Case Results

Understanding Anti-SLAPP Evidence

police defamation

Another great victory by Morris & Stone, and an important lesson on anti-SLAPP evidence.

Our tale begins with a father who loved his daughter. We’ll call him Dad, and his daughter will be Rose.

Dad thought married life was good, and he and his wife begat their wonderful daughter Rose. But his wife (we’ll call her Mom) apparently saw greener grass, and divorced Dad to marry New Guy, meaning that Rose would now be spending time with New Guy.

Reports from Rose about her time with New Guy were disturbing. She claimed that New Guy had spanked her, and one time she returned home with a badly bruised arm she blamed on New Guy. During the ongoing custody battle, Dad reported his concerns about New Guy to the court in various court documents, stating that based on what Rose was reporting, he was being too forceful with Rose. Dad freely admitted he had no personal knowledge of any of this; he was only reporting what Rose was telling him. What else was he supposed to do?

On one occasion, when Mom came to pick up Rose, Rose was particularly agitated about having to go stay with Mom and New Guy, so after reluctantly turning Rose over for visitation, Dad called the police for a welfare check on Rose.

New Guy took umbrage with all the accusations of possible abuse, so he filed an action for defamation against Dad, based on the statements by Dad in (1) the court documents, and (2) the report to the police. Dad did some research, learned about anti-SLAPP motions, and of course called moi, the Sultan of Slapp.

But to his credit, New Guy had done his homework as well. He had found Penal Code section 11172, which allows one to sue a defendant for defamation for making a false “report” of child abuse. He claimed that the statements in the court documents were “reports” as was the report to the police.

I brought an anti-SLAPP motion.

Game Over Anti-SLAPPAs to the statements in the court documents, that was a no-brainer. A statement in a court document is not a “report” within the meaning of Section 11172, so those statements enjoyed an absolute litigation privilege. As to those, New Guy was going down. I love when a plaintiff alleges clearly protected speech of this sort, because the second prong of the anti-SLAPP analysis become superfluous. If the complaint is based on speech that falls under an absolute privilege, there is no evidence that can be presented that will satisfy the second prong. Thus, a successful anti-SLAPP motion is virtually guaranteed; the only issue being whether it will be a complete or partial victory.

But the report to the police was a different story. If Dad had indeed made a false report of child abuse to the police, that would fall squarely under section 11172. To defeat that claim, I had to do a little sleuthing.

Dad told me that he had not made any report of child abuse to the police; he had only requested a check welfare. Contrary to New Guy’s claims, a check welfare request is not a report of child abuse. New Guy argued the usual nonsense, stating that it must have been a report of child abuse, because “armed police arrived to investigate.” In these circumstances, it is always stated that the police were armed, to add to the drama. As opposed to what? Is the alternative that they would have left their guns in the car if they were only there for a welfare check? Anyway, I pulled the police report, and it clearly stated the Dad had only requested a check welfare. No claim of child abuse.

So why had New Guy alleged that Dad had reported child abuse? Well, in the declarations they filed in opposition to my anti-SLAPP motion, New Guy and Mom both stated that the police told them that they were there on a report of child abuse.

Here comes the key takeaway on anti-SLAPP evidence, so your attention please.

For a complete victory that would entirely extract my client from the case, I had to dispose of both the statements made in the court documents, and the report to the police. To that end, I objected to the declarations by Mom and New Guy as to what the police officers had said to them, because that was clearly hearsay. Indeed, it’s at least triple hearsay. When Dad called the police, someone in dispatch would have taken the call, and provided the information to the dispatcher. The dispatcher would then radio the information to the police in the field, and those officers then spoke to Mom and New Guy. You can see that they were multiple steps away from knowing what was actually said by Dad.

The trial court sustained my objection to the alleged comments by the police officers, and on that basis granted my anti-SLAPP motion in its entirety. New Guy appealed. While the appeal was proceeding, I garnished New Guy’s wages for the attorney fees incurred.

Oral Argument.

When I prepare for oral argument in front of the Court of Appeal, I read and summarize every case cited by both sides. I never want to experience that horrible moment when one of the Justices asks, “but how do you distinguish this case from the Johnson decision?” If I don’t recall the Johnson case, I just glance down at the squib I have prepared for that case to put me on track.

But in this case, the Justice asked about a case that neither side had referenced in their papers. “In terms of the excluded evidence, how do you distinguish this case from Sweetwater?”, asked one of the Justices. Thankfully, I had done a deep dive into and wrote an article about that opinion when it was published in 2019, so I was familiar with it, but the Court was placing great weight on how the Supremes had viewed evidence offered in the anti-SLAPP context. My article had not focused on that aspect of the opinion. I provided an answer that I will choose to believe was brilliant, but if I actually checked the recording, I probably came across like Ralph Kramden saying “homina homina homina.”

The holding of Sweetwater Union High School District v. Gilbane Building Co.

