SLAPP012 – Three Ways to Bring an Anti-SLAPP Motion Against an Ambiguous Complaint

California SLAPP Law Podcast

Sometimes you just know that a SLAPP is hiding in the complaint, but the complaint is so ambiguous that the SLAPP allegations are unclear. What to do?

In this episode, I tell you how to file an anti-SLAPP motion against an ambiguous complaint, which sometimes involves first beating it into shape. I have three approaches, which I call Demurrer, Discovery and Damn the Torpedoes.

1.  Demurrer Approach.

As you can probably guess, the demurrer approach uses a demurrer to the complaint as the means to force plaintiff/cross-complainant to better set forth the SLAPP allegations.

In one case, I sent a demand letter and draft complaint to defendant, demanding the amount owed to my client. When defendant did not respond, I filed and served the complaint.

Defendant responded with a cross-complaint, alleging a cause of action for Intentional Infliction of Emotional Distress (“IIED”). In the general allegations of the cross-complaint, defendant made reference to the demand letter and draft complaint, and those allegations were incorporated into the claim for IIED, but it was very unclear what defendant was claiming has caused him the emotional distress. If he was asserting that the letter and draft complaint were the culprits, those would be protected under the litigation privilege, and the cross-complaint would be a clear SLAPP.

I demurred to the cross-complaint, and defendant took the bait. His attorney filed a first amended cross-complaint, and this time made very clear that the letter and draft complaint had caused the stress. I was then able to file the anti-SLAPP motion, which was granted.

2.  Discovery Approach

The downside to the demurrer approach is that you may run into a lazy judge, who declines to rule on the demurrer, telling you instead to “flesh out” the meaning of the allegations with discovery. If your demurrer is overruled, then it is likely you will by then be beyond the 60-day deadline for bringing your anti-SLAPP motion, and will have to seek permission.

Instead, if you act quickly, you can complete a round of discovery before the deadline for having to file the anti-SLAPP motion. That discovery can nail down the meaning behind the allegations of the complaint, and the responses can be used to support the anti-SLAPP motion.

3.  Damn the Torpedoes

Finally, there is the Direct Approach, which I refer as “Damn the Torpedoes”.

In the case of an anti-SLAPP motion I filed this week, the complaint alleges a claim for Intentional Interference with Prospective Economic Advantage. Plaintiff alleges only that my client spoke to others, and those conversations interfered with the business.

In this case, my client knows who he talked to, so we can fill in the blanks without the need for a demurrer or discovery. In essence, the anti-SLAPP motion sets forth the details left out of the complaint. It identifies who my client contacted, and then shows why each of those conversations is privileged. The worst that could happen is that plaintiff will make a false claim that someone else was contacted, but that still has value, since early in the action we will have forced plaintiff to put his cards on the table.

Listen to the podcast for a far more detailed discussion, including the pros and cons, for each approach.


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.


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.)


SLAPP008 – An Anti-SLAPP Motion Against an Evil Yogurt Shop

California SLAPP Law Podcast

A client found me while searching for information about California Code of Civil Procedure section 425.17, proving that clients do some very sophisticated research on their legal issues. Changing the facts to protect the privacy of my client, he had warned the public about an evil yogurt maker who was falsely claiming to sell organic yogurt, and for that good deed he was hit with a lawsuit for defamation and interference with business.

In today’s podcast, we discuss the elements of CCP section 425.17, which under the proper circumstances will exempt a business versus business claim from the anti-SLAPP statute. In the most basic sense, section 425.17 applies when one business is talking about another business’s goods or services, AND the audience that the business is talking to consists of potential customers, AND the point of the talking is to promote the speaker’s own business.

Will section 425.17 defeat the anti-SLAPP motion, and allow the evil yogurt maker to go forward with his bogus defamation claim? Listen to episode 8 of The California SLAPP Law Podcast and find out.

