Anti-SLAPP motion
Governor Signs anti-SLAPP Bill, Protecting Calls to Police from Retaliation
A dispute over a campaign sign in 2010 in rural Washington County was the impetus for a new law that will protect a person who calls the police from being sued.
Source: www.twincities.com
Sometimes the law seems so self-evident, until you see a case in another state that does not afford the same protections as California.
I get innumerable calls from potential clients wanting to sue for what they contend were false police reports. In California, calls to the police are protected speech, even if false. Apparently not so in Minnesota, and this case illustrates why it is a really bad idea to allow a criminally charged defendant to use civil court as a means to badger his accusers. At least Minnesota has seen the error of its ways and is amending the anti-SLAPP law.
[UPDATE:] Minnesota learned its lesson, but California’s Legislature abandoned common sense in order to virtue signal. Beginning January 1, 2021, California no longer affords absolute protection for calls made to the police. The privilege is now conditional, and can be overcome by showing that the report was made with malice. You can now be sued for calling the police.
C.A. Upholds Ruling in Suit by Customer Claiming False Arrest
A finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony, the Court of Appeal for this district ruled yesterday.
Source: www.metnews.com
Great case, discussing the elements of malicious prosecution.
I get many calls from clients wanting to sue for defamation and/or malicious prosecution after they are found not guilty of a criminal charge (or if the District Attorney decides not to pursue the case). As this case makes clear, a finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony.
The Court of Appeal ruled that case law has long held that a magistrate’s ruling at the preliminary hearing that prosecutors presented sufficient evidence to bind a defendant over for trial is preclusive on the issue of probable cause on a subsequent malicious prosecution claim.
The justice acknowledged on exception. There can still be a claim for malicious prosecution when the magistrate’s ruling is procured by false testimony, but the exception does not apply where the magistrate directly determined that the allegedly false witness was credible. “Accordingly, the magistrate’s probable cause determination, based on its credibility finding that Casasola testified truthfully about plaintiff’s threat, was sufficient to invoke collateral estoppel.”
It is a really tough burden to pursue a malicious prosecution action based on a criminal prosecution.
Sony, CBS: Actress Can’t Sue for Retaliation Because She Never Applied for Job
Former ‘Young and the Restless’ star Victoria Rowell claims she was refused reemployment after advocating for more African-Americans in soap operas.
Source: www.hollywoodreporter.com
Interesting case with employment law and anti-SLAPP issues.
The plaintiff, an actress, claimed she was retaliated against when she complained that there are not enough African-Americans in soap operas. The only problem is, she never asked for a job. I’m considering bringing an action against the NBA for favoring tall people, even though I’ve never tried out.
The case also includes anti-SLAPP issues, with the defendants managing to get the case transferred from New York, where the anti-SLAPP law does not cover free speech issues, to California where it does.
SLAPP013 – Bench Warrant Arrest Not Protected Activity under Anti-SLAPP Statute
In Episode 13 of the California SLAPP Law podcast (should I have skipped 13, like they do in buildings?), we cover a lot of information that will be useful to any litigator.
Although not directly related to SLAPP law and anti-SLAPP motions, I discuss how and when to bring the various trial motions; Motion for Nonsuit, Motion for Directed Verdict, and the most powerful motion that no one seems to have heard of, the Motion for Judgment. If you’ve ever been confused about which ones are used in bench trials versus jury trials, when they should be brought, and which one is best to use, this podcast will clear it all up.
Then we move onto two recent anti-SLAPP rulings.
The first is Makaeff v. Trump University, LLC (9th Cir.) 715 F. 3d 254. I discussed this case back in Episode 9, but there has been a new development.
As you may recall, Makaeff took some business courses at Trump University, but then later sued, claiming the classes. Trump University countersued, claiming that Makaeff’s criticism of Trump University amounted to defamation. Makaeff responded to the suit with and anti-SLAPP motion. The district court denied the anti-SLAPP motion, but that denial was reversed on appeal. Now the victorious party on her anti-SLAPP motion, Makaeff brought a motion for attorney fees.
We discuss the number of hours Makaeff’s attorneys claimed to have spent on the anti-SLAPP motion and appeal, the opposition to the motion for attorney fees, and how the court responded.
In that context, we discuss Serrano v. Unruh (1982) 32 Cal.3d 621, wherein the California Supreme Court held that where an attorney overreaches in a fee application, fees can be denied in their entirety. Serrano cited to the following cases in reaching that conclusion.
