anti-SLAPP motions
Is a Request for Civil Harassment Restraining Order Subject to an Anti-SLAPP Motion?
Restraining Orders and anti-SLAPP Motions
A very interesting issue arose in an anti-SLAPP matter that was brought to me. It involved a pretty specific situation that I have encountered only once before, but I think a research article is in order, to assist others who might find themselves in the same situation. The case arose from the client’s (Petitioner) obnoxious neighbor (Respondent). Suffice to say that Respondent had over the years engaged in annoying and threatening behavior, and our client had had enough. At the suggestion of the police, she filed an application for a Civil Harassment Restraining Order.
The Judicial Council has created forms to be used for this purpose, and like any form, it is at best a loosely fitting tool for the job. Petitioner filled out the forms the best she could, and attached a declaration to provide some additional facts she thought would be relevant for the court’s analysis.
In her declaration, she told the story of how she had repeatedly called the police in an effort to address Respondent’s harassment. She then said that in response to one of these calls to the police, Respondent had retaliated by making his own police report.
Oops. Reports to the police fall under the anti-SLAPP statute, so that afforded Respondent the opportunity to bring an anti-SLAPP motion, seeking to strike that “allegation.”
Petitioner didn’t know how to deal with the motion, and just showed up on the date set for the restraining order hearing. Thankfully, the court put off that determination so the anti-SLAPP motion could be heard, and set a briefing schedule. Petitioner then hired the Sultan of SLAPP, moi. Read the rest of this entry »
Many are Still Confused About How to Handle Mixed Causes of Action
I was recently served with an anti-SLAPP motion, attacking a complaint I filed on behalf of a client. I just filed our opposition, and felt compelled to write about the case, because it illustrates the continued confusion over how to handle mixed causes of action.
Filing an anti-SLAPP motion against the Sultan of SLAPP is a gutsy move. Let’s see if the attorney knew what he was doing.
Changing the facts as necessary to protect my client, the complaint is for defamation, and lists eight things the defendant said that are false and defamatory. The same eight statements were published two different ways. First, they were all published on Facebook, in a group that discusses the sort of business in which my client is engaged. Then they were published to an individual via a text message. I alleged two separate libel claims – one for the Facebook posting and the other for the text message.
Defendant should not prevail.
For a number of reasons, if the court follows the law, defendant cannot prevail on the motion. The first hurdle comes from the way evidence is viewed in conjunction with an anti-SLAPP motion. My client truthfully attested by declaration that all eight of the statements are false. Even without my client’s declaration, the falsity is apparent in some instances just based on the absurdity of the assertions. Read the rest of this entry »
Three Common Mistakes by Defense Counsel on Anti-SLAPP Motions
Like shooting fish in a barrel (although I have never understood why, if the fish are already in a barrel, there would be any need to shoot them).
I (telephonically) attended oral argument on an anti-SLAPP hearing this morning, and it again demonstrated that attorneys are just not thinking through their motions. I was brought in to defend against the motion. In reviewing the motion, I immediately recognized that the attorney for the defendant had made three major mistakes, any one of which would likely guarantee denial of the motion.
Just the facts, ma’am.
This case involves one of those horrible situations where someone stops taking care of their home, and it eventually falls into such disrepair that the government has to step in and mandate repairs, with the threat of selling the home.
The homeowner (the defendant in our case) went along with the process. The homeowner’s insurer actually stepped up and paid for the repairs, and Defendant agreed to all of the planned construction. But in the end, he did not feel that the home had retained its original character, and took to the internet to vent against our client, the contractor who had performed the repairs.
As is so often the case, Defendant was not satisfied to merely tell the true story, explaining why he was unhappy. In these situations, Defendants want to hurt the business they blame for their travails, so they embellish. He made up more and more lies, to the point that he was saying the contractor was never authorized to make repairs, and had “stolen” the insurance proceeds.
Before I was involved, the contractor had sued Defendant for defamation. I was brought in to oppose the anti-SLAPP motion.
The Top Three anti-SLAPP Cases Every Defense Attorney Cites, Whether they Apply or Not
Although the legal community appears to have come far in the past 30 years as regards awareness of the anti-SLAPP statute, it is still often the case that when I bring an anti-SLAPP motion, the plaintiff’s attorney is caught totally unawares. Even in those cases where I have warned opposing counsel of my intention to bring the motion, it is usually apparent that they thought it would not be an issue, based on some miscomprehension of what the statute covers.
This leaves them to scramble to try and find some basis to challenge the anti-SLAPP motion, and in doing so they inevitably cite to one or more of the following three cases. Sadly, they almost always cite these cases in ways that do not apply.