In Sweetwater, a School district filed action against contractors, seeking to void contracts for construction projects and to require that the contractors disgorge all sums that district paid to them under contracts, alleging that certain representatives from contractors’ companies engaged in a scheme with district officials that violated statute prohibiting public officials from being financially interested in any contract. The District alleged that the defendants gave meals, vacations, and event tickets to board members and their families and friends, and made contributions to various campaigns, charities, and events on the officials’ behalf.

Defendants brought an anti-SLAPP motion, claiming the complaint arose from constitutionally protected political expression. In opposition to the motion, the District offered the written plea deals from some of the defendants, wherein the factual narrative confirmed that gifts had been given to board members with the specific intent of influencing the award of construction contracts. The District also relied on excerpts from the grand jury testimony of several witnesses.

Defendants contended that this evidence was inadmissible hearsay. However, the trial court disagreed and denied the anti-SLAPP motion based on that evidence (finding that with the evidence, the District has shown it was likely to succeed). The Court of Appeal affirmed the denial, and the matter was taken up by the California Supreme Court.

The Supremes provided a very detailed analysis of the evidence offered, that need not be set forth here. Rather, what is important was the Court’s ruling on how to handle facially inadmissible evidence, where there is a chance the inadmissibility could be overcome at trial. I normally don’t set forth so much of the decision, but I find the Court’s analysis very interesting. Plus, you attorneys may well want to cut and paste this into future briefs. If you don’t want all the details, skip down to the “Summary” heading below.

In addition to submission in the proper form, courts have long required that the evidence relied on by the plaintiff be admissible at trial. Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 explained that unless “the evidence referred to was admissible, or at least not objected to, … there would be nothing for the trier of fact to credit.” (Wilcox, at p. 830.) Similarly, Evans v. Unkow (1995) 38 Cal.App.4th 1490, observed that “[a]n assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time. [Citation.] Such evidence must be admissible.” (Id. at p. 1497; see also Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1235-1238; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 656.)

Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 held a malicious prosecution claim was precluded because the earlier denial of an anti-SLAPP motion established probable cause for a suit. Wilson observed that “[a] claim that is legally sufficient and can be substantiated by competent evidence is … one that a ‘reasonable attorney would have thought … tenable.’ ” (Id. at p. 821.) As one court observed, Wilson “contemplates a SLAPP plaintiff’s presentation of competent, i.e., admissible, evidence in support of its prima facie case in opposition to the motion.” (Tuchscher Development Enterprises, supra, 106 Cal.App.4th at p. 1237.) Baral explained, “The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Baral, supra, 1 Cal.5th at p. 396.)

[Quick sidebar: Not so much for the case being discussed, but remember the reasoning of the prior paragraph. If a plaintiff brings an action, and defeats an anti-SLAPP motion, the action will then be safe from any malicious prosecution action. If the action was sufficient to satisfy the second prong of the anti-SLAPP analysis, then it can’t be said to have been so obviously lacking in merit as to be maliciously brought. Now back to Sweetwater.]

Defendants return to their reliance on the former testimony hearsay exception. (Evid. Code, § 1292.) That exception requires the declarant be unavailable as a witness, and “[t]he issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.” (Evid. Code, § 1292(a)(3).) Defendants contend, unless this showing is definitively made at the hearing, a court may not consider the statements in determining the probability of success. The argument runs ahead of itself and accordingly fails. As explained below, evidence may be considered at the anti-SLAPP motion stage if it is reasonably possible the evidence set out in supporting affidavits, declarations or their equivalent will be admissible at trial.

In Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, a clothing retailer sued, alleging the defendants handed out defamatory flyers at demonstrations outside the plaintiffs’ stores. In response to the defendants’ anti-SLAPP motion, the plaintiffs presented an edited videotape purporting to show one of the demonstrations. The defendants objected that the edited videotape was not properly authenticated. The court acknowledged that “[h]ad this videotape been offered at trial, [the defendants’] objection would have been well taken” (id. at p. 1146), noting that, under Evidence Code section 1402, authentication required a showing that “the alteration did not change the meaning … of the instrument” (Evid. Code, § 1402). (See Fashion 21, at p. 1146, fn. 9.) However, the court concluded the videotape could be considered: “[T]he proper view of ‘admissible evidence’ for purposes of the SLAPP statute is evidence which, by its nature, is capable of being admitted at trial, i.e., evidence which is competent, relevant and not barred by a substantive rule. Courts have thus excluded evidence which would be barred at trial by the hearsay rule, or because it is speculative, not based on personal knowledge or consists of impermissible opinion testimony. This type of evidence cannot be used by the plaintiff to establish a probability of success on the merits because it could never be introduced at trial…. [¶] Evidence such as the videotape in this case, which is only excludable on the ground it lacks proper authentication, stands on a different footing in terms of its ability to support the plaintiffs’ cause of action…. [E]vidence that is made inadmissible only because the plaintiff failed to satisfy a precondition to its admissibility [at trial] could support a judgment for the plaintiff assuming the precondition could be satisfied.” (Id. at pp. 1147-1148.) Fashion 21 concluded: “Given the high probability Fashion 21 would succeed in offering the videotape into evidence at trial and the ‘minimal’ showing necessary to overcome a SLAPP motion, we hold the trial court did not commit reversible error in considering the videotape in determining Fashion 21’s likelihood of prevailing ….” (Id. at p. 1148.)

