case they face a defamation action. Cosby chose to claim innocence, and the defamation suit followed.
Cosby responded with an anti-SLAPP motion, and that led to Dickinson’s request for leave to take Cosby’s deposition.
Celebrities enjoy a benefit that the rest of us plebes don’t, and that is that anything said about them is deemed to be a matter of public interest, triggering the anti-SLAPP statute. The downside is that said celebrities are deemed to be public figures, and given the inherent ability of celebrities to respond to criticism by simply calling a press conference, the law imposes an extra requirement on them to prove defamation. To successfully sue for defamation, they must show that the purportedly defamatory statements were made with malice. Since Dickinson is also a celebrity, she must therefore show that when Cosby called her a liar, he did so with malice.
One way to prove malice is to show that the person making the comment knew it wasn’t true. And thus we go full circle. Dickinson says Cosby raped her, Cosby says he didn’t, so Dickinson says that’s proof of malice because he raped her and knows it.
When an anti-SLAPP motion is filed, the plaintiff can request leave to conduct discovery, and here Dickinson requested leave to take Cosby’s deposition, to prove the malice. It’s a long shot, because the only way Cosby’s testimony would prove malice is if he admits that he raped Dickinson and knew he had raped her when he denied the claim. (Or, I suppose, Cosby could get befuddled and say he doesn’t remember.)
A Real-World Application of the Anti-SLAPP Motion Analysis
I was recently retained to consult on an anti-SLAPP motion in Orange County Superior Court, and the hearing on the motion was set for today. This particular judge is very good about issuing tentative rulings, but the rulings are often published on-line just shortly before the 1:30 hearing time. Knowing the tentative ruling is essential for oral argument since you know where the judge is going, and can address those specific points. (Truth be told, attorneys are seldom successful in getting a judge to reverse his or her tentative, but sometimes it can be done when the judge has a fundamental misunderstanding of the law that can be cleared up, or has misapplied the law to the facts.)
So my procedure is to open a window to the tentative rulings, which will be the rulings from the prior week, and periodically refresh the window until the current rulings appear. When our tentative ruling finally did pop up, it was just to inform us that the judge had decided to continue the hearing on our motion for a few weeks. This can happen when a judge’s docket doesn’t leave him or her enough time to work up and decide all the motions, or they just think more time is needed to decide a particularly challenging motion. I prefer to think that our legal analysis was so impressive that the judge just wanted more time to savor it, but who knows.
But while I was on the list of tentative rulings, I saw that the judge had decided an anti-SLAPP motion in another case. The ruling piqued my interest, so I pulled a copy of the cross-complaint to see what the case was all about. That will be the subject matter of this article.
I present the case summary and ruling here because they present a great example of how a judge analyzes an anti-SLAPP motion. I get numerous calls and emails from potential clients either wanting to prosecute an anti-SLAPP motion or needing to defend against one, where the facts they want to present are largely speculation. But to borrow an old cliché, an anti-SLAPP motion is where the rubber meets the road, and your allegations must be provable facts. The case also presents a very good example of just how expansive the litigation privilege can be. I will also take this opportunity to discuss the proof necessary for the particular causes of action that were pursued in this case. Read the rest of this entry »
Posted in Anti-SLAPP motion, Case Results | Tags: anti-SLAPP analysis, Judge James J. Di Cesare | No Comments »
Singer/actress Ronee Blakley must pay $200K to former lover
A judge ordered singer/actress Ronee Sue Blakley to pay more than $200,000 in attorneys’ fees to her former lover, who won dismissal earlier this year of a lawsuit alleging he based the character of an abusive mother on his ex-flame when penning the screenplay for the film “What Maisie Knew.”
Los Angeles Superior Court Judge Rafael Ongkeko granted $209,670 to writer Carroll Cartwright on June 5, the same day he heard arguments on the motion for attorneys’ fees brought by Cartwright’s attorneys. He also ordered Blakley to pay Cartwright an additional $1,840 in associated legal costs.