Case cited:  Sharper Image Corporation v. Target Corporation, 425 F.Supp.2d 1056 (N.D. CA 2006). In this case, Sharper Image, manufacturer of tower air purifier brought action against Target, manufacturers and retailers of competing product, alleging patent and trade dress infringement. Target moved for summary adjudication of plaintiff’s claims and their counterclaims for non-infringement of the asserted patents. Sharper Image separately moved to strike defendants’ tort and state law counterclaims, and in the alternative, moved for judgment on the pleadings of the counterclaims, and for partial summary adjudication on its utility patent infringement claim. Of note for today’s discussion, the court found that the anti-SLAPP motion was excluded by CCP section 425.17, but nonetheless threw out the claim under the alternative motions.


SLAPP007 – Proving Actual Malice in a Defamation Action – Makaeff v. Trump University

California SLAPP Law Podcast

A great anti-SLAPP decision that has been five years in the making. In this podcast, we discuss the case of Makaeff v. Trump University, which contains an outstanding discussion of limited public figures and meeting the standard for showing actual malice. Here are the facts:

Between August 2008 and June 2009, Tarla Makaeff attended approximately seven real estate investing and finance seminars, workshops, and classes hosted by Trump University and spent a total of approximately $60,000 on the programs. Although Trump University asserted Makaeff was satisfied with the services Trump University provided to her, noting that Makaeff frequently provided excellent reviews of the programs, Makaeff stated the Trump University programs she attended were unsatisfactory. Specifically, Makaeff alleged the programs were shorter than advertised, she was provided only a toll-free telephone number instead of a one-year mentorship of “expert, interactive support,” and her Trump University mentors were largely unavailable and offered no practical advice when she did speak with them.

In addition, Makaeff alleged she was told by Trump University staff to raise her credit card limits to purchase real estate, but once she did, she was pressured by Trump University staff to instead use her elevated credit to purchase the Trump Gold Elite seminar for $34,995.  Makaeff also claimed she was told by Trump University staff that her first real estate transaction after signing up for the Trump Gold Elite program would earn her approximately the amount she spent on the Trump Gold Elite program, which it did not. Additionally, Makaeff alleged Trump University instructed her to engage in illegal real estate practices, such as posting advertising “bandit signs” on the sides of roadways. On June 18, 2009, Makaeff received a letter from the Orange County District Attorney’s Office informing her that posting bandit signs in California without lawful permission could subject her to fines, a misdemeanor charge, and up to six months in jail.

Makaeff brought a class action lawsuit against Trump University on April 30, 2010.  On May 26, 2010, Trump University filed a defamation counterclaim against Makaeff, alleging Makaeff “published statements to third parties about Trump University orally, in writing and on the Internet that are per se defamatory, including many completely spurious accusations of actual crimes.” Trump University alleged Makaeff’s defamatory statements were a substantial factor in causing actual and significant economic damages amounting to or exceeding $1,000,000. Madaeff responded with an anti-SLAPP motion, which was originally denied, but on appeal the Ninth Circuit determined that Trump University was a limited public figure, and send the case back to the District Court for a determination as to whether Trump University could still state a prima facie case, given the higher “actual malice” standard.

How was the case decided? Listen to the podcast to find out.

Cases discussed in the podcast (in bold), taken from the opinion:

To prove actual malice, a defamation plaintiff must show by clear and convincing evidence that the defendant knew her statements were false at the time she made them, or that she acted with reckless disregard of the truth or falsity of the statements made.  Gertz v. Robert Welch, Inc., 418 U.S. 323, 328, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).  The clear and convincing standard “requires that the evidence be such as to command the unhesitating assent of every reasonable mind.” Rosenaur v. Scherer, 88 Cal. App. 4th 260, 105 Cal. Rptr. 2d 674, 684 (Ct. App. 2001).  “A defamation plaintiff may rely on inferences drawn from circumstantial evidence to show actual malice.”  Christian Research Inst. v. Alnor, 148 Cal. App. 4th 71, 55 Cal. Rptr. 3d 600, 612 (Ct. App. 2007) (citing Reader’s Digest Assn v. Superior Ct., 37 Cal. 3d 244, 208 Cal. Rptr. 137, 145-46, 690 P.2d 610 (1984)).

