anti-SLAPP motions

Three Common Mistakes by Defense Counsel on Anti-SLAPP Motions

Mistakes

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.

Mistake #1 – Failing to follow Baral v. Schnitt.

An anti-SLAPP motion is a “Special” Motion to Strike, but it remains a motion to strike.

Baral v. Schnitt sets forth the process for seeking to strike individual allegations of a complaint. It begins with IDENTIFYING those allegations in the notice of motion. If you fail to identify what you are seeking to strike, then the motion becomes an “all-or-none” proposition. If all you ask for is that the complaint, or individual claims, be stricken under the anti-SLAPP statute, then you will lose if there are sufficient allegations for the claim to survive.

In this case, the argument could be made that some of the allegations should be stricken. For example, the attorney had alleged that it was defamatory for the Defendant to state that the house was a “hovel.” That’s a matter of opinion (although I would have argued that the statement still questioned the professionalism of the contractor, and case law holds that such background statements do not necessarily need to be stricken).

Instead of identifying what he wanted stricken, defense counsel had simply stated that the court could strike individual allegations. It doesn’t work that way. It would violate due process for the court to strike allegations, when I have not even been informed which allegations the Defendant is seeking to strike. Such would not fly on a traditional motion to strike, so it is equally inappropriate on a special motion to strike.

Mistake #2 – Thinking that discussions of investigations are privileged.

I have seen this so many times, and I’m not totally sure it’s a mistake, since some judges appear not to understand the law.

Here’s how it works. If a party is in court, and testifies that the opposing party cheats on their taxes, they are safe from a defamation claim, even if the statement is false. The testimony would clearly be protected by the litigation privilege.

But if that same person goes onto the internet, and says, “hey world, opposing party cheats on their taxes, and I testified about it in court today,” that does not fall under the litigation privilege. To fall under the litigation privilege, the speech must ADVANCE the purposes of the litigation. Admittedly, that can be a broad standard. I’ve seen situations where an out of court statement to a non-party is still found to fall under the litigation privilege, because it is determined that the party could have been a potential witness, and it was therefore necessary to make the statements to that party. But blogging about a lie you told in court will not be protected, even though it was “about” the matter being litigated.

In our case, the defense counsel argued that everything the Defendant wrote on line was protected, because there had been an investigation by the California State Licensing Board, so he was really just discussing that case. That’s not how it works.

Mistake #3 – Failing to recognize that you won’t be able to overcome the Plaintiff’s declaration.

There is no weighing of evidence on an anti-SLAPP motion. The Plaintiff’s evidence must be taken as true, unless it is deficient for some other reason, such as being based on hearsay.

Before spending significant time and money on an anti-SLAPP motion, defense counsel must always first ask, “will Plaintiff be able to present evidence that, if taken as true, would make him the prevailing party?”

Simple example. I represented an oral surgeon. He sued for defamation when the Defendant posted a number of outrageous lies about him. She was obviously unhappy with the work, but she had to embellish. In her online review, she added the claim that my client had pushed a scalpel through her cheek. She knew this was untrue. Indeed, she had posted pictures following the procedure, thinking they showed that she was unnecessarily “puffy.” (An outrage to be sure.) They did not show any puncture wound.

So why did the attorney think he could successfully bring an anti-SLAPP motion under these facts? My client’s declaration truthfully stated that he had not punctured the patient’s cheek during the process. That had to be taken as true, even if Defendant filed a declaration stating that he “really, really, really did pierce my cheek.”

In the contractor case, the Defendant’s postings were basically all about what she perceived to be defective work, and how my client was in cahoots with the insurer. Why would the attorney think the motion would be granted? My client simply truthfully attested to how all the work was done properly, and that he was not in cahoots with the insurer. Motion denied.

