Case Results
SLAPP020 – Sixth District Weighs in on Admissibility of Yelp Reviews and the Law on Inferences
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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Posted in anti-SLAPP motions, Case Results, Podcasts | Tags: Evidence Code 1552, Judge Ariadne Symons, Santa Cruz Superior Court | No Comments »
SLAPP019 – Five Best Published Anti-SLAPP Decisions (so far) in 2016
On Episode 19 of the California SLAPP Law Podcast, we go through my five favorite reported anti-SLAPP decisions from the first half of 2016.
But first we begin with a cautionary tale of an attorney who is being sued for malpractice for failing to have me review his complaint before it was filed! (OK, there’s a back story here, so be sure to listen to this episode to find out what I’m talking about.)
Then, we turn to the five best published anti-SLAPP decisions from the first half of 2016. The bold cases are the top five; the non-bolded are other cases I discuss as well.
Lanz v. Goldstone (2015) 243 Cal.App.4th 441
Another cautionary tale, this time of an attorney who followed the old adage, “the best defense is a good offense.” He tried to intimidate an attorney from seeking his legal fees, and bought himself a malicious prosecution action in the process. You’ll learn a lot about malicious prosecution actions and under what circumstances they can survive an anti-SLAPP motion.
Bertero v. National General Corp. (1974) 13 Cal.3d 43
Speaking of malicious prosecution actions, this is the seminal case.
Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135
“When the proceeding terminates other than on the merits, the court must examine the REASONS for termination to see if the disposition reflects the opinion of the court OR THE PROSECUTING PARTY that the action would not succeed.”
Karnazes v. Ares (2016) 244 Cal.App.4th 344
Speaking of over-pleading, our second case is Karnazes v. Ares, decided by the Second District in January of 2016. In this case, the plaintiff alleged 22 – count em – 22 causes of action against the defendants. Karnazes lost to an anti-SLAPP motion, but made some interesting arguments in opposition to that motion.
Sweetwater Union School District v. Gilbane Building Company (2016) 245 Cal.App.4th 19
Are political bribes protected by the anti-SLAPP statute? Listen to find out (and the answer will likely surprise you). And find out how you can support an anti-SLAPP motion with declarations without using declarations.
Crossroads Investors v. Federal National Mortgage Association (2016) 246 Cal.App.4th 529
It may look like litigation, and it may quack like litigation, but that doesn’t necessarily make it litigation for purposes of the litigation privilege and the first prong of the anti-SLAPP analysis.
JM Manufacturing v. Phillips & Cohen (2016) 247 Cal.App.4th 87
Yet one more action against an attorney; in this case an attorney who was so proud of his firm’s trial victory that he published a press release and bought the firm a defamation action. It was a split decision.
And finally, in the after show, I provide an appeal tip that might save you from some embarrassment.
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SLAPP018 – All You Need to Know About Anti-SLAPP Motions in Federal Court
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
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SLAPP015 – It’s Never Too Late to File an Anti-SLAPP Motion
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!)
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Posted in anti-SLAPP motions, Case Results, Podcasts | Tags: late anti-SLAPP motions | No Comments »
A Real-World Application of the Anti-SLAPP Motion Analysis
I was recently retained to consult on an anti-SLAPP motion in Orange County Superior Court, and the hearing on the motion was set for today. This particular judge is very good about issuing tentative rulings, but the rulings are often published on-line just shortly before the 1:30 hearing time. Knowing the tentative ruling is essential for oral argument since you know where the judge is going, and can address those specific points. (Truth be told, attorneys are seldom successful in getting a judge to reverse his or her tentative, but sometimes it can be done when the judge has a fundamental misunderstanding of the law that can be cleared up, or has misapplied the law to the facts.)
