Anti-SLAPP motion
Conflict-of-Interest Suit Against Lawmakers No SLAPP, C.A. Rules
See on Scoop.it – California SLAPP Law
Anti-SLAPP motion denied.
A suit against a public official who is accused of acting on a contract in which he or she has a personal financial interest does not implicate speech or petition rights for purposes of the anti-SLAPP statute, the Court of Appeal for this district has ruled.
Similar to the HOA case I reported yesterday, the fact that the defendant is voting or acting in an official capacity does not successfully invoke the anti-SLAPP statute if the basis of the action is fraud or breach of fiduciary duty.
Here, members of the Los Angeles City Council voted 3-2 to award a 15-year, $150 million contract to a company in which one of the members had a financial interest.
The Court of Appeal, said the a council member’s vote is an act on behalf of the public, not the individual, and thus does not implicate free speech and petition rights.
See on www.metnews.com
Anti-SLAPP Ruling: Opinion by Standard & Poor’s Not Necessarily Protected Speech
With the wisdom of a penny-stock investor trying out day-trading for the first time, the brilliant financial minds at CalPERS (California Public Employees’ Retirement System) decided to dump more than a billion dollars into three “structured investment vehicles” or SIVs, backed by subprime mortgages. (That was a really long sentence but I think it’s grammatically correct.) After all, Standard & Poors had given these three SIVs AAA ratings, even though they were “stuffed full of toxic, subprime mortgages, home equity loans, and other types of structured-finance securities linked to subprime mortgages,” as CalPERS now alleges.
As most do when they make really bone-headed investment decisions, CalPERS looked for someone to blame, and settled on Standard & Poors for that AAA rating. It sued Standard & Poors for negligent misrepresentation, asserting that the ratings company should be held responsible for the losses suffered by CalPERS.
“But wait a cotton-picking minute,” said some fictional attorney representing Standard & Poors, “I read somewhere in law school that opinion is protected speech, and won’t support an action.” On that basis, Standard & Poor’s filed an anti-SLAPP motion, but a San Francisco judge denied the motion, finding that CalPERS had provided sufficient evidence to meet the second prong of the anti-SLAPP analysis. (Judge Richard Kramer to be precise, in case you happen to know the judges at the San Francisco Superior Court. Me, I never heard of the guy even though I have handled cases in that courthouse.)
Standard & Poors exercised its right to appeal that decision, but the Court of Appeal affirmed. As Justice Martin Jenkins (I don’t know him either) wrote:
We agree with CalPERS this evidence reflects that the Rating Agencies published the ratings from a position of superior knowledge, information and expertise regarding the SIVs’ composition, underlying structure and function that was not generally available in the market. More specifically, we conclude this evidence reflects not only that the Agencies employed superior knowledge and special information and expertise to assign ratings to the SIVs, they employed their special knowledge, information and expertise to participate in, and exert control over, the very construction of the SIVs. As such, we agree with CalPERS a prima facie case has been made that the ratings are actionable as ‘professional opinions’ or ‘deliberate affirmations of fact’ regarding the nature and quality of the SIV product.
While pure opinion speech is of course protected, and would generally protect Standard & Poor’s from it predictions, “the same cannot be said of the ratings at issue here, which were allegedly issued for private use by the limited class of investors dealing in complex and esoteric nonregistered securities,” Jenkins said.
IBM Mag Card Typewriter
The case is California Public Employees’ Retirement System, Inc. v. Moody’s Investors Services, Inc., 14 S.O.S. 2584. I have provided below the actual file-stamped copy of the complaint (complete with Civil Case Cover Sheet!) and the opinion of the Court of Appeal.
I have also attached a copy of the Order on a demurrer in the action. It has nothing to do with what we are discussing, but I wanted you to see it so you don’t make the same mistake the attorneys at Berman DeValerio made. Well, it’s not so much a mistake, per se, ab initio, but they prepared the proposed order and entitled the document “[Proposed] Order blah, blah, blah.” So far so good. The judge then reviews and signs the Order, and crosses out the word “proposed” in the name of the document. But then thinking that the footer has to exactly match the name of the document, the attorneys at Berman DeValerio (I’m guessing it was Daniel Barenbaum because he has a pretty high bar number, whereas Joseph Tabacco stated practicing back when IBM Mag Card typewriters were on the bleeding edge of technology, and he would therefore be very frugal with keystrokes) then put that exact title in the footer of every page in the proposed order. Poor Judge Kramer then had to cross out the word “Proposed” on every single page. No wonder it takes so long to get a case to trial in San Francisco. I never put the word “proposed” in the footer, and so far no one has ever complained.