Other cases support the distinction between evidence that may be admissible at trial and evidence that could never be admitted. For example, Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, affirmed the grant of an anti-SLAPP motion because the defamation suit there was based on privileged statements. (Id. at pp. 430-437.) Wilcox reached a similar conclusion in another defamation case, concluding that the petitioner could not overcome a privilege. (Wilcox, supra, 27 Cal.App.4th at pp. 825-827.) The privileged statements in both cases could not be admitted by substantive rule. Likewise, Evans concluded a statement made only on information and belief was incompetent for lack of personal knowledge. (Evans, supra, 38 Cal.App.4th at p. 1498.) In other words, such evidence suffers from “the sort of evidentiary problem a plaintiff will be incapable of curing by the time of trial.” (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1269.)

Although not involving an anti-SLAPP motion, Perry v. Bakewell Hawthorne, LLC, supra, 2 Cal.5th 536, 538, is instructive: “[W]hen the court determines an expert opinion is inadmissible because disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised.” Perry noted that the summary judgment statute required that supporting affidavits and declarations “set forth admissible evidence.” (§ 437c, subd. (d); see Perry, at p. 541.) “The condition that an expert’s declaration must set out admissible evidence, however, has determinative importance…. [T]he summary judgment statute still requires the evidence provided in declarations to be admissible at trial. [Citations.] Declarations themselves are not ordinarily admissible because they are hearsay. But the Kennedy court [Kennedy v. Modesto City Hosp. (1990) 221 Cal.App.3d 575] erred when it suggested that the evidence contained in summary judgment declarations need not be admissible at trial.” (Perry, at p. 541.) Perry reasoned that, because the failure to comply with the disclosure statute rendered the evidence incurably inadmissible at trial, it could not properly be considered in ruling on a summary judgment motion. (Id. at pp. 541-543.)

This case, like Fashion 21, describes evidence that is potentially admissible at trial. Here, unlike the facts in Perry, there is no categorical bar to statements contained in the grand jury transcript and plea forms. Indeed, the statements themselves appear to be statements against interest. (Evid. Code, § 1230.) Further, there are no undisputed factual circumstances suggesting the evidence would be inadmissible at trial. In Fashion 21, the videotape at issue could be admitted at trial if properly authenticated. In the videotaped demonstration, “employees and representatives of Fashion 21 … along with” others were present (Fashion 21, supra, 117 Cal.App.4th at p. 1145), suggesting there were identifiable witnesses who had personal knowledge of the events. The signers of those documents or other competent witnesses could testify at trial to support the District’s claims. That live testimony would supplant any improper reliance on hearsay. Finally, plaintiff would have the opportunity to satisfy the requirements of any other applicable hearsay exceptions before admission at trial.

Here is the Supreme Court’s summary:

Our observation in the previous section regarding the timing of an anti-SLAPP motion and the stay of discovery applies equally here. It may not be possible at the hearing to lay a foundation for trial admission, even if such a showing could be made after full discovery. While it may prove difficult at this early stage to obtain declarations from those who have pled guilty in the bribery case, it is not unreasonable to expect that those witnesses may be deposed and/or produced for trial. To strike a complaint for failure to meet evidentiary obstacles that may be overcome at trial would not serve the SLAPP Act’s protective purposes. Ultimately, the SLAPP Act was “intended to end meritless SLAPP suits early without great cost to the target” (Newport Harbor Ventures, supra, 4 Cal.5th at p. 644), not to abort potentially meritorious claims due to a lack of discovery. Notwithstanding the discovery stay, the court has discretion to order, upon good cause, specified discovery if required to overcome the hurdle of potential inadmissibility. (§ 425.16, subd. (g).)

In sum, at the second stage of an anti-SLAPP hearing, the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection. If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable.

Now back to my victory.

Leaving oral argument, I was 97.3% percent sure we would carry the day, but I was left to worry about that other 2.7%, due to the Court’s reference to Sweetwater. Was the Court intending to overrule the trial court as to the statements by the police officers, concluding that my evidentiary objection could be overcome at trial?

Even though we prevailed, my 2.7% of worry turned out to be appropriate. Although Sweetwater was relegated to a footnote, it was a scary footnote indeed (altered to match my made-up names):

Plaintiff forfeited any argument that the police officers’ statements were admissible despite being hearsay because he could present the evidence without hearsay at trial. (See Sweetwater, supra, 6 Cal.5th at p. 949 [holding “[i]f an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable”]). For example, he could call as a witness the police officer who Dad asked for a welfare check. But New Guy did not raise that argument in the trial court and does not raise it on appeal. (See People v. Financial Casualty & Surety, Inc., supra, 64 Cal.App.5th at p. 416; W.S. v. S.T., supra, 20 Cal.App.5th at p. 149, fn. 7.) In the trial court, Dad filed his evidentiary objections, but New Guy does not appear to have filed a response. And there is no transcript. (See Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 [“Failure to provide an adequate record on an issue requires that the issue be resolved against appellant.”].)

