anti-SLAPP motions

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

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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 »

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.

SLAPP018 – All You Need to Know About Anti-SLAPP Motions in Federal Court

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In episode 18 of the California SLAPP Law Podcast, I discuss an anti-SLAPP motion I decided NOT to pursue, and why. We discuss the case of Weinberg v. Feisel (2003) 110 Cal.App.4th 1122.

Then we dive deep into the pros, cons, and frustrations of bringing anti-SLAPP motions in Federal Court. Since 1999, the Ninth Circuit has recognized that the California anti-SLAPP statute can be applied to cases in Federal Court, but the motion you bring there is a very different animal from what is pursued in State Court. As part of our discussion on anti-SLAPP motions in Federal Court, we cover the following cases:

Erie Railroad Company v. Tompkins (1938) 304 U.S. 64

Swift v. Tyson (1842) 41 U.S. 1

United States Newsham v. Lockheed Missiles and Space Co. (1999) 171 F.3d 1208

Makaeff v. Trump University (2013) 715 F.3d 254

Verizon Delaware, Inc. v. Covad Communications (2004) 377 F.3d 1081

Globetrotter Software, Inc. v. Elan Computer Group (2004) 362 F.3d 1367

SLAPP016 – Appealing a Ruling on an Anti-SLAPP Motion

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In Episode 16 of the California SLAPP Law Podcast, we discuss (1) when you can join with another defendant’s anti-SLAPP motion, and whether it is a good strategy to do so; (2) what the Courts of Appeal are doing to deal with all the appeals from anti-SLAPP motions; and (3) likely changes to the automatic right of appeal.

We dive deep into the case of Hewlett-Packard Co. v. Oracle (2015), in which the Sixth District decried the abuse of the automatic right of appeal from rulings on anti-SLAPP motions, and took the unusual step of suggesting to the California Legislature how it could be fixed. The California Society of Entertainment Lawyers has offered the change set forth in the decision as a proposal to the legislature via the Conference of California Bar Associations.

We also discuss the cases of Decker v. UD Registry, Inc. and Barak v. Quisenberry Law Firm, and examine their very different views on whether one defendant can join another defendant’s anti-SLAPP motion.

Finally, in the post show, I introduce you to a brand new service that provides access to prior tentative rulings of trial court judges, which are a great resource when preparing important motions that will be heard by those judges.

SLAPP015 – It’s Never Too Late to File an Anti-SLAPP Motion

California SLAPP Law Podcast

In Episode 15 of the California SLAPP Law Podcast, we discuss (1) the perils of overreaching in your anti-SLAPP motions (making iffy challenges to causes of action can come back to bite you, even if you win), and (2) why you should NEVER assume it’s too late to bring an anti-SLAPP motion , and some strategies to keep in mind when you do bring an anti-SLAPP motion late in the game.

We also discuss the case of Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, which held [spoiler alert] that no leave is required to file a late anti-SLAPP motion.

We examine two cases that discuss whether it is an abuse of discretion to refuse to consider a late anti-SLAPP motion. Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 held that it is never an abuse of discretion for a trial court to refuse to consider a late-filed anti-SLAPP motion, regardless of the merits, and Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, which held that it can be an abuse of discretion to allow an anti-SLAPP motion to be brought too late in the action.

(But the title says it’s never too late to file an anti-SLAPP motion. How can you reconcile that with the holding of Platypus? Listen to Episode 15 to find out!)

SLAPP011 – Six Tips to Win Your Motion for Attorney Fees Following an Anti-SLAPP Motion

California SLAPP Law Podcast

In Episode 11 of the California SLAPP Law Podcast, I provide you with six tips to win your attorney fee motions following a successful anti-SLAPP motion.

There are so many unscrupulous attorneys who inflate their fee applications, that some judges feel the need to reduce the fees requested on any motion for attorney fees. To make sure you don’t get lumped in with the other attorneys, here are the ways to show the judge that every dollar is justified.

In other news, I bring you up to speed on Demetriades v. Yelp, which was discussed in Episode 10. Demetriades is suing Yelp to enjoin it from falsely advertising that its reviews are trustworthy. Yelp brought an unsuccessful anti-SLAPP motion, and even though the Court of Appeal held that the anti-SLAPP motion should be denied, Yelp is not going quietly into the night. It is seeking review by the Supremes.