Sourced through Scoop.it from: mynewsla.com
At least three times a week, I end a telephone conversation with the following statement, after concluding that the legal action the caller is proposing would be met with an anti-SLAPP motion:
“I’m sure you can find any number of attorneys who will happily take your money to pursue this action, but I think you will be met with a successful anti-SLAPP motion if you move forward. If you do find an attorney willing to take this case, please ask them how they will deal with the anti-SLAPP motion. If they can’t provide a good answer, don’t pursue the case.”
This was one of those kind of cases. A singer by the name of Ronee Sue Blakley found an attorney to pursue the case, it was met with an anti-SLAPP motion, and Blakley is now paying the price.
Consider the theory of this case. Blakley dated someone for five years way back in the 80s, and 35 years later when said significant other wrote a screenplay about a fictional character, Blakley claimed the fictional character was based on her, and that the characterization was defamatory.
I never understand this reasoning. I recently received a call from a woman who was convinced that a person portrayed as an incompetent parent on a popular sitcom was based on her. (She knew one of the writers, and felt that he was using her as a model.) But if she wasn’t an incompetent parent, then why would she think that other people would assume this incompetent parent was her? Even if the character was based on the caller, that is irrelevant unless the people watching the sitcom would understand the connection.
The court in the Blakley case came to the same conclusion. The judge found that a reasonable viewer of the movie would not see any similarities between Blakley and the character.
After granting the anti-SLAPP motion, the court awarded defendant $209,670 in attorney fees, representing 476 hours of attorney time. A high price to pay to take a run at such a thin claim.
SCOCA Grants Review in Pivotal anti-SLAPP Case
On May 13, 2015, the California Supreme Court granted review in Baral v. Schnitt to resolve the divide among lower courts regarding whether anti-SLAPP motions can strike so-called “mixed” causes of action.
Source: scocablog.com
This is a very important case in the anti-SLAPP world, and the Supreme Court may finally clear up the competing decisions as regards mixed causes of action.
Here is how these causes of action typically arise. A homeowner is having a dispute with a neighbor and sues for harassment and infliction of emotional distress, alleging that the neighbor has made false police reports, called child protective services, and has left dog poo on his lawn.
Of those allegations, two are protected activities — calling the police and child protective services. The third, involving the dog poo, is not. So if the neighbor brings an anti-SLAPP motion, how should the court deal with these mixed causes of action?
Some courts have held that the entire claim falls under the anti-SLAPP motion, while others have held that the protected activity allegations should be stricken. Others still have held that the claim survives. Hopefully, this review by the California Supreme Court will finally resolve the issue.
Washington Supreme Court Shoots Down Unconstitutional Anti-SLAPP Statute
The Washington legislature has learned that even a good idea can be taken too far.
When Washington decided to enact an anti-SLAPP statute (it was greatly revised in 2010), it certainly had many states’ examples to choose from. Some states, feeling that anti-SLAPP protections are so essential, have added protections that exceed those of California’s anti-SLAPP statute. California was the first state to pass an anti-SLAPP statute, and many states have the based their laws on California’s tested formulation, while others have tinkered.
In the case of Washington, the legislature decided to up the ante by requiring a plaintiff to show by clear and convincing evidence that their case has merit. Even a cursory review of this heightened standard should have made clear that such a requirement is impermissible.
The Seventh Amendment of the United States Constitution guarantees the right to a jury in a civil trial, and that protection exists on the state level through the states’ own constitutions. For example, Washington’s constitution provides:
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
California’s Constitution very similarly provides:
Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.
To set the stage for our analysis, let’s forget about anti-SLAPP statutes for the moment, and focus on long-tested motions that are familiar to us. Let’s go back in time to when the states were trying to find ways to clear their trial dockets, and came up with the idea of a summary judgment motion. How is a summary judgment motion – which allows a judge to deprive a party of their right to a jury trial – permissible? Similarly, how is a demurrer permissible?
These procedures pass constitutional muster because the court is not weighing the evidence nor deciding the case. Rather the court is simply determining whether the plaintiff’s evidence, if taken as true, would support the claims. If there are any material conflicts in the evidence, the court must deny the motion for summary judgment and allow the case to go to trial. The court cannot decide those conflicts. In the case of a demurrer, the court does not even consider the evidence, but merely takes all of the allegations as true, and determines whether those allegations are sufficient to state a cause of action.