The process I follow when I am considering an anti-SLAPP motion is to first determine if any of statements we are defending can be shown to be false with a simple declaration from the Plaintiff. (Which is not to say my client’s statement was false, only that Plaintiff can so claim.) If so, then I only proceed if there are other individual allegations I want to strike, that would not be vulnerable to a declaration, such as statements of opinion or other statements that would be absolutely privilege, despite what the Plaintiff might say.

 

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The Top Three anti-SLAPP Cases Every Defense Attorney Cites, Whether they Apply or Not

anti-slapp slippery slope

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 »

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SLAPP031 – A Gambler Bets Wrong on the Anti-SLAPP Statute

California SLAPP Law

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?

anti-SLAPP appeal stay

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 »

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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

California-SLAPP-Law-Cover-300x300 (1)

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

Mixed Messages Poor Communication Misunderstood

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.

Read the rest of this entry »

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SLAPP020 – Sixth District Weighs in on Admissibility of Yelp Reviews and the Law on Inferences

California-SLAPP-Law-Cover-300x300 (1)

In Episode 20 of the California SLAPP Law Podcast, we discuss important Evidence Codes, and my VINDICATION by the California Court of Appeal.

The vindication comes in the form of a published opinion from the Sixth District Court of Appeal. I was brought in as co-counsel to first chair an internet defamation trial in Santa Cruz, representing a client (an attorney) we will refer to as “Esquire”. We were also defending a cross-complaint for breach of a commercial lease. The trial was assigned to Judge Ariadne Symons, who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers.

At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint for defamation and breach of the covenant of quiet enjoyment. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence.

I was confident that the matter would be reversed on appeal, and I was looking forward to the Court of Appeal’s opinion, not just for the benefit of the client and my own vindication, but because until the Court of Appeal instructed Judge Symons on fundamental evidentiary law, a lot of parties in her court were going to be deprived of justice. Read the rest of this entry »

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Can band members sue for wrongful termination?

Eddie Money is looking for two tickets to paradise in the form of an anti-SLAPP motion to get him out of what certainly appears to be a ridiculous suit.

His drummer, Glenn Symmonds, sued Eddie Money for wrongful termination when Money decided to use his son’s band for appearances. Symmonds claimed this “termination” was based on his age and because he has cancer. When those claims didn’t seem to be gaining much traction, Symmonds added his girlfriend to the mix, claiming that he suffered emotional distress from witnessing Money sexually harassing her, citing an incident where he held the mic between his legs like a penis.

Money has responded to the complaint with an anti-SLAPP motion, asserting that the manner in which he presents his music, and hence the make-up of his band, is a protected form of expression.

“The fact that Eddie did not invite Plaintiff to rejoin the band had nothing whatsoever to do with his age,” states the brief. “Nor did it have anything to do with any illness or disability that he suffered. It was based entirely on how inappropriately Plaintiff reacted upon hearing that Eddie wanted to tour with his adult children during the summer.”

I can’t opine on the likely outcome of the motion, because I don’t have knowledge of the evidence that both sides can bring to bear. But I would predict that the motion will satisfy the first prong of the anti-SLAPP analysis, since Money’s performance is a form of expression.

And I can opine that Symmonds needs to get a life. Apparently not only was Money not bothered by Symmonds’ cancer, he held fundraising concerts for him. No good deed goes unpunished.

[UPDATE — February 5, 2019] 

The case took a long and winding road, but ultimately the Court of Appeal concluded that while “we do not suggest that employment decisions as a general matter are acts in furtherance of the right to petition or free speech for anti-SLAPP purposes, here, as we have explained, Mahoney’s [Money’s legal name] decision to terminate Symmonds . . . did implicate Mahoney’s free speech rights.” On that basis, the court overruled an earlier denial of the anti-SLAPP motion and dismissed Symmonds’ action against Money.

[UPDATE — September 13, 2019]

Eddie Money died from complications of esophageal cancer at age 70. If there’s a rock and roll heaven, then I’m sure they have a hell of a band.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

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