Finally, we discuss a very entertaining case at Morris & Stone. As discussed in Episode 9, a company filed a bogus lawsuit against our client in an attempt to prevent him from competing. We responded with an anti-SLAPP motion, which stayed all discovery. The plaintiff is not pleased, since it wanted to use discovery to harass our client. I predicted that it also would not go quietly into the night, and that it would seek relief from the discovery stay. You’ll hear the arguments plaintiff’s counsel (unsuccessfully) made as to why the discovery stay does not apply to them. I’ll show you how I defeated their ex parte application as well.

More Exciting Anti-SLAPP Victories at Morris & Stone

Today we follow up on a couple of our cases, which were reported on the California SLAPP Law Podcast, episodes 8 and 9, which led to anti-SLAPP victories.

The Case of the Evil Yogurt Maker

In Episode 8, I told the tale of the Evil Yogurt Maker. I changed the nature of the businesses involved so I could tell the story, and made the plaintiff a yogurt maker. My client had called him out on some false advertising claims, and the Evil Yogurt Maker responded by bringing a defamation action.

Our client was a sophisticated businessman who had really done his research. Before calling us, he already knew about the anti-SLAPP laws in general, and was familiar with Code of Civil Procedure section 425.17 in particular. That is the section that exempts certain business versus business actions from the anti-SLAPP statutes.

Our client had been advised by other attorneys that he could not respond to the defamation action with an anti-SLAPP motion, specifically because of section 425.17. We disagreed. Although this was a business versus business action, section 425.17 has a number of requirements before it applies, including the fact that the alleged “defamer” had to be directing its remarks to likely customers. Here, the remarks had been directed to regulatory agencies.

Upon the filing of the anti-SLAPP motion, the Plaintiff cried “Uncle!” and the case went away.

Using Discovery to Harass

This one involves a victory on the way to an anti-SLAPP victory. In Episode 9, and in this article, I discussed the case we are handling, wherein a company is attempting to use the litigation process to keep our client from competing. In typical fashion when a company is trying to thwart competition, the Plaintiff company filed an action, making the usual nonsensical claims that the defendant is using trade secrets. In these actions, the Plaintiff knows they will never prevail if the case goes to trial, but they attempt to make the process so expensive and burdensome that the defendant agrees to find another line of work. (Perhaps California next needs to pass legislation that applies an anti-SLAPP approach to actions designed to frustrate competition.)

In these sorts of actions, the Plaintiff’s two primary harassment tools are injunctions and discovery. Prior counsel in the action had already defeated Plaintiff’s attempt to obtain an injunction, so Plaintiff’s counsel was using discovery and threats of motions to compel to harass.

As a new form of harassment, Plaintiffs then amended their complaint to add four causes of action for defamation, and we responded with an anti-SLAPP motion, which stayed all discovery in the action.

I predicted that, contrary to all law, Plaintiff’s counsel would go to court and ask for leave to continue with discovery relating to the other causes of action and defendants. You see, section 425.16 specifically provides that a plaintiff can request leave from the stay in order to conduct discovery on issues related to the anti-SLAPP, but that discovery is very proscribed. It not only has to be related to the issues raised in the anti-SLAPP motion, it must go to specific defenses. Indeed, the defendant can eliminate the request for discovery by simply agreeing to waive whatever defense the plaintiff is requesting leave to conduct discovery on. Under no circumstances would a plaintiff be permitted to continue discovery on the other causes of action not related to the special motion to strike.

But that didn’t keep Plaintiffs from asking. One could say it never hurts to ask, I suppose, but isn’t there something to be said for intellectual integrity?

We received notice of an ex parte application, wherein Plaintiff’s counsel was seeking an earlier hearing date on a motion for relief from the discovery stay. Due to docket conditions, our anti-SLAPP motion won’t be heard until February 2015, and the first available date for the motion for relief from the discovery stay was March 2015. Since that is after the anti-SLAPP motion, it will be moot.

Here is how we opposed the motion for an earlier hearing date. We acknowledged that of course motions to shorten time should be liberally granted, but here the request was for a pointless motion. Plaintiff isn’t requesting leave to conduct necessary discovery related to the anti-SLAPP motion, which is the only discovery that is permitted following the filing of the motion. Here, Plaintiff specifically requested leave to conduct ONLY discovery NOT related to the anti-SLAPP motion. We therefore argued that the requested relief was pointless. This court’s docket is so backed up that it takes seven months to have a motion heard. Why give one of those precious motion slots to someone bringing a pointless motion?

The court apparently agreed. Motion DENIED.

SLAPP010 – Travolta and Yelp Anti-SLAPP Motions

California SLAPP Law Podcast

In this week’s podcast, we look at two unsuccessful anti-SLAPP motions that were decided this week, and examine where the attorneys went wrong.