Clearly, the Court did not state that Plaintiff would have prevailed, but there is a strong implication that he might have prevailed had he properly raised the Sweetwater analysis (but not really, as explained below).

Some important lessons out of this one.

First, for the defendant, be sure to make formal written evidentiary objections. I often see attorneys address evidentiary issues in their reply memorandum, but the court is under no obligation to go into your brief and rule on objections contained therein. State your objections in a separate document, so the court will rule on them. As shown from my case, having a ruling on those objections (to which the Plaintiff failed to respond) was a big factor in the victory.

Second, again as the defendant, when analyzing the viability of an anti-SLAPP motion, you must consider how it will be impacted by Sweetwater. If this case had actually come down to what Dad said to a police officer, the decision to pursue an anti-SLAPP might have required speaking to that police officer.

Finally, if you are or represent the Plaintiff, figure out a way to overcome any evidentiary issues, and seek permission to conduct discovery if appropriate. Here, at a minimum, New Guy should have requested time to seek evidence of the content of the call. All incoming calls to the police are recorded, so New Guy should have subpoenaed that recording.

In the end, it would not have made any difference. Another point I made on appeal was that even if Dad had claimed child abuse in the call to the police, there was no evidence that it was directed at New Guy. It was Mom who had come to pick up Rose, and Rose did not want to go with her. In that context, it would not have made sense for Dad to report that New Guy was somehow abusing Rose at that exact moment. He would not have even known if New Guy was home.

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The Litigation Privilege and Collateral Defamation Actions

Spawning Litigation Actions
I get the same question a couple of times a week, so I decided that a article on the litigation privilege is in order, so I will have a place to send potential clients for a detailed discussion. (I also briefly discuss the police report privilege.)

The question from potential clients almost always comes up in the context of wanting to start a collateral action* for defamation in response to something that is being said in some other court action. Here are the most common examples:

— A husband is going through a divorce, and his wife or a witness or the wife’s attorney filed a declaration with the court stating that he was physically abusive to the children. He wants to file an action against his wife (or the witness or the attorney) for defamation for the false claims made in the declaration.

— Someone is seeking or has obtained a restraining order against the caller, and in support of the request for a restraining order the person filed false declarations and gave false testimony in court. The caller has absolute proof, including emails and recordings, showing that the statements were false. The caller wants to sue for defamation because of all the false statements, which are now a matter of public record.

— An attorney sent a letter to an employee’s employer, claiming that the employee stole property and trade secrets from his former employer, and threatening to sue if the property is not returned or if the employer makes use of any of the trade secrets. Based on the letter, the company fires the employee rather than to run the risk of a lawsuit. The employee did not take any property from the former employer and is not using any trade secrets, and wants to sue the former employer and its attorney for defamation.

— An employee is suing for wrongful termination, and the deposition of one of his former co-workers is taken. At that deposition, the co-worker falsely claims that she was sexually harassed by the employee suing for wrongful termination. As a result of this claim, the court grants a motion for summary judgment and throws out the action, and the employee’s marriage is severely strained because of the claim of infidelity. The employee wants to sue the co-worker for defamation for what she said at her deposition.

— A person is sued for fraud, and in the complaint there are dozens of false allegations, stating that the defendant engaged in illegal conduct and made misrepresentations to the plaintiff in order to cheat her out of money. After the complaint is served, the plaintiff dismisses the action, but the complaint is now a matter of public record, and anyone doing a search on the Internet can find this complaint with all its lies. The defendant wants to sue for defamation.

Statements Made in Conjunction with Litigation are Privileged

None of the above circumstances would permit an action for defamation. A quick definition is necessary to explain why. Defamation requires an UNPRIVILEGED false statement. Therefore, if a statement is privileged, it cannot be defamatory.

The statements that are privileged are set forth in Civil Code section 47, which states in part:

47. A privileged publication or broadcast is one made . . . (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law . . . .

Thus, any statement made in conjunction with a “judicial proceeding” is privileged, and cannot form the basis of a defamation action. It’s that simple.

When I explain this to potential clients, I typically get a response that goes something like this:

“So you’re telling me, they can falsely accuse me of rape, and there’s NOTHING I can do about it?!”

“Well, your question was whether you could sue them for defamation, and no, you cannot sue them for defamation.”

“But I can prove that they knew what they said was false.”

“It’s not a question of being able to prove it’s false, you can’t sue them for defamation if the statement is made in conjunction with litigation.”

“So you’re telling me, they could falsely claim I murdered 50 people, and there’s NOTHING I can do about it?!”