See, e.g., Copeland v. Marshall, 641 F.2d 880, 902-903 [not allowable are hours on which plaintiff did not prevail or “hours that simply should not have been spent at all, such as where attorneys’ efforts are unorganized or duplicative. This may occur … when young associates’ labors are inadequately organized by supervising partners”]; Gagne v. Maher, 594 F.2d 336, 345 [excessive time spent]; Lund v. Affleck (1st Cir. 1978) 587 F.2d 75, 77 [if initial claim is “exorbitant” and time unreasonable, court should “refuse the further compensation”]; Reynolds v. Coomey (1st Cir. 1978) 567 F.2d 1166, 1167 [duplication of effort]; Farris v. Cox (N.D.Cal. 1981) 508 F.Supp. 222, 227 [time on fee petition denied for “overreaching”]; Vocca v. Playboy Hotel of Chicago, Inc. (N.D.Ill. 1981) 519 F.Supp. 900, 901-902 [fee denied in entirety on ground of counsel’s dilatoriness and hours claimed for clerical work]; Jordan v. United States Dept. of Justice (D.D.C. 1981) 89 F.R.D. 537, 540 [fee denied in entirety on ground of unreasonable request and inadequate documentation].
Next, we discuss Anderson v. Geist (2015) (no citation yet available). In Anderson, two deputies executed a bench warrant on a woman, not realizing the warrant had been withdrawn. The woman sued for defamation and a number of other claims. The deputies responded with an anti-SLAPP motion, claiming that the arrest was protected activity. Listen to the podcast to see if that strategy worked.
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Courtney Love Fails to Get an Appeals Court to Dispense Defamation Lawsuit
A California appeals court sees no evidence that Courtney Love’s fame is on par with Marlon Brando’s. As a result, the rock star will continue fighting a lawsuit from a fashion designer who claims being defamed by Love on social media and Howard Stern’s radio show.
Dawn Simorangkir, a.k.a. the “Boudoir Queen,” is the plaintiff who’s fought Love on and off (and on) for the last six years.
Source: www.hollywoodreporter.com
I first reported on this case about six years ago, and the beat goes on.
A designer named Dawn Simorangkir, aka the “Boudoir Queen”, managed to get on the bad side of Courtney Love, who took to Twitter to call Simorangkir a “thieving prostitute” and the like. Simorangkir sued for defamation, and that action ultimately settled for $430,000.
But Love was undeterred.
She again began talking trash about Simorangkir on various social media, and the designer again sued. This time Love sought to dispose of the action by way of an anti-SLAPP motion.
Will that work? Well, let’s go through the analysis. To prevail on an anti-SLAPP motion, the defendant must first establish that the matter falls under the anti-SLAPP statute, and that requires a showing that the protected speech in question involves a matter of public interest.
“No problem,” said Love’s attorneys, “we can rely on the Marlon Brando case, wherein his housekeeper claimed an invasion of privacy when a television show did a story on how she was named in Brando’s will.” (I didn’t actually hear Love’s attorneys say this, but the story flows better if we assume they did.) In the Marlon Brando case, the court found the housekeeper and the will were matters of public interest because Brando was such a huge celebrity. Following the reasoning of the Brando case, Love’s attorneys argued that this was not a simple matter between two individuals with no public interest, but rather fell under the anti-SLAPP statute because Love’s fame made it a matter of public interest.
But there was a problem. Judge Allan Goodman said, “I knew Marlon Brando, Marlon Brando was a friend of mine, and you, Ms. Love, are no Marlon Brando.” Actually he didn’t say that, but that was the essence of his holding. He simply found that Love’s fame is not enough to make her controversies a matter of public interest.
The takeaway here is that the first prong of the anti-SLAPP analysis is still alive and well. So many controversies are deemed to be matters of public interest that some attorneys fail to focus sufficiently on that prong. But if the issue is between two individuals or limited to a small group, take a hard look at that prong.
See on Scoop.it – California SLAPP Law
SLAPP012 – Three Ways to Bring an Anti-SLAPP Motion Against an Ambiguous Complaint
Sometimes you just know that a SLAPP is hiding in the complaint, but the complaint is so ambiguous that the SLAPP allegations are unclear. What to do?
In this episode, I tell you how to file an anti-SLAPP motion against an ambiguous complaint, which sometimes involves first beating it into shape. I have three approaches, which I call Demurrer, Discovery and Damn the Torpedoes.
1. Demurrer Approach.
As you can probably guess, the demurrer approach uses a demurrer to the complaint as the means to force plaintiff/cross-complainant to better set forth the SLAPP allegations.
In one case, I sent a demand letter and draft complaint to defendant, demanding the amount owed to my client. When defendant did not respond, I filed and served the complaint.
Defendant responded with a cross-complaint, alleging a cause of action for Intentional Infliction of Emotional Distress (“IIED”). In the general allegations of the cross-complaint, defendant made reference to the demand letter and draft complaint, and those allegations were incorporated into the claim for IIED, but it was very unclear what defendant was claiming has caused him the emotional distress. If he was asserting that the letter and draft complaint were the culprits, those would be protected under the litigation privilege, and the cross-complaint would be a clear SLAPP.
I demurred to the cross-complaint, and defendant took the bait. His attorney filed a first amended cross-complaint, and this time made very clear that the letter and draft complaint had caused the stress. I was then able to file the anti-SLAPP motion, which was granted.