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDSkQ1c0FIUC1TQXc/edit?usp=drivesdk” title=”Complete Calpers Complaint.pdf” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDbWFPWFVFVk83RUk/edit?usp=drivesdk” title=”Opinion re CalPERS.PDF” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDSUFaVmUwTXZOX0E/edit?usp=drivesdk” title=”Order from demurrer.pdf” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
Posted in Anti-SLAPP motion, Case Results, SLAPP | Tags: Berman DeValerio, Daniel Barenbaum, Joseph Tabacco | 1 Comment »
SLAPP004 – Anti-SLAPP Motion: Yelp v. McMillan Law Group
In this 4th episode of the California SLAPP Law Podcast, I discuss the truly strange legal action brought by Yelp against one of its former customers, the McMillan Law Group.
In its complaint, Yelp alleges that it works to maintain the purity of the reviews posted on Yelp.com, and that the McMillan Law Group caused damage to Yelp by posting false positive reviews. McMillan Law Group has just responded with an anti-SLAPP motion. Together, we dissect both the Yelp complaint and the McMillan anti-SLAPP motion, and predict the outcome of the motion.
Here are the cases discussed in today’s show:
Romona Unified School District v. Tsiknas (2005) 135 Cal.App.4th 510.
Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.
Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1559 (dissenting opinion).
Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.
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SLAPP003 – Anti-SLAPP Procedures and Strategies
A lot of useful information in today’s show, if I do say so myself.
We discuss anti-SLAPP procedures and strategies, and what you need to know about the 60 and 30 day deadlines for anti-SLAPP motions, and an easy and efficient way to protect your anti-SLAPP motion if the court clerk won’t set the hearing in 30 days or less.
I show you why it can be risky to amend a complaint, and why using a motion to supplement might be a better bet.
And we even discuss some tips for appeals and motions for summary judgment, as well as a free WordPerfect app for your iPad.
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Morris & Stone Victory – Reducing Attorney Fees
I am often brought in as an expert to oppose inflated attorney fee applications following an anti-SLAPP motion. Of course every case is different, but thus far I have never failed to get the requested fees reduced. Lest you be overly impressed, I will immediately note that I only handle a case if I agree that the attorney fees should be reduced. Sadly, there are far too many unethical attorneys who, after prevailing on an anti-SLAPP motion, view fee application as a winning lottery ticket, and greatly inflate the fees. In most instance my services are sorely needed to challenge the application, but there have been a few occasions where the fees being requested are reasonable in my opinion, and I inform the plaintiff and/or his attorney that I cannot opine that a reduction would be appropriate.
In today’s case, the fee application was of the all too common variety, where defense counsel grossly overstated the fees to which he felt entitled. In this case, the plaintiff had negligently filed a SLAPP, making the common mistake of seeking damages that flowed from fighting a legal action, claiming that the action was an “abuse of process.” When the defendant filed the anti-SLAPP motion, the plaintiff was educated as to the litigation privilege, and dismissed the challenged causes of action (others still remained). Rather than just bringing me in as an expert, the client decided to retain me to oppose the motion and prosecute the remaining causes. Read the rest of this entry »
Mug Shots Won’t Support Defamation Claim
Is it appropriate to call an attorney and scream, “Don’t do it!”?
I came across this article today, and this poor attorney is about to go down a very bad path. I have seen this scenario played out over and over. Should I warn him? Would he listen?
Here’s the scenario.
The City of Santa Barbara apparently has some sort of a gang task force, and the police published a bunch of mug shots of people that were arrested, purportedly in relation to that task force.
Six of the people pictured in those mugs shots or otherwise mentioned took umbrage with being portrayed as gang members, and are threatening to sue. Their attorney held a press conference to announce that he is going to seek $1 million in damages for each of his six clients, and will be filing a claim as required, before filing a legal action.
Don’t do it!
For a number of reasons, such a case won’t survive an anti-SLAPP motion, and your six clients will end up on the hook for all the attorney fees.
Most problematic is that the statements are protected by the common interest privilege, so you’ll need to show that the City acted with malice when it posted those mug shots.
Second, your clients WERE arrested, so if they are going to claim loss of reputation, they’ll need to show that their shame comes not from having their mug shots shown, but rather from the additional fact of being cast as a gang member. How are you going to accomplish that surgical cut?
Finally, to be defamatory, you need to be able to show that the defendant made a verifiable assertion of fact that was false. Did the City really say that your clients are gang members, or are you going to allege that the mug shots and surrounding circumstances implied that they are gang members? The latter is not sufficient.
Hopefully, the attorney is just doing a little saber-rattling, hoping for a settlement, and won’t actually file the complaint. I’ll keep an eye on this one and let you know.
[UPDATE – December 8, 2014] I feel bad. Perhaps I should have picked up a phone. But I’m convinced the attorney probably would not have accepted my advice. I didn’t stumble across the news until today, but according to this article, the attorney did file a claim against the City of Santa Barbara, and did make good on his threat to file a complaint. The City responded with an anti-SLAPP motion, which was granted late in November, about a year after the attorney held the initial press conference that occasioned my prediction that the matter would fail if pursued.