Actual malice is a subjective standard.  See St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968).  “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [her] publication.”  Id.

Actual malice “has nothing to do with bad motive or ill will,” and “may not be inferred alone from evidence of personal spite, ill will or intention to injure on the part of the writer.”  Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 n.7, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989).  However, in appropriate cases, factors such as “[a] failure to investigate, anger and hostility toward the plaintiff, reliance upon sources known to be unreliable, or known to be biased against the plaintiff . . . may . . . indicate that the publisher [herself] had serious doubts regarding the truth of [her] publication.”  Reader’s Digest, 208 Cal. Rptr. at 145-46 (citations omitted).

Trump University claims this case is similar to Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 90 Cal. Rptr. 3d 205 (2009), in which the California Court of Appeals upheld a trial court’s conclusion that malice could be inferred “where, for example, a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.”  Id. at 869 (citing Christian Research Institute v. Alnor, 148 Cal. App. 4th 71, 85, 55 Cal. Rptr. 3d 600 (2007)) (internal quotation marks omitted).  Trump University argues Makaeff, like the defamation defendant in Nguyen-Lam, “has no ‘place to go for her belief’ that Trump University illegally took the property of anyone, stole anyone’s identity, or opened any credit card without approval.”  (Dkt. No. 300 at 15-16.)

The Court finds Nguyen-Lam distinguishable from the present matter.  In that case, the California Court of Appeals considered a defamation defendant who had learned about the defamation plaintiff, then a candidate for a public position, only through media reports yet accused her of being a Communist.  171 Cal. App. 4th at 868-69.  The evidence in Nguyen-Lam indicated the defamation defendant had no personal knowledge of the defamation outside of the media reports, none of which had mentioned Communism, and thus had no basis for his claim that the defamation plaintiff was in fact a Communist.  Id. at 869.

Trump University points to evidence of Makaeff’s anger and hostility toward Trump University, as well as a motive to get a refund, as evidence of actual malice.  (Dkt. No. 300 at 17) (citing Christian Research Institute v. Alnor, 148 Cal. App. 4th 71, 84-85, 55 Cal. Rptr. 3d 600 (2007) (“anger and hostility toward the plaintiff . . . may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication”); Harte-Hanks Commc’ns, Inc., 491 U.S. 657, 669, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (“it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry”); Widener v. Pacific Gas & Elec. Co., 75 Cal. App. 3d 415, 436, 142 Cal. Rptr. 304 (1977) (finding an engineer’s motive of wanting to suppress the making of a film and his anger with the film’s producer “sufficient evidence from which the jury could have found that [the engineer] knew [his libelous statement about the producer] was false, or was recklessly indifferent as to whether his statement was accurate or not”)). 

Ruling from District Court.

Ninth Circuit Opinion finding that Trump University was a limited public figure.


SLAPP006 – CalPERS v. Moody’s – Is an Opinion Always Protected Speech Under the Anti-SLAPP Statute?

California SLAPP Law Podcast

With the wisdom of a penny-stock investor trying out day-trading for the first time, the brilliant financial minds at CalPERS (California Public Employees’ Retirement System) decided to dump more than a billion dollars into three “structured investment vehicles” or SIVs, backed by subprime mortgages. After all, Standard & Poors had given these three SIVs AAA ratings, even though they were “stuffed full of toxic, subprime mortgages, home equity loans, and other types of structured-finance securities linked to subprime mortgages,” as CalPERS now alleges.