2. Discovery Approach
The downside to the demurrer approach is that you may run into a lazy judge, who declines to rule on the demurrer, telling you instead to “flesh out” the meaning of the allegations with discovery. If your demurrer is overruled, then it is likely you will by then be beyond the 60-day deadline for bringing your anti-SLAPP motion, and will have to seek permission.
Instead, if you act quickly, you can complete a round of discovery before the deadline for having to file the anti-SLAPP motion. That discovery can nail down the meaning behind the allegations of the complaint, and the responses can be used to support the anti-SLAPP motion.
3. Damn the Torpedoes
Finally, there is the Direct Approach, which I refer as “Damn the Torpedoes”.
In the case of an anti-SLAPP motion I filed this week, the complaint alleges a claim for Intentional Interference with Prospective Economic Advantage. Plaintiff alleges only that my client spoke to others, and those conversations interfered with the business.
In this case, my client knows who he talked to, so we can fill in the blanks without the need for a demurrer or discovery. In essence, the anti-SLAPP motion sets forth the details left out of the complaint. It identifies who my client contacted, and then shows why each of those conversations is privileged. The worst that could happen is that plaintiff will make a false claim that someone else was contacted, but that still has value, since early in the action we will have forced plaintiff to put his cards on the table.
Listen to the podcast for a far more detailed discussion, including the pros and cons, for each approach.
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Judge Dismisses Slander Lawsuit Filed By Gang Crackdown Defendants
Judge Thomas Anderle has dismissed a lawsuit filed against the City of Santa Barbara, police chief Cam Sanchez, and police spokesperson Sgt. Riley Harwood by 10 people who claim they were the victims of slander and emotional distress when they were named in an ongoing gang suppression operation and when their mugshots were displayed during a November 2013 press conference on the crackdown. The ruling also allows the city to recover its attorney’s fees.
Source: www.independent.com
Ouch. When this case was filed, I predicted it would end like this. When will attorneys learn?
In the case, the plaintiffs’ mugshots were shown in conjunction with a “gang suppression operation”. They took umbrage, claiming that while they had all indeed been arrested as part of the operation, they were not gang members. They claimed such an allegation caused all kinds of emotional distress.
Let’s freeze right there. As I explain in excruciating detail at WhatIsDefamation.com, to a certain extent, the speaker of the alleged defamation gets to define their own terms. Defendants here may define gang member as “someone who gets arrested during a gang suppression operation”.
But aside from this reality, it is not enough to show that the statements were false. Because this was a matter of public interest, the Plaintiffs had to show that the defendants acted with malice.
Counsel for Plaintiffs was seeking $1 million per client. He fell a little short. Instead, these Plaintiffs will get to split the cost of the defendants’ attorney fees.
See on Scoop.it – California SLAPP Law
Yelp Asks California High Court to Slap Down Restaurateur’s Suit Over Review Filter | Thomson Reuters Blog
Yelp’s statements to consumers about the accuracy of its review-filter software are protected speech, the website operator has told the California Supreme Court.
In an Aug. 28 petition for review, Yelp urges the high court to overturn a recent appeals court decision allowing restaurateur James Demetriades to proceed with his false-advertising suit against the site. The company says the state’s anti-SLAPP statute protects Yelp’s statements about the review filter.
Source: Thomson Reuters
I discussed this case at length in the 10th episode of the California SLAPP Law Podcast. The tables have been turned on Yelp. After suing one law firm for alleged fake reviews, this plaintiff is suing Yelp for fake reviews about itself. Yelp claims that its reviews are trustworthy, despite all evidence to the contrary.
Nonetheless, it pursued an anti-SLAPP motion against this claim for false advertising, and lost. It is now appealing that loss to the California Supreme Court.
Michael Mann Brief Lays Out Climate Change Defamation Theory – Climate Science Watch
In a brief filed today in the DC Court of Appeals as part of his defamation lawsuit against the National Review and the Competitive Enterprise Institute, Michael Mann once again argued his case and requested that the Court proceed to adjudicate the merits of Defendants’ appeal of the trial court’s denial of their motion to dismiss. The stated intention of Dr. Mann’s request is to expedite moving to trial on a case that has been long-delayed in procedural tangles.
Source: www.climatesciencewatch.org
This climate change defamation case has been an interesting one to follow. It was falsely assumed by many that the suit would not survive an anti-SLAPP motion because it is based on a dispute over global warming, and that is a hotly-debated issue. However, the anti-SLAPP motion failed because the defamation arises from the claim that the research was conducted fraudulently. That is an allegation that can be proven true or false, and therefore is not opinion.
See on Scoop.it – California SLAPP Law
The Weirdest Story About a Conservative Obsession, a Convicted Bomber, and Taylor Swift You Have Ever Read
Benghazi, Robin Williams, Islam, Twitter, and a convicted bomber from the 1970s came together in a court case against right-wing bloggers.
Source: www.thedailybeast.com
A very entertaining story about a guy who likes to sue, illustrating why a federal anti-SLAPP law might not be a bad idea.
See on Scoop.it – California SLAPP Law
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