So my procedure is to open a window to the tentative rulings, which will be the rulings from the prior week, and periodically refresh the window until the current rulings appear. When our tentative ruling finally did pop up, it was just to inform us that the judge had decided to continue the hearing on our motion for a few weeks. This can happen when a judge’s docket doesn’t leave him or her enough time to work up and decide all the motions, or they just think more time is needed to decide a particularly challenging motion. I prefer to think that our legal analysis was so impressive that the judge just wanted more time to savor it, but who knows.
But while I was on the list of tentative rulings, I saw that the judge had decided an anti-SLAPP motion in another case. The ruling piqued my interest, so I pulled a copy of the cross-complaint to see what the case was all about. That will be the subject matter of this article.
I present the case summary and ruling here because they present a great example of how a judge analyzes an anti-SLAPP motion. I get numerous calls and emails from potential clients either wanting to prosecute an anti-SLAPP motion or needing to defend against one, where the facts they want to present are largely speculation. But to borrow an old cliché, an anti-SLAPP motion is where the rubber meets the road, and your allegations must be provable facts. The case also presents a very good example of just how expansive the litigation privilege can be. I will also take this opportunity to discuss the proof necessary for the particular causes of action that were pursued in this case. Read the rest of this entry »
Posted in Anti-SLAPP motion, Case Results | Tags: anti-SLAPP analysis, Judge James J. Di Cesare | No Comments »
Washington Supreme Court Shoots Down Unconstitutional Anti-SLAPP Statute
The Washington legislature has learned that even a good idea can be taken too far.
When Washington decided to enact an anti-SLAPP statute (it was greatly revised in 2010), it certainly had many states’ examples to choose from. Some states, feeling that anti-SLAPP protections are so essential, have added protections that exceed those of California’s anti-SLAPP statute. California was the first state to pass an anti-SLAPP statute, and many states have the based their laws on California’s tested formulation, while others have tinkered.
In the case of Washington, the legislature decided to up the ante by requiring a plaintiff to show by clear and convincing evidence that their case has merit. Even a cursory review of this heightened standard should have made clear that such a requirement is impermissible.
The Seventh Amendment of the United States Constitution guarantees the right to a jury in a civil trial, and that protection exists on the state level through the states’ own constitutions. For example, Washington’s constitution provides:
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
California’s Constitution very similarly provides:
Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.
To set the stage for our analysis, let’s forget about anti-SLAPP statutes for the moment, and focus on long-tested motions that are familiar to us. Let’s go back in time to when the states were trying to find ways to clear their trial dockets, and came up with the idea of a summary judgment motion. How is a summary judgment motion – which allows a judge to deprive a party of their right to a jury trial – permissible? Similarly, how is a demurrer permissible?
These procedures pass constitutional muster because the court is not weighing the evidence nor deciding the case. Rather the court is simply determining whether the plaintiff’s evidence, if taken as true, would support the claims. If there are any material conflicts in the evidence, the court must deny the motion for summary judgment and allow the case to go to trial. The court cannot decide those conflicts. In the case of a demurrer, the court does not even consider the evidence, but merely takes all of the allegations as true, and determines whether those allegations are sufficient to state a cause of action.
OK, now we can return to Washington’s anti-SLAPP statute. Revised Code of Washington 4.24.525(4)(b) provides:
A moving party bringing a special motion to strike a claim under this subsection has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion.
But hold on Maude. I have a right to jury in Washington. If you make me prove my case by “clear and convincing” evidence at the commencement of the action, that’s all kinds of wrong. First, I have to prove up my case before I can even conduct discovery, and the clear and convincing standard means I have to prove something to the judge. I shouldn’t have to prove anything to the judge. I have a right to jury, and I’ll do my proving to the jury, thank you very much.
The court can decide only issues of law. That means, the court can decide if my complaint adequately sets forth the elements of the causes of action, and, as in the case of a motion for summary judgment, the court can even decide if my evidence, if taken as true, would be sufficient to support my causes of action. But the court cannot decide my case on the evidence. The court can decide if I have evidence, but it can’t weigh that evidence. But for the court to make a “clear and convincing” determination, it necessarily must weigh the evidence. In doing so, the court has decided my case and deprived me of my right to jury.