I will identify the top three cases cited by defense counsel, and explain why they almost never apply. Read the rest of this entry »
SLAPP031 – A Gambler Bets Wrong on the Anti-SLAPP Statute
In Episode 31, in addition to an anti-SLAPP case, we examine another example of how opposing counsel blew an opposition to our Motion for Summary Judgment, by being unaware of the procedure rules.
The limit for the memorandum of points on a typical motion is 15 pages, but a motion for summary judgment is a big deal, so the rules graciously allow 20 pages for that type of motion. The same rule applies to the opposition. But this attorney offered up a 60 page memo. How did we use that error to seal his doom? Listen to Episode 31 to find out.
Next we turn to the case of Mike Postle, a professional gambler. Some accused Postle of cheating at a particular poker tournament. He took umbrage with that, and sued 12 of his accusers. We would have told poor Mr. Postle the tale of Joe the Alcoholic, which made clear that he could not prevail on his defamation claim. Listen for all the details, and the only possible silver lining in Postle’s debacle.
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Does an anti-SLAPP appeal stay the action?
Does an anti-SLAPP appeal stay the entire action?
Seemingly, this question has been clearly answered ever since the Supreme Court ruling in Varian Medical Systems v. Delfino, way back in 2005, but I still see a lot of confusion on the topic.
As an example, I recently prevailed on an anti-SLAPP motion against an attorney, who was representing herself in a defamation action against my client. After the victory, as is my practice, I asked her if she wanted to pay the current attorney fees in order to avoid the extra expense of the motion for attorney fees.**
She chortled, “You can’t bring a motion for attorney fees, because I filed a notice of appeal regarding the ruling on the motion.”
After I prevailed on my motion for attorney fees, as is my practice, I called counsel to ask if she wanted to pay the (now greater) fees in order to avoid the extra fees for my time spent on collection, and the embarrassment of having her wages garnished at her law firm. (Yes, unlike typical collection efforts, the time spent on collecting attorney fees following an anti-SLAPP motion is recoverable.)
She chortled (what can I say? She’s a chortling fool), “You can’t seek to recover those attorney fees while an appeal is pending.”
We are currently receiving 25% of each of her paychecks while we await a date for oral argument on the appeal.
Allow me to take you through the Varian Medical Systems decision, because it lays out a good summary of the historical background on this point. These are the facts as summarized by the Supreme Court. Read the rest of this entry »
SLAPP027 – When a Motion to Dismiss is a Better Strategy than an Anti-SLAPP Motion
President Trump is never short on controversy, and said controversy leads to some interesting cases. In Episode 27 of the California SLAPP Law Podcast, we will discuss two Trump cases — one First Amendment and one anti-SLAPP — arising from the words and tweets of our sneerless leader. We’ll also discuss when a motion to dismiss can be a better option than an anti-SLAPP motion.
The first case is Nwanguma v. Donald Trump, arising from his comments at a political rally before he was elected. When hecklers tried to shout him down, he said “get ’em out of here.” The crowd heeded his words and bodily removed the protesters, who then sued for battery and incitement. They claimed that by saying “get ’em out of here,” Trump incited the crowd to riot. Trump moved to dismiss, arguing that his words were mere hyperbole. How did the court rule? Listen to Episode 27 and find out!
Next comes the infamous case of Stormy Daniels v. Donald Trump. Daniels sued Trump in two different forums for two different claims. In one, she is simply trying to get out the contract whereby she was paid for her silence. In the other, she had stated during a press conference that she had been threatened by a man who told her to be quiet about sleeping with Trump, even showing an artist’s rendering of the allege suspect from many years prior. Trump felt compelled to tweet that the story was a total “con job.”
Her attorney, Michael Avenati, who would have known better if he listened to the California SLAPP Law Podcast, decided to sue for defamation for Trump’s usage of the phrase “con job.” As any regular listener would know, “con job” is just too imprecise to support a defamation claim. It is not verifiably false, and without a verifiably false statement, there can be no defamation. Trump brought an anti-SLAPP motion, which was granted.
Not a good week for Avenati. In the same week that the court granted Trump’s anti-SLAPP motion, finding that Daniels would therefore be liable for all of Trump’s attorney fees, Avenati was found personally liable for a multi million dollar judgment by a former associate at his firm, and was given an eviction notice from his law offices for failure to pay rent.
And stay around for the after show, where I discuss the happenings with Bell v. Feibush, some precedent I created six years ago.
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SLAPP023 – Privileged Speech Can Survive Anti-SLAPP Motions
In Episode 23 of the California SLAPP Law Podcast, we examine two cases that consider how privileged speech should be viewed during the two-prong anti-SLAPP analysis. As you will hear, the fact that the speech was privileged does not mean it automatically falls under the anti-SLAPP statute.