And so it goes, with the caller coming up with greater and greater examples of outrageously false statements, apparently thinking that I will ultimately see the foolishness of what I am claiming, and respond, “Oh, well, if he falsely accuses you of killing 20,000 people, then THAT would be enough to sue for defamation.”

It doesn’t work that way. The litigation privilege is absolute, and once you understand the public policy behind this rule, you will probably agree that it is essential. I will also show you why it really doesn’t make any difference in the grand scheme of things.

A World Without the Litigation Privilege

Imagine a legal system without the litigation privilege. Let’s put you into a garden variety personal injury action as an example. You went to a bar and had a couple of beers, but you were there for many hours, so you were stone cold sober on your drive home. When you stopped for a red light, someone rear-ended you, and you are now suffering serious back problems as a result. You are suing the person who rear-ended you for your medical expenses and pain and suffering.

During discovery before the trial, the attorney representing the defendant who rear-ended you contacts your family members and employer, and asks them about your “drinking problem.” Following the conversation with the attorney, your boss calls you in and says you will no longer be permitted to use the company car, because he has concerns about your drinking.

The bartender is deposed and testifies that he saw you drinking before the accident, and recalls that you had ten beers, when in fact you only had two.

At trial, the defendant testifies that you stopped abruptly in the middle of the road for no reason, and that is what caused the accident. He claims that when you got out of the car, you apologized for the accident, stating that you were too drunk to be driving. Both statements are false.

As a result of the testimony of the bartender and the defendant, the jury finds in favor of the defendant. In the hallway following the verdict, the jurors all tell you that you should seek help for your drinking problem. You have to pay thousands in court costs to the defendant.

In this world without a litigation privilege, what do you do? Well, you can’t let stand all those false claims, so you file two more actions, suing the bartender and the defendant for defamation. For good measure, you file a third action against the attorney for talking to people about your alleged drinking problem.

Thus, your one action has now spawned three more. Now, when you testify in those three actions that the bartender, defendant and attorney were all lying, how should they respond? They can’t allow those accusations to go unchallenged, so they each file lawsuits back against you for calling them liars. Our original personal injury action has now spawned six new actions. In fact, since you claimed that the person who rear-ended you was negligent, and he proved that he wasn’t, he probably already sued you for lying about him in the first action.

And there is a collateral effect. The bartender testified to what he thought was the truth. He remembered you as having ten beers, but he had confused you with someone else and was just wrong. For coming to court and telling what he thought was the truth, he bought himself a lawsuit. He now must pay an attorney thousands of dollars to defend him against your defamation action. Would anyone ever agree to testify in court if they could be sued for what they say? They could be compelled to attend with a subpoena, but you can bet they are going to testify that they don’t remember anything in order to avoid being sued.

Thus the reason for the ABSOLUTE litigation privilege. If you allow anyone to be sued for what they say in conjunction with a lawsuit, the system would fall apart. Every action would spawn many more, and the courts would be unable to keep up. No one would be willing to testify, so cases would often be impossible to prove.

The frustration of the callers is understandable, especially when they have proof that the statements were false. They understand generally the reasons for the litigation privilege, but feel that there must be an exception when there is irrefutable proof that the other side knowingly make false statements. But consider that for a moment. If there was an “I have absolute proof that the witness knew he was lying” exception, how would that work? That exception would defeat the rule, because then anyone could file an action claiming to be in possession of such proof. The action would still have to be litigated in order to look at the proof.

The only “exception” is that the statements have to made in furtherance of litigation. Anything said in court or in a court document is obviously privileged, but so too are the statements by the attorney when he contacted potential witnesses.

Collateral Actions Accomplish Nothing.

Before you rail against this necessary public policy, claiming that there should be a consequence for lying, understand also that it really doesn’t make much difference. Here is why.

A caller will tell me that during divorce proceedings, his wife lied about him abusing the children, and as a result he got limited visitation. He wants to sue for defamation for all the lies about the abuse.

But wait a minute. “Didn’t you explain during the divorce proceedings that you did not abuse the children?”, I ask.

“Yes, and all my family members testified that I was a wonderful father who never hit my children, the children testified that I never hit them, and we had an expert witness, a social worker who testified that there was no indication that I ever abused the children.” But my wife testified that I did beat the children, some of her friends testified that long before the divorce she had told them about me beating the children, and her expert witness testified that the behavior of the children was indicative of abuse by the father. For whatever reason, the judge believed her witnesses and not my witnesses.”

“OK, so with every opportunity to tell your side of the case, the judge did not believe you and you lost. Why would the result be different in a new case?”

“Well I have more witnesses, and she introduced hospital records of one of my children being taken to the hospital for a broken finger, and claimed that I broke that finger, but I can prove that I was away on business on that day.”

“Did something prevent you from introducing those travel records to the judge in the divorce action?”, I ask.

“Well, no, but it was so obvious that I did not abuse the children I didn’t think I needed to.”