So held the Washington Supreme Court. Today, the court found the anti-SLAPP statute to be unconstitutional. In the case of Davis v. Cox, the court held:
Though the statute seeks to “[s]trike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern,” Laws of 2010, ch. 118, § 1(2)(a), we conclude the statute’s evidentiary burden fails to strike the balance that the Washington Constitution requires. Because RCW 4.24.525(4)(b) requires the trial judge to adjudicate factual questions in nonfrivolous claims without a trial, we hold RCW 4.24.525 violates the right of trial by jury under article I, section 21 of the Washington Constitution and is invalid.
No doubt Washington will soon pass a new anti-SLAPP statute which replaces the “clear and convincing” language with “a probability that the plaintiff will prevail on the claim.”
Note to the Washington Legislature. You may want to use California’s anti-SLAPP statute as an example. It’s not perfect, but it’s been battle tested for 25 years.
SLAPP014 – Interaction Between the Communications Decency Act and Anti-SLAPP Motions
In Episode 14 of the California SLAPP Law Podcast, we begin with a discussion of the interplay between anti-SLAPP motions and the Communications Decency Act.
The topic came up because of another anti-SLAPP victory we enjoyed this week at Morris & Stone. The anti-SLAPP motion we brought on behalf of our client had nothing to do with the Communications Decency Act, but the Plaintiff was also suing Yelp and RipOffReport in the same action, and they both disposed of the action with anti-SLAPP motions based on the CDA.
I would have thought this had been put to bed long ago, but I still see attorneys suing websites for content posted by third parties, so I thought we’d discuss that a little.
Our anti-SLAPP motion was granted by Judge Jeffrey Glass in the Orange County Superior Court. Take a listen for my (favorable) impressions of Judge Glass, based on the cases I have had in front of him.
In one such case, I represented a defendant who had created a spam filter, and was sued by a company because his spam filter determined that this company was sending out spam emails. In that case, Judge Glass used the “fuzzy bunny test” to determine if the CDA only protects content based spam filters. Listen to Episode 14 to learn the details of this important test.
Here’s what the CDA says about spam filters:
Section 230(c)(2) provides that “[n]o provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
Next, we review the CDA and third party content. We discuss the case of Global Royalties, Ltd v. Xcentric Ventures, where the plaintiff argued that the CDA did not protect information published by a third party on a website, since the website encouraged defamatory speech.
We also discuss the case of Batzel v. Smith, where an individual sent a defamatory letter to an organization, and that organization liked the letter so much, it posted it on its website. In that case, the court found that the website was not protected by the CDA, because the person who sent the letter had not intended for it to be published.
We conclude with a discussion of the Santa Monica 11, who sought to block a ballot measure, and are now on the hook for $31,000 in attorney fees following a successful anti-SLAPP motion
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SLAPP013 – Bench Warrant Arrest Not Protected Activity under Anti-SLAPP Statute
In Episode 13 of the California SLAPP Law podcast (should I have skipped 13, like they do in buildings?), we cover a lot of information that will be useful to any litigator.
Although not directly related to SLAPP law and anti-SLAPP motions, I discuss how and when to bring the various trial motions; Motion for Nonsuit, Motion for Directed Verdict, and the most powerful motion that no one seems to have heard of, the Motion for Judgment. If you’ve ever been confused about which ones are used in bench trials versus jury trials, when they should be brought, and which one is best to use, this podcast will clear it all up.
Then we move onto two recent anti-SLAPP rulings.
The first is Makaeff v. Trump University, LLC (9th Cir.) 715 F. 3d 254. I discussed this case back in Episode 9, but there has been a new development.