OK, now we can return to Washington’s anti-SLAPP statute. Revised Code of Washington 4.24.525(4)(b) provides:
A moving party bringing a special motion to strike a claim under this subsection has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion.
But hold on Maude. I have a right to jury in Washington. If you make me prove my case by “clear and convincing” evidence at the commencement of the action, that’s all kinds of wrong. First, I have to prove up my case before I can even conduct discovery, and the clear and convincing standard means I have to prove something to the judge. I shouldn’t have to prove anything to the judge. I have a right to jury, and I’ll do my proving to the jury, thank you very much.
The court can decide only issues of law. That means, the court can decide if my complaint adequately sets forth the elements of the causes of action, and, as in the case of a motion for summary judgment, the court can even decide if my evidence, if taken as true, would be sufficient to support my causes of action. But the court cannot decide my case on the evidence. The court can decide if I have evidence, but it can’t weigh that evidence. But for the court to make a “clear and convincing” determination, it necessarily must weigh the evidence. In doing so, the court has decided my case and deprived me of my right to jury.
So held the Washington Supreme Court. Today, the court found the anti-SLAPP statute to be unconstitutional. In the case of Davis v. Cox, the court held:
Though the statute seeks to “[s]trike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern,” Laws of 2010, ch. 118, § 1(2)(a), we conclude the statute’s evidentiary burden fails to strike the balance that the Washington Constitution requires. Because RCW 4.24.525(4)(b) requires the trial judge to adjudicate factual questions in nonfrivolous claims without a trial, we hold RCW 4.24.525 violates the right of trial by jury under article I, section 21 of the Washington Constitution and is invalid.
No doubt Washington will soon pass a new anti-SLAPP statute which replaces the “clear and convincing” language with “a probability that the plaintiff will prevail on the claim.”
Note to the Washington Legislature. You may want to use California’s anti-SLAPP statute as an example. It’s not perfect, but it’s been battle tested for 25 years.
Libel Lawsuit against NYTimes for Slavery ‘Not So Bad’ Comments Dismissed
The New York Times won’t be sued for libel over its article quoting a Loyola professor saying slavery was “not so bad,” the Columbia Journalism Review reported.
The professor, Walter Block, said the Times took his comments “out of context” and suggested he “is a racist, a supporter of slavery, and/or against the Civil Rights Act … solely because of racial prejudices,” the judge’s ruling stated.
Source: www.imediaethics.org
This is another example of how, in a defamation action, the speaker gets to define his own words.
It sometimes comes up in my practice that I get a call from a potential client who wants to sue for defamation because someone referred to him as a “stalker.” The caller has looked up the criminal code section that defines “stalker,” and argues that he does not meet the elements, making the accusation false.
That analysis would only be true if the alleged defamer said or wrote, “Joe is a stalker as defined by the criminal code.” But if the defamer merely stated, “Joe is a stalker,” then what he meant by that is crucial. Stated another way, Joe does not get to define the term used by the defamer, unless that definition is reasonable.
This case presented that issue, with an additional layer. Here, a college professor was talking about slavery, and from a specific context, said it was “not so bad.” The reporter from the New York Times who reported on the comment, said that the professor had stated that slavery was “not so bad,” but really didn’t provide the context.
The professor sued for defamation, stating the newspaper article took him out of context; that he didn’t really mean to say that slavery was not so bad.
But here’s the thing, Professor. We don’t have to agree with your interpretation. I get that in your mind, you were attempting to make the point that from an external viewpoint, slaves were fed and clothed, and even got to sing in the fields as you put it, in order to make the point that what made slavery so horrific was its involuntary versus voluntary nature. But the author is free to decide that even in that context, your comment exhibits extreme insensitivity.
The NYT brought an anti-SLAPP motion on that basis, and the trial judge agreed and dismissed the action. “The Court finds that the references made to Block are not capable of defamatory meaning, nor do they place him in a false light,” the judge wrote.
Click "Amazon Music" for all episodes of California SLAPP Law Podcast