So you see why a collateral action, even if permitted, would not accomplish anything. If the party could not prove their position in one court, there is no reason to believe they will have a different result in another. And if there was more evidence that could have been presented, it should have been presented in the first action. The strong public policy supporting the litigation privilege does not need to bend to give you a second bite at the apple – just put on all your evidence in the first action. If despite all your evidence the judge gets it wrong, then you should appeal from that case, not file a new one.

Be honest with yourself, and you will have to admit the real reason you want to bring a collateral action.

If the following does not apply to you, then don’t be offended. In the vast majority of cases, when someone calls wanting to sue for defamation for something said in a court document, their real motive has nothing to do with wanting to clear their name. Conceptually, it makes no sense to bring a separate action to prove the falsity of a statement made in pending litigation, for all the reasons already stated. If you didn’t abuse the children, prove it in the divorce proceeding.

Indeed, the oft-stated reason for bringing the action is because all the lies told in court are now a matter of public record, and the caller wants to clear his name. If so, then his name needs to be “cleared” in the same action, so anyone seeing that public record will see the truth. Winning in a separate action would do nothing to correct the record in that other action.

The real reason the person is calling wanting to file a separate action — one that they will often deny — is they are seeking leverage. They reason that if they can file a separate action and expose the witness or party to civil liability, or just the cost and annoyance of having to deal with the second action, that will pressure the person to alter or withdraw the testimony. That is not a proper purpose for legal action.

Does that mean you are completely without remedy?

Lying on the stand or in a declaration is perjury, which is a criminal offense. If you can prove that the person knew what they were saying was false, then by all means file a police report. The police cannot become a back-door court of appeal, deciding who was lying, so the standard remains the same. If you could not prove your point in the first action, then the lie that you claim was perjury will probably not be black and white enough for the police to pursue it.

Also, the statement is only privileged if it is made in conjunction with the litigation. That is a very broad definition. The statement does not need to be in a court document, but it must advance the litigation. That is why the attorney talking to the family members about your drinking problem was privileged. But if that same attorney calls a press conference and discusses your alleged drinking problem, you could then sue for defamation since that does nothing to advance the litigation.

A few words about limited privileges.

Thus far, I have discussed only the litigation privilege, which is absolute. There are a number of privileges, and some of them are only limited privileges. With a limited privilege, the person can be sued for defamation if it can be shown that the statement in question was made with malice. In those cases, it is not enough to show the statement was false, you must show that the person made the statement with malice or reckless disregard for the truth.

The Common Interest Privilege is the most prevalent privilege with only limited immunity. This privilege is set forth in Civil Code section 47(c), which provides:

A privileged publication or broadcast is one made: . . .

(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.

As you can see, this is a very broad privilege, giving limited immunity to anyone who is speaking to another, so long as they have a good faith belief that the person to whom they are speaking is interested in the subject matter.

Note also that this section destroys the cherished belief held by many that when you look for work and your prospective employer calls for a reference, your former employer can’t say anything bad about you. Also in the employment context, this is the section that prevents you from suing an employee for telling lies about you to management (unless you can show those lies were told with malice).

Here is the actual jury instruction on the limited (also referred to as the “qualified privilege”):

1723. Qualified Privilege (Civ. Code, § 47(c))

Under the circumstances of this case, [name of plaintiff] cannot recover damages from [name of defendant], even if the statement(s) [was/were] false, unless [he/she] also proves that [name of defendant] acted with hatred or ill will toward [him/her].

If [name of defendant] acted without reasonable grounds for believing the truth of the statement(s), this is a factor you may consider in determining whether [he/she] acted with hatred or ill will toward [name of plaintiff].

Note that the jurors are specifically instructed that they cannot award damages even if the statements were false, unless the plaintiff proves that the defendant acted with malice. Thus, the burden is on the plaintiff, and that is a tough burden to meet since it involves getting into the defendant’s head.

I see this often in the sexual harassment context. A woman reports to HR that she is feeling sexually harassed by a coworker, and as a result of that report, the coworker is investigated and possibly even fired. The report by the woman is privileged because HR would certainly want to know if an employee is sexually harassing another. It may be that the coworker did something innocent like offering to get the woman a cup of coffee, but if the woman took that as sexual harassment, the fact that she was 100% wrong does not translate her reporting the incident into a malicious act, and she would be protected by the limited privilege.

Finally, note that the quantum of harm does not determine whether a defamation action exists. If the common interest privilege applies and no malice can be shown, then the fact that the false report of sexual harassment destroyed the coworker’s marriage and caused him to be fired, does not create a defamation action. Again, defamation requires an UNPRIVILEGED statement, so if the statement was privileged, then it can never be morphed into defamation no matter how much damage it caused.

* Collateral Action or Attack — A legal action to challenge a ruling in another case. For example, Joe Parent has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A “direct attack” would have been to raise the issue of parenthood in the divorce action.

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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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SLAPP029 – Can Attorneys Sue Their Clients for Malicious Prosecution After a Fee Dispute?