Edalati v. Kaiser Foundation Health Plan, Inc.
This unpublished case is our starting point. In Edalati, a dentist learned that Kaiser Foundation Health Plan had sent a letter to dozens of her patients, falsely informing them that the dentist was on a government list for Medicare abuse. Kaiser realized it’s mistake and sent out a retraction letter, but by that point the damage had been done. The dentist sued for defamation, and Kaiser responded with an anti-SLAPP motion.
Kaiser’s letter clearly falls under the common interest privilege of Civil Code section 47, but is that enough to prevail on an anti-SLAPP motion?
Lefebvre v. Lefebvre
In opposition to Kaiser’s anti-SLAPP motion, the dentist in Edalati relied on the case of Lefebvre v. Lefebvre. In that case, a wife, in the hope that it would help in a custody dispute, filed a false police report against her husband, claiming he had threatened to kill her and their children. He was arrested and charged. He was found not guilty, and then sued his ex-wife for defamation. The wife brought an anti-SLAPP motion.
The report to the police enjoys an absolute privilege, so the anti-SLAPP motion must have been granted, right? Don’t be so sure. Listen to this latest episode to find out. Here’s a hint. The case law discussed in this episode offers a means to save attorneys and their clients from an award of attorney fees when they end up on the wrong side of an anti-SLAPP motion.
A great, FREE program
The publisher stopped supporting and offering a fantastic program called Notescraps that I use every day in my practice. I not only prevailed on them to keep offering the program, I got them to give it to you for free (it used to be $20). I tell you how to get it on this episode.
Book ’em Danno.
And finally, just for fun, I tell the tale of my encounter with some officious deputies at the courthouse. I still made it to court and still won my motion.
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SLAPP022 – Abuse of Process Claims and Anti-SLAPP Motions
Hooray for Hollywood! In Episode 22 of the California SLAPP Law Podcast, we discuss four cases involving the film industry that have all resulted in anti-SLAPP motions. We also dive deep into abuse of process claims, and determine if such claims can ever survive an anti-SLAPP motion. And in the process, we discuss a trial strategy that I successfully utilized in achieving a case involving the Automotive Repair Act.
Cases discussed in this Episode:
Kelly Van v. James Cameron (unpublished).
In this case, and author named Kelly Van sued James Cameron and a cast of thousands, claiming that Avatar was a ripoff of her book, Sheila the Warrior; the Damned. When she lost the copyright action in Federal Court, she sued in state court, claiming that she only lost the federal action because the defendants had lied. So she was suing for statements made in another case. Sounds like a SLAPP to me.
Timothy Forsyth v. Motion Picture Association of America, Inc.
In this class action, the plaintiff claims that depictions of smoking in the movies are killing our children. They claim it is a violation of the movie rating system to give a movie a PG-13 rating if the movie depicts smoking (such as Gandalf smoking his pipe in the Lord of the Rings movies). So the plaintiff gets to tell the movie industry how to rate movies? Sounds like a SLAPP to me.
Paul Brodeur v. Atlas Entertainment (unpublished).
In the 70s, Paul Brodeur told the world that microwave ovens were dangerous, but he never said the cook the nutrients out of food. In the film American Hustle, a fictional charater makes the fictional statement that Paul Brodeur said that microwaves cook the nutrients out of food. So Brodeur gets to tell the movie industry how to write the fictional dialog of its fictional characters? Sounds like a SLAPP to me.
Michael Hawkins v. Christian Slater (Superior Court case)
For a brief shining moment in Camelot, Christian Slater reunited with his actor father, Michael Hawkins. They had had a turbulent relationship, but Slater announced in an interview that he was happy to have his father back in his life, describing his father as a “manic-depressive schizophrenic.” His father sued for defamation, and Slater brought an anti-SLAPP motion. So Hawkins thinks that Slater is qualified to offer a medical diagnosis, such that his statement would be taken as a verifiable statement? Sounds like a SLAPP to me.
Rusheen v. Cohen (Supreme Court Decision).
The Supreme Court case that tells all about abuse of process claims. Every abuse of process claim will be met with an anti-SLAPP motion. Here is the information you need to determine if your abuse of process claim will survive that motion.
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Supreme Court Finally Applies Anti-SLAPP Statute to Mixed Causes of Action
On August 1, 2016 the California Supreme Court issued an opinion on anti-SLAPP law that will likely prove to be the most impactful decision of this decade.
The Supreme Court used the issues presented by the case of Baral v. Schnitt to finally clear up a split of authority that has existed since at least 2004, namely, what to do with mixed causes of action.
The history of the Courts’ struggles with mixed causes of action.
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