anti-SLAPP motions
Does an anti-SLAPP appeal stay the action? [Updated]
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.
The truth is that an appeal from a ruling on an anti-SLAPP motion (granting or denying) does as a general rule stay the action, but there is some nuance. Certain activities can still continue, and the stay may not apply to all claims and parties.
This week, we were surprised that the opposing counsel did not file any opposition to our motion for attorney fees, following our successful anti-SLAPP motion. I was hopeful that the lack of a response was intentional, based on the modest fee request. But I suspected that it had something to do with the appeal he had filed. Upon receiving my Notice of Ruling, granting the requested attorney fees, he called to say that he was shocked that I would go forward with the motion, knowing an appeal was pending. But as I explained to him, an appeal does not stay a motion for attorney fees.
An appeal also does not stay collection of those attorney fees.
In another case, we 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 collect those attorney fees while an appeal is pending.”
Quick sidebar: This is a common misunderstanding, because it is true that the collection of “routine” fees and costs is stayed just by filing an appeal. No appeal bond is required. See Chapala Mgmt. Corp. v. Stanton, 186 Cal.App.4th 1532, 1546 (2010). But cases like Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1434 (2001) have held that attorney fees awarded following an anti-SLAPP motion are more akin to sanctions, and collection is not stayed pending appeal. To stop collection, an appeal bond must be posted.
We garnished the attorney’s wages and received 25% of each of her paychecks while we awaited a ruling on the appeal. We defeated her appeal, and this time she took us up on our offer for her to immediately pay the remaining balance plus the additional fees incurred to oppose the appeal, thereby saving herself the cost of another attorney fee motion and continued garnishment.
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, and explains what is stayed pending appeal. These are the facts as summarized by the Supreme Court. Read the rest of this entry »
What is a SLAPPback Action?
I am often asked to pursue SLAPPback actions, and find that the requests usually arise from a misunderstanding of the basis for such an action. I will explain here the basics of a SLAPPback action and why, at least in my practice, the circumstances that would justify a SLAPPback seldom arise.
What is a SLAPPback Action?
SLAPPback actions are created and governed by Code of Civil Procedure section 425.18. Section 425.18(b)(1) defines SLAPPback:
“SLAPPback” means any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.
That simple definition should clear up much of the confusion. A SLAPPback is simply a malicious prosecution action brought by a defendant who successfully brought an anti-SLAPP motion that resulted in a dismissal of the original action. It could also take the form of an abuse of process action, but that will seldom be the case, as I will explain below.
Note also that a SLAPPback is an entirely new lawsuit. The defendant, having successfully extracted himself from legal proceedings by way of a successful anti-SLAPP motion, jumps right back in by filing a malicious prosecution action. I sometimes get requests to bring a “SLAPPback motion,” but as you can see there is no such beast.
Why are SLAPPback actions so rare?
Conceptually, every successful anti-SLAPP motion could be followed by a SLAPPback action. By definition, if an action is dismissed on the basis of an anti-SLAPP motion, then it had no merit. To survive an anti-SLAPP motion the plaintiff need only show that his claim has “minimal merit.” If it could not even meet that standard, then it almost certainly was brought without probable cause; one of the necessary elements of a malicious prosecution action. Read the rest of this entry »
The SLAPP is the Lawsuit
Sometimes I get so far into the weeds of SLAPP law, that I fail to explain the fundamentals. At least once a week a get a call from someone saying they’ve read one or more of my articles, and want to retain me to bring a SLAPP action.
Changing the facts to maintain privacy, today’s caller was thrown out of a movie theater for doing his own Mystery Science Theater 3000. He thought the crowd would be amused by his ongoing commentary about what was occurring on the screen. They weren’t.
He concluded that was an infringement on his right of free speech, and wanted to “bring a SLAPP suit.”
Back to basics.
SLAPP stands for Strategic Lawsuit Against Public Participation. A SLAPP is a legal action filed in order to chill someone’s exercise of public participation, whether that takes the form of speech in a public forum, or by way of litigation, to provide two examples.
So the SLAPP is the lawsuit. An anti-SLAPP motion is a RESPONSE to a lawsuit that is based on speech or conduct that is protected by the anti-SLAPP statute. Read the rest of this entry »
Use an anti-SLAPP Motion Instead of a Motion for Summary Judgment
It is typically the case that as I review a complaint for the first time, I spot the allegations that are based on protected speech, and then consider whether the plaintiff will be able to present a prima facie case under the second prong of the anti-SLAPP analysis.
But lately a number of cases have presented a situation where I immediately recognize that the plaintiff is facing a nearly impossible burden to show a prima facie case. For example, I have had a number of cases with claims for Negligent Infliction of Emotional Distress (NIED). In case you did not get the memo, NIED does not really exist as an independent claim; it is just a claim for negligence. But since a defendant has no general duty to avoid inflicting emotional distress on a plaintiff, a claim captioned as a claim for NIED is almost always dead on arrival. (I have provided the case authority at the end of this article.)
So instead of first seeing the protected speech, I spot the failure of the second prong of the anti-SLAPP analysis, and then focus on whether that defective claim was based on protected speech. If so, it presents the opportunity to use an anti-SLAPP motion as a motion for summary judgment.
Allow me to provide a recent example. While I tell the tale, see if you can spot the SLAPP.
The Indemnity Agreement
As always, changing the facts slightly to protect their privacy, my clients (we’ll call them “Clients”) entered into a service contract with Joe Dokes, Inc. The contract contained an indemnity provision, providing that Clients would be responsible for any costs, attorney fees, and damages incurred by Joe Dokes, Inc. as a result of any litigation arising from the contract.
Clients timely made all payments under the contract until they caught Joe Dokes, Inc. acting in a fraudulent manner, and stopped paying on that basis. Joe Dokes, Inc. sued Clients for the fairly nominal amount still due under the contract, and Clients cross-complained against Joe Dokes, Inc. and Joe Dokes individually for the fraud.
Having been sued individually, Joe Dokes came up with the brilliant idea to cross-complain back against Clients under the indemnity provision contained in the contract. The contract was between my clients and Joe Dokes, Inc. This fact was specifically alleged in the original complaint by Joe Dokes, Inc. Nonetheless, Joe Dokes alleged in his individual capacity that he was the sole shareholder and principal of Joe Dokes, Inc., and was therefore a party to the indemnity agreement. All of his causes of action were based on indemnity, pursuant to that agreement.
So what is an attorney to do?
Posted in anti-SLAPP motions, Case Results | Tags: Negligent Infliction of Emotional Distress | No Comments »
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 »
Posted in anti-SLAPP motions, Case Results | Tags: Civil Harassment Restraining Order | 3 Comments »
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.
Podcast: Play in new window | Embed
Subscribe: RSS
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.
Podcast: Play in new window | Embed
Subscribe: RSS
Posted in anti-SLAPP motions, Case Results, Podcasts | Tags: Bell v. Feibush, Igal Feibush | No Comments »
Click "Amazon Music" for all episodes of California SLAPP Law Podcast