Yelp continues to get into mischief. In Episode 4 of the California SLAPP Law Podcast, we discussed the case of Yelp v. McMillan Law Group, wherein Yelp is suing a law firm, claiming that it posted fake reviews, and that Yelp was damaged as a result. McMillan Law Group filed an anti-SLAPP motion, and we are awaiting the results.

Now, in the case of Demetriades v. Yelp, the tables have been turned, and the plaintiff is essentially suing Yelp for its fake reviews about itself. Yelp tries to promote the notion that its reviews are filtered and trustworthy, despite all evidence to the contrary. Demetriades, who has had several bogus reviews written about his restaurant, didn’t try to sue Yelp for those bogus reviews, but instead sued Yelp for claiming that reviews on the site are trustworthy. Yelp brought an anti-SLAPP motion, which was DENIED.

We also examined Douglas Gotterba v. John Travota, where Travolta’s former pilot from the 80’s has decided to publish a tell-all book about Travolta, that apparently alleges a homosexual lifestyle. When Travolta threatened to sue, claiming Gotterba was subject to a confidentiality agreement, Gotterba did exactly what you are supposed to do, and filed a declaratory relief action.

Basically, Gotterba is simply asking a court to determine if he is in fact subject to a confidentiality agreement. If so, he will slunk away into the night. If not, then he will be free to publish the book. Great solution, right?

Not according to Travolta’s attorneys. they claimed that Gotterba’s action was really just an attempt to get Travolta’s attorneys to stop sending warning letters to publishers. Since pre-litigation letters are privileged, they brought an anti-SLAPP motion against the declaratory relief action.

The Court of Appeal ruled that the letters may have triggered the action, but they are not the basis of the action. Motion DENIED.

SLAPP009 – Scope of Discovery after Anti-SLAPP Motion

California SLAPP Law Podcast

It was a great anti-SLAPP week at Morris & Stone. Today we discuss two of our motions, and the result of last week’s Evil Yogurt Maker case. We will examine the scope of discovery following the filing of an anti-SLAPP motion, and apply those standards to a pending motion.

Specifically, I discuss the case of Britts v. Superior Court (2006) 145 Cal.App.4th 1112. In Britts, the defendant filed an anti-SLAPP motion on the same day that his opposition to a motion to compel was due. He argued that under the plain wording of CCP section 425.16(g), the motion stays all discovery “proceedings”, and therefore he was not required to file any opposition to the motion. The trial court disagreed, and granted the unopposed motion to compel, and awarded $5,000 in sanctions.

Britts took the matter up on a writ, and the Court of Appeal ordered the trial court to vacate the ruling on the motion to compel and for sanctions, holding that the statute means exactly what it says; an anti-SLAPP motion stops all discovery proceedings, including any pending discovery motions.

The trial court had also made a strange ruling (on an earlier anti-SLAPP motion in the case) that the defendant was not entitled to all the attorney fees incurred on the motion, because he had failed to meet and confer with opposing counsel. In other words, the court felt that if plaintiff’s counsel had simply been informed that one of the causes of action was a SLAPP, the complaint could have been amended and the motion avoided. That was not a holding from the case, but I explain why that reasoning is terrible and, if followed, could constitute malpractice.

I also discuss the case of Blanchard v. DirecTV (2004) 123 Cal.App.4th 903. In Blanchard, the court deliniated the scope of permissible discovery after an anti-SLAPP motion has been filed.  As set forth in CCP section 425.16(g), a plaintiff must show good cause before taking ANY discovery after an anti-SLAPP motion has been filed. Good cause means ONLY discovery relevant to the Plaintiff’s burden of establishing a reasonable probability of prevailing on the claim. Discovery that is NOT relevant to a legal defense being asserted by the Defendant in the anti-SLAPP motion is not permitted.

Given that Blanchard permits only discovery related to potential defenses by the defendant, the case of Balzaga v. Fox News (2009) 173 Cal.App.4th 1325 came to the logical conclusion that if a plaintiff seeks leave to pursue discovery on a given defense, the  defendant can prevent that discovery by informing the court that it is waiving that defense.

Finally, I discuss the case of Tutor-Saliba Corp v. Herrara (2006) 136 Cal.App.4th 604. This case sets forth the discretionary standard for granting leave to permit discovery following the filing of an anti-SLAPP motion, and held that a trial court’s decision to disallow discovery “will not be disturbed unless it is arbitrary, capricious, or patently ABSURD.” (Emphasis added.)