As you may recall, Makaeff took some business courses at Trump University, but then later sued, claiming the classes. Trump University countersued, claiming that Makaeff’s criticism of Trump University amounted to defamation. Makaeff responded to the suit with and anti-SLAPP motion. The district court denied the anti-SLAPP motion, but that denial was reversed on appeal. Now the victorious party on her anti-SLAPP motion, Makaeff brought a motion for attorney fees.
We discuss the number of hours Makaeff’s attorneys claimed to have spent on the anti-SLAPP motion and appeal, the opposition to the motion for attorney fees, and how the court responded.
In that context, we discuss Serrano v. Unruh (1982) 32 Cal.3d 621, wherein the California Supreme Court held that where an attorney overreaches in a fee application, fees can be denied in their entirety. Serrano cited to the following cases in reaching that conclusion.
See, e.g., Copeland v. Marshall, 641 F.2d 880, 902-903 [not allowable are hours on which plaintiff did not prevail or “hours that simply should not have been spent at all, such as where attorneys’ efforts are unorganized or duplicative. This may occur … when young associates’ labors are inadequately organized by supervising partners”]; Gagne v. Maher, 594 F.2d 336, 345 [excessive time spent]; Lund v. Affleck (1st Cir. 1978) 587 F.2d 75, 77 [if initial claim is “exorbitant” and time unreasonable, court should “refuse the further compensation”]; Reynolds v. Coomey (1st Cir. 1978) 567 F.2d 1166, 1167 [duplication of effort]; Farris v. Cox (N.D.Cal. 1981) 508 F.Supp. 222, 227 [time on fee petition denied for “overreaching”]; Vocca v. Playboy Hotel of Chicago, Inc. (N.D.Ill. 1981) 519 F.Supp. 900, 901-902 [fee denied in entirety on ground of counsel’s dilatoriness and hours claimed for clerical work]; Jordan v. United States Dept. of Justice (D.D.C. 1981) 89 F.R.D. 537, 540 [fee denied in entirety on ground of unreasonable request and inadequate documentation].
Next, we discuss Anderson v. Geist (2015) (no citation yet available). In Anderson, two deputies executed a bench warrant on a woman, not realizing the warrant had been withdrawn. The woman sued for defamation and a number of other claims. The deputies responded with an anti-SLAPP motion, claiming that the arrest was protected activity. Listen to the podcast to see if that strategy worked.
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SLAPP011 – Six Tips to Win Your Motion for Attorney Fees Following an Anti-SLAPP Motion
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.
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Dance Moms Lawyers Slam Kelly Hyland Lawsuit, File Motion to Dismiss
If you watch Dance Moms online, you know Kelly Hyland is suing the show and its main star, Lee Miller, the dance studio shot-caller and show matriarch.
L.A. Superior Court Judge Ruth Kwan stated she was inclined to toss out Hyland’s claim that Miller defamed her in the aftermath of an episode last year.
Defense attorneys filed a motion to dismiss the case under California’s anti-SLAPP law protecting free speech. But attorneys representing Hyland argued otherwise.
They claim their clients were not properly compensated and that the contract between them and the series was unfairly slanted in favor of the production company.
Attorney Kelli Sager, on behalf of Collins, said Hyland was paid for every episode on which she appeared, and that simply, “is the deal she signed.”
“She’s just unhappy she was not on every week,” Sager said.
Source: www.thehollywoodgossip.com
I do get really tired of the the, “I didn’t understand what I was signing” defense, which is the argument being made by Hyland in this case. For example, I have received a number of calls over the years from contestants on American Idol, wanting to sue because the show made them look foolish, after signing an agreement with the show that they would not sue for being made to look foolish.
Nonetheless, the case is interesting in the anti-SLAPP context because it is outside the normal analysis of protected speech. By that I mean, when I prevail on an anti-SLAPP motion, it is often because the speech was subject to, say, the litigation privilege. It is because of that privilege that the plaintiff cannot make the requisite showing that he, she or it is likely to prevail.
Here, the reason the plaintiff can’t prevail is simply because the contract prohibits it. No fancy privilege, just basic contract law.
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