I was unable to find a copy of the Court’s order, but the article published by the Santa Barbara Independent newspaper states that the Court’s ruling found that gang activity was a matter of public interest.
Anti-SLAPP Motions are Used For Just About Everything
This case is a few years old, but it illustrates how anti-SLAPP issues can come up in just about any context. In this entertaining case, Hallmark Cards published a card using Paris Hilton’s likeness, and her ridiculous tag-line, “that’s hot”.
Hilton sued for the unauthorized commercial use of her image and, incredibly, Hallmark brought an anti-SLAPP motion, claiming the card was a matter of public interest. The trial court denied the anti-SLAPP motion, finding the card and its speech was not a matter of public interest, and the Court of Appeals for the Ninth Circuit agreed.
“First, ‘public interest’ does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort to gather ammunition for another round of private controversy. Finally, … [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.”
Posted in Anti-SLAPP, Anti-SLAPP motion, anti-SLAPP motions, Case Results, Cases, Defamation, Defamation Solutions, Litigation, SLAPP | Tags: Paris Hilton SLAPP | No Comments »
Why It Is a Really Bad Idea to Use Litigation as a Means to Discover Defamation
I get this type of call perhaps twice a week, so I decided to post this article, in order to provide detailed information to prospective clients who bring up these issues.
Here is the scenario. The caller is convinced that he is being slandered, but does not know exactly what is being said. He may know who is making the statements, but has heard only rumors about what is being said, or has witnessed only the consequences of the statements. Often the issue will arise in the workplace, where because of the statements of a co-worker, the caller is being passed over for promotions, or perhaps was terminated because of those statements. Other times it might be a neighborhood situation, where the caller feels he is being shunned by neighbors and has reason to believe it is because of something said at an HOA meeting.
The problem with this sort of case is that you can’t determine if you are being defamed until you know what is being said. The consequence of a false statement can be severe, but that does not mean the statement is defamatory. For example, you might be entirely correct that you are being passed over for promotions because of something being said by a co-worker, but that co-worker might simply be saying that you are lazy and should not be promoted. That statement is not defamatory, because it is an opinion. Defamation can be very nuanced, and whether a statement is defamatory can come down to a single word or even the voice inflection used.
Before I can take a case, I have to know what was said. In cases where the prospective client does not have direct evidence of what is being said, I have a simple screening process. Read the rest of this entry »
Posted in Anti-SLAPP, Anti-SLAPP motion, Cases, Defamation, Defamation Solutions, Evidence, Slander, SLAPP | Tags: Depositions, Discovery, Slander, Witness, Witnesses | No Comments »
Anti-SLAPP Victory: Reality Television is Free Speech
The reality show “Storage Wars” has created a case that offers some important anti-SLAPP (and litigation) lessons.
In December, David Hester filed a lawsuit against A&E Television Networks alleging that producers of Storage Wars rigged the reality-television series by salting storage lockers with valuable items before they were auctioned off to buyers. The producers deny the claim, pointing out that they have no access to the lockers before they are sold, but it could be that they are adding the items with the assistance of the buyers, after the purchase, to make the show more entertaining. After all, if the show was nothing but lockers full of expired National Geographic magazines, that would get boring fast. But I digress.
According to his lawsuit, Hester was told that his contract would be renewed for season four, but after complaining about the “fraud” that was being perpetrated on the viewers, he was told his services would no longer be required. He sued A&E and another entity for wrongful termination (huh?), breach of contract, breach of the covenant of good faith, unfair business practices, and declaratory relief.
Lesson 1: For every wrong, there is not necessarily a remedy.
Some attorneys just never get this. If I hire you for my television show, and I have the contractual right not to renew that contract at some point in the future, and you do something I don’t like, such as telling me you don’t like the way I am running the show that I’m paying you $750,000 to be on, then I just may decide not to keep you around. You are not some bastion for the public, given the task of making sure my show is pure. All reality shows are faked to some extent, and the viewers all know they are faked (although, incredibly, I did once run into a guy who thinks Ghost Hunters is totally legit).
It may stink that Hester got “fired” for wanting to keep the show honest, but if he wanted to make sure he never got fired for criticizing the show, the he should have added a “you may not fire me when I tell you your show stinks” clause to his contract.
Lesson 2: A faked reality show is an expression of free speech.
Can you sue Stephen King when you find out Pet Sematary [sic] is not based on reality? Then why did Hester and his counsel think they could sue A&E for its fictional Storage Wars? Not surprisingly, A&E’s attorneys asked the same question in the form of an anti-SLAPP motion. The motion was a no-brainer, because it involves a free speech issue of public interest, bringing it within the anti-SLAPP statute, and there was zero chance of Hester prevailing on at least one or more of his causes of action, so the second element was a lock. Read the rest of this entry »
Posted in Anti-SLAPP motion, Case Results, Defamation | Tags: anti-SLAPP motion, David Hester, SLAPP, Storage Wars | No Comments »
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