In episode 28, we discussed the attorney who sued his own client for malicious prosecution. The client had challenged the fees charged by the attorney by way of the informal fee arbitration process, and when he lost the attorney turned around and sued for malicious prosecution.

Incredibly, the court denied our motion, so we had to take it up on appeal.

The Court of Appeal agreed with our position that a fee arbitration cannot be the predicate for a malicious prosecution case, and therefore the attorney could not possibly prevail on the second prong of the anti-SLAPP analysis.

In Episode 29, we discuss the court’s decision, as well as the motion for attorney fees that followed. The attorney provided a 65-page report from an expert witness who challenged our fees and hourly rate, but the judge was having none of it.

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FilmOn.com v. DoubleVerify – Supreme Court Further Defines “Issue of Public Interest”

FilmOn.com v. DoubleVerify
Time to discuss the very important opinion by the California Supreme Court in the case of FilmOn.com v. DoubleVerify. To fully understand this opinion and the reasoning behind it, it is necessary to read the entire opinion, because it beautifully builds from the roots of the anti-SLAPP statute all the way to the ultimate conclusion. But in case you don’t have that kind of time, I’ll summarize it up front, and then offer a guided tour through the opinion.

The Facts and Legal Holdings of FilmOn.com v. DoubleVerify.

FilmOn.com Inc. (FilmOn) is a for-profit business entity that distributes web-based entertainment programming. In this case, FilmOn sued DoubleVerify Inc. (DoubleVerify), another for-profit business entity that offers online tracking, verification and “brand safety” services to Internet advertisers. In other words, DoubleVerify offers its conclusions about sites and content, so advertisers can be sure their ads do not end up in places they might consider to be inappropriate. FilmOn did not like what DoubleVerify had reported to its clients, and sued DoubleVerify for trade libel, tortious interference with contract, tortious interference with prospective economic advantage, and violation of California’s unfair competition law.

DoubleVerify responded by filing an anti-SLAPP motion to strike, which was granted by the Los Angeles County Superior Court, Judge Terry Green presiding. The Court of Appeal agreed with Judge Green’s conclusion that DoubleVerify’s reports “concerned issues of interest to the public” because “the public has a demonstrable interest in knowing what content is available on the Internet, especially with respect to adult content and the illegal distribution of copyrighted materials.” To support its conclusion, the court analogized DoubleVerify’s confidential reports to ratings by the Motion Picture Association of America, writing, “the Motion Picture Association of America (MPAA) engages in conduct quite similar to DoubleVerify’s activities by rating movies concerning their level of adult content, and the MPAA does so, because the public cares about the issue.”

It is always a hail Mary to appeal to the California Supreme Court, but surprisingly the Court elected to take up this matter, “to decide whether the commercial nature of a defendant’s speech is relevant in determining whether that speech merits protection under the catchall provision. To resolve this question, we also clarify how the context of a statement more broadly – including the identity of the speaker, the audience, and the purpose of the speech – informs the same analysis.”

In a unanimous decision, the Supremes reversed the Court of Appeal, and sent the case back to Judge Green for an order denying the anti-SLAPP motion. In essence, as I have repeated here a hundred times, the Court found that context is everything. It found that determining whether the ratings issued by DoubleVerify are a matter of public interest is not viewed in a vacuum. Rather, even if it is concluded that the speech is a matter of public interest, that speech must be in furtherance of the speech on the topic.

It is by carefully observing this wedding of content and context that we can discern if conduct is “in furtherance of” free speech “in connection with” a public issue or issue of public interest. (§ 425.16, subd. (e)(4).) What this union of content and context lets us discern in this case is that DoubleVerify’s report does not qualify for protection under the catchall provision of the anti-SLAPP statute.

Read the rest of this entry »

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A Huge Anti-SLAPP Victory by Morris & Stone in the Court of Appeal

Noe v J Niley Dorit

J. Niley Dorit v. Noe

At Morris & Stone, we sometimes take a case with an eye toward the greater legal implications. Prevailing for the client is of course our number one goal, but occasionally it is clear that the case could have legal implications beyond the dispute between the parties. This was such a case. It began as a, “well, that can’t be right” case, and morphed into a precedent that will control a small part of anti-SLAPP law until the universe reaches heat death.

Yet, it all started out so simply . . .

In January 2018, our client (we’ll call him Jack because that’s his name) hired an attorney named J. Niley Dorit to evaluate the medical records of Jack’s deceased mother for a potential medical malpractice suit against her doctors. The parties signed a fee agreement in which Jack agreed to pay Dorit a $10,000 non-refundable retainer fee. This sum was intended to cover Dorit’s time spent evaluating the claim, as well as “the costs of additional medical records and/or expert medical review if indicated.” The agreement contained an arbitration clause, which stated, “Should there arise any disagreement as to the amount of attorneys fees and/or costs, Client agrees to enter into binding arbitration of such issue or dispute before the Bar Association of San Francisco (BASF).”