As most do when they make really bone-headed investment decisions, CalPERS looked for someone to blame, and settled on Standard & Poors for that AAA rating. It sued Standard & Poors for negligent misrepresentation, asserting that the ratings company should be held responsible for the losses suffered by CalPERS.

“But wait a cotton-picking minute,” said some fictional attorney representing Standard & Poors, “I read somewhere in law school that opinion is protected speech, and won’t support an action.” On that basis, Standard & Poor’s filed an anti-SLAPP motion, but a San Francisco judge denied the motion, finding that CalPERS had provided sufficient evidence to meet the second prong of the anti-SLAPP analysis.

Today’s podcast examines the opinion of the Court of Appeal as regards the anti-SLAPP motion. Is an opinion about the worth and safety of an investment inherently protected opinion speech?

California Public Employees’ Retirement System, Inc. v. Moody’s Investors Services, Inc., 14 S.O.S. 2584 (A134912). For a copy of the opinion as well as a copy of the original complaint, go here.


SLAPP005 – Anti-SLAPP Decisions for First Quarter of 2014

California SLAPP Law Podcast
We’re not even done with the fifth month of 2014, and California already has 12 reported decisions arising from anti-SLAPP appeals.

In the 5th Episode of the California SLAPP Law Podcast, we discuss four anti-SLAPP decisions.

Anti-SLAPP Decisions:

MORIARTY v. LARAMAR  MANAGEMENT CORPORATION (2014) 224 Cal.App.4th 125 — A landlord-tenant case with no particular significance other than to show the displeasure of the Court of Appeal with frivolous anti-SLAPP appeals.

SCHWARZBURD v. KENSINGTON POLICE PROTECTION & COMMUNITY SERVICES DISTRICT BOARD (2014) — Cal.Rptr.3d —-, 2014 WL 1691562, 2014 Daily Journal D.A.R. 5470 — An action against a Police District that was decided on the basis of CCP section 425.17.

TOURGEMAN v. NELSON & KENNARD (2014) 222 Cal.App.4th 1447 — Another case decided under section 425.17, which discusses the burden of the plaintiff when seeking to apply that anti-SLAPP exception.

ROGER CLEVELAND GOLF COMPANY, INC. v. KRANE & SMITH, APC (2014) 225 Cal.App.4th 660 — Which discusses the statute of limitations for a malicious prosecution action (not as obvious as you my think), and analyzes and applies the anti-SLAPP statute.


SLAPP004 – Anti-SLAPP Motion: Yelp v. McMillan Law Group

California SLAPP Law Podcast
In this 4th episode of the California SLAPP Law Podcast, I discuss the truly strange legal action brought by Yelp against one of its former customers, the McMillan Law Group.

In its complaint, Yelp alleges that it works to maintain the purity of the reviews posted on Yelp.com, and that the McMillan Law Group caused damage to Yelp by posting false positive reviews.  McMillan Law Group has just responded with an anti-SLAPP motion. Together, we dissect both the Yelp complaint and the McMillan anti-SLAPP motion, and predict the outcome of the motion.

Here are the cases discussed in today’s show:

Romona Unified School District v. Tsiknas (2005) 135 Cal.App.4th 510.

Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.

Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1559 (dissenting opinion).

Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.


SLAPP003 – Anti-SLAPP Procedures and Strategies

California SLAPP Law Podcast

A lot of useful information in today’s show, if I do say so myself.

We discuss anti-SLAPP procedures and strategies, and what you need to know about the 60 and 30 day deadlines for anti-SLAPP motions, and an easy and efficient way to protect your anti-SLAPP motion if the court clerk won’t set the hearing in 30 days or less.

I show you why it can be risky to amend a complaint, and why using a motion to supplement might be a better bet.

And we even discuss some tips for appeals and motions for summary judgment, as well as a free WordPerfect app for your iPad.


Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

11 Orchard Road, Suite 106
Lake Forest, CA 92630

(714) 954-0700

Email Aaron Morris
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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.