SLAPPs: Birds do it, bees do it, even big law firms that should know better, do it.

angry photoI’m not so sure about that title, but it made me chuckle. The point of this article is that attorneys who create SLAPPs run the gamut, including large firms, who would presumably have an attorney or two who should know better. This latest case in my office is an object lesson as to how SLAPPs come about, and why the California’s SLAPP statute was such a great idea.

The case is the typical scenario where my client went off and started a business to compete with his former employer, and the former employer doesn’t like that one bit. The company sued, claiming the usual misappropriation of trade secrets, interference with prospective economic advantage and the like. My client cross-complained for breach of contract, because the company stopped paying certain significant residuals to which he is entitled. We will ultimately win, but the company is going to do what it’s going to do.

“Don’t you dare tell the world about how we’re going out of business.”

One thing it decided to do was to use the action to silence any criticism by my client. My client sent out a cautionary email to employees of the company, warning them about the shenanigans of the company. He explained that the company had not only breached contracts by cutting off his residuals, it had done the same to someone else. The email then directed the recipients to reports about the company published by Moody’s and Bloomberg, as well as press releases by the company itself, which all stated that the company is in some pretty dire financial straights.

He also sent out a press release, summarizing some events in the litigation. Specifically, when we took the deposition of the former vice president of the company, he took the Fifth and refused to answer any questions. The press release accurately reported those facts.

The company is represented by a law firm I had never heard of before this case, but according to its letterhead, it has some 30 offices, with five or six of them right here in California. It must be a pretty big firm.

The company and its attorneys apparently decided that while they were doing what they were going to do, my client is not allowed to tell anybody about the litigation or point to news stories about the finances of the company. They amended their complaint, adding four cause of action for libel, trade libel*, false advertising and unfair competition, all based on the email and the press release.

Under the heading of you can’t make this stuff up, here are some of the things they alleged were defamatory.

“It’s not 100% certain we are going to fail, it’s only close to 100%.”

My client provided a link to the article by Moody’s, and he said, “as one analyst says, the chances of [the company] defaulting on its [debts] is 100%.”

That’s defamatory, according to the complaint, because the analyst actually said, “the chances of [the company] defaulting on its [debts] is close to 100%.” So, apparently in opposing counsels’ world, that difference is defamatory because someone wanting to invest in the company would be put off by reading that the chance of default is 100%, but if they knew it was only “close to 100%” then they would be pulling out their checkbooks.

My client also wrote that his “complaint against [the company] alleges twelve causes of action, including . . . breach of the covenant of good faith and fair dealing . . . among others.”

Why is that defamatory? Because according to the complaint, my client did NOT file a complaint, he filed a CROSS-complaint, and the cause of action for breach of the covenant of good faith and fair dealing was thrown out on demurrer (before I was involved).

So, again, for that to have caused any loss of reputation, we have to assume that someone considering working for the company or investing in it would say, “I’m fine with a company that doesn’t pay its employees, so long as that’s only alleged in a cross-complaint, and so long as there is no cause of action for breach of the implied covenant. But if there’s a COMPLAINT that alleges breach of the implied covenant, the deal’s off!

This is the precise sort of case for which the anti-SLAPP statute was designed. In my never to be humble opinion, the causes of action were added purely out of a desire to gain leverage in the action, and a quick disposal of that sort of claim is the purpose of the anti-SLAPP statute. This was the quintessential SLAPP, and you are left scratching your head as to how a firm could have blundered into it, unless . . .

Crazy like a fox?

Since the SLAPP was so obvious, it has not escaped me that the firm may be crazy like a fox. It just smacks of a set-up. As stated, at the end of the day the company will be writing my client a substantial check. When I first came into the case, opposing counsel was fighting to postpone the trial, trying to put off that eventuality. It takes about six months to have a motion heard in this courtroom, and the judge does not move up motions on an ex parte application unless there has been a cancellation. If opposing counsel checked my background and saw that anti-SLAPPs are a big part of my practice, they may have filed an intentional SLAPP as a means to delay the action. That may seem crazy given the attorney fees that will come from the successful motion, but given the finances of the company, the goal might just be to push this case beyond a bankruptcy filing.

Still, I was recently retained to handle an appeal in a case where the judge improperly denied an anti-SLAPP motion, and then compuounded the error by refusing to give a jury instruction on protected speech. The jury awarded substantial damages based on protected speech. That case illustrates why it is crucial to get protected activities out of the action, even if it is clear that the plaintiff may have filed a SLAPP for purposes of delay.

*A rookie mistake to allege trade libel. It seldom makes sense to allege trade libel because the elements are far harder to meet than an action for libel, and it certainly doesn’t make sense to allege trade libel when you are already alleging libel.

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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