On March 19, 2018, Dorit called Jack on the phone to present his analysis of the records. According to Dorit, Jack cut him off soon after Dorit began his presentation. Jack asked Dorit simply to provide his ultimate conclusion about the potential malpractice claim. Dorit said he did not think a malpractice claim was viable.

Jack was frustrated, feeling that Dorit had not provided $10,000 worth of services, especially given that he apparently had not consulted any medical experts. Conversely, Dorit felt that his experience with medical malpractice cases qualified him to review the file sufficiently to determine if a malpractice case was warranted. The medical file was huge, so Dorit felt he had earned his fee in examining the file.

The Mandatory Fee Arbitration Act

This is the sort of situation envisioned when the MFAA was was created. MFAA stands for Mandatory Fee Arbitration Act. Under California law, a client can challenge the fees charged by their attorney using this State Bar regulated process. It is designed to be very informal, and the arbitrator is not even required to follow the rules of evidence. It is a quick, low-cost way to have a fee dispute decided. Often the attorney fees involved in a fee dispute are relatively nominal, and it would never make economic sense to have to sue in court, let alone hire yet another attorney to do so. Rather than to force clients to stew in their own juices over the anger of having no recourse, the MFAA provides a quick review of the fees paid. And contrary to popular belief that the process is rigged in favor of attorneys, the MFAA arbitrators are very strict in determining if the attorney has observed all legal requirements.

Thus, a perfect process existed for Jack and Dorit to have the dispute decided, without going to court or even squaring off at ten paces. They submitted the fee dispute to MFAA arbitration. They presented their evidence to the Arbitrator, and ultimately he found in favor of Dorit, and allowed him to keep the $10,000 fee, awarding Jack nothing. Jack even had to cover the filing fee.

There are a couple of important things to know about the MFAA process. By law, a client always has the option to submit any fee dispute to arbitration. Sometimes it is the attorney who wants to sue to recover unpaid fees, but the attorney cannot take the matter to court without first giving the client the option to submit the dispute to arbitration. At that point, the arbitration is non-binding, unless the client then agrees to make it binding. If it is non-binding, then either party is free to reject the award of the Arbitrator and proceed to court.

Additionally, since the arbitration is so informal, and does not follow the rules of evidence, nothing from the arbitration can be used in any subsequent court proceeding. For example, had this matter proceeded to trial, Dorit would not have been permitted to bring up the fact that he had won the arbitration, or to bring up any of the arbitration testimony. It’s simply as though it never happened. This is because it would be entirely unfair to have a situation where clients are encouraged to go to an informal arbitration without the benefit of legal counsel, but then allow the attorney to use the results of that hearing against the client in some other more formal forum, such as a trial.

OK; you now know everything you need to know about MFAA arbitrations. Back to our tale.

When we left our heroes, Dorit had won, and Jack was very unhappy with the result. But Jack has a code, and that code dictated that he had lost fair and square, and he would live with that result. Even though he would have been free to reject the conclusions of the Arbitrator, he did nothing and allowed the award to become final.

Dorit sues for Malicious Prosecution

But Dorit was not as accommodating. Dorit was upset that Jack had dared to question his entitlement to the $10,000 in fees, which he felt had been a malicious thing to do, so he sued Jack in San Francisco Superior Court for Malicious Prosecution. Read the rest of this entry »

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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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Shia LaBeouf – An Anti-SLAPP Legend in His Own Mind

Shia LeBouf anti-SLAPP legend

Shia LaBeouf, the actor of Even Stevens and Transformers fame, walked into one of my favorite eateries, and was denied service by the bartender, who felt that LaBeouf had already had enough. As Hollywood teaches, everything is based on racism, so LaBeouf immediately assumed that the refusal had to be based on racism, and called the bartender a “fucking racist” and “fucking racist bitch” (hereinafter, ‘FRB”). In classic, “do you know who I am?” fashion, LaBeouf pounded his fist on the bar counter, and yelled “you’re not going to fucking serve me?”, before going around behind the bar to confront the bartender, who felt sufficiently threatened to arm himself with a bottle of Grey Goose vodka.1 LaBeouf was escorted from the bar.

The bartender took umbrage with being called an FRB in a restaurant full of people, so he sued LaBeouf for defamation. After foolishly failing to consult with me, LaBeouf responded with an anti-SLAPP motion, and here’s where things get fun. Why would anyone on God’s green earth think that this defamation action would be subject to an anti-SLAPP motion? What is the public interest that would bring it under the statute?

But before accusing LaBeouf and his attorneys of being foolish for thinking that the an anti-SLAPP motion would apply to these facts, allow me to throw them a small bone by providing a little legal context. 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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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.

This site seeks to present legal issues in a hopefully entertaining manner. Hyperbolic language should not be taken literally. For example, if I refer to myself as the “Sultan of SLAPP” or the “Pharaoh of Free Speech,” it should not be assumed that I am actually a Sultan or a Pharaoh.

Factual summaries are entirely accurate in the sense of establishing the legal scenario, but are changed as necessary to protect the privacy of the clients.