How I Defeated an anti-SLAPP Motion by Doing Almost Nothing

Win anti-SLAPP doing nothing

Sometimes delay can be a good thing. Here is the tale of an anti-SLAPP motion defeated by time.

Because of certain changed circumstances, a massive company, we’ll call it Optimus, found itself in a bad situation. The facts are very complicated, but here is a simplified, made-up analogy that will set the scene.

Picture that Optimus is in the cold-remedy business, and a number of its formulations contain acetaminophen. But one day it is discovered that when acetaminophen is aerosolized, it cures baldness, and can be sold at a much higher price for that purpose. All of the suppliers want to bail on providing acetaminophen to Optimus, so Optimus comes up with a complaint it intends to use across the country against its suppliers, to force them to honor their agreements. Optimus knows that the suppliers will claim that the new use is a better use for the acetaminophen, because curing baldness is obviously the best conceivable use of any drug, especially as compared to a little pain and fever relief during a cold. The complaint by Optimus will challenge that legal theory and, if successful, will get all its other providers back into line.

But before Optimus can file its first test case, one of its suppliers, Megatron, files a declaratory relief action under the aforesaid theory. In response, Optimus tweaks its test action and files it as a cross-complaint.

From an anti-SLAPP standpoint, Optimus steered very close to SLAPP territory, because its cross-complaint included allegations that Megatron’s lawsuit was causing it harm. As I have written here before, suing someone for suing (in anything other than the malicious prosecution context) is almost always a SLAPP due to the litigation privilege. But the attorneys for Optimus had done a great job of making clear that the complaint was not based on the litigation, but rather the litigation was just another example of Megatron’s intentional interference with Optimus and its business.

But the attorneys at Megatron failed to read the cross-complaint in detail. They saw that there were allegations relating to the litigation, and immediately thought SLAPP. (It’s certainly OK to think SLAPP, but having done so, you need to do a little analysis.) They dutifully filed an anti-SLAPP motion, and I was brought in to assist with opposing the motion.

I researched and drafted the opposition to the anti-SLAPP motion, with the assistance of the fine attorneys at Optimus. Soon after we filed the opposition, and the Megatron attorneys realized that the Sultan of SLAPP was opposing the motion, they withdrew it and curled into a fetal position. At least that’s how I choose to picture what happened. But in reality, it probably went more like this.

We had the bad luck of being in a court that takes forever to hear motions, and is unwilling to give anti-SLAPP motions any priority. Making matters worse, as the date drew near, the judge apparently had no time to work it up, and set a new date, again off in the distant future.

boxer downA few days before the new hearing date, Megatron’s attorneys filed a notice that they were withdrawing the anti-SLAPP motion. Of course, I immediately took full credit, but the more likely scenario is that the withdrawal was a result of another of Optimus’s cases. Another court on another matter had ruled against a supplier, finding that the “higher and better use” argument was not a basis to breach their supply contract with Optimus. Although not actual precedent to our case, Megatron was forced to see that the argument probably wasn’t going to fly in our case as well. They would be in the position of having to argue on the second prong that Optimus was not likely to succeed on its claim to force them to continue providing acetaminophen, when a court had just done exactly that.

As much as I would have loved to see the motion play out, this was a best result for the client. Indeed, the result was amazing because by Megatron filing the anti-SLAPP motion, the matter was on hold from discovery all the many months the court kept kicking it down the street. Effectively, Optimus was able to spend almost nothing defending this case, while testing its theory as the plaintiff in another jurisdiction.

 

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?

Read the rest of this entry »

You Can Now Be Sued for Calling the Police

Angry Plaintiff in Jail

California recently turned defamation law on its ear, as regards calling the police. Let me set the scene with a hypothetical that will demonstrate what California has done.

You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guest’s cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.

Bob is quite a jerk, and is already on probation for a prior criminal offense. If he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.

He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”

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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.

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SLAPP032 – The 3 Most-Often Miscited Anti-SLAPP Cases

California SLAPP Law

We begin Episode 32 with the discussion of how Morris & Stone just defeated an anti-SLAPP motion. I reveal the common (and fatal) mistake made by defense counsel when they pursue anti-SLAPP motions.

And on the topic of mistakes, based on my prior article, we turn to the three cases that counsel almost always cite improperly when defending against an anti-SLAPP motion. Listen and find out what these three cases really stand for:

Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858.

Weinberg v. Feisel (2003) 110 Cal.App.4th 1122.

Flatley v. Mauro (2006) 39 Cal.4th 299.

Finally, in the after-show, I reveal a successful strategy to obtain a trial continuance, even when the judge has already said no.

Three Common Mistakes by Defense Counsel on Anti-SLAPP Motions

Mistakes

Like shooting fish in a barrel (although I have never understood why, if the fish are already in a barrel, there would be any need to shoot them).

I (telephonically) attended oral argument on an anti-SLAPP hearing this morning, and it again demonstrated that attorneys are just not thinking through their motions. I was brought in to defend against the motion. In reviewing the motion, I immediately recognized that the attorney for the defendant had made three major mistakes, any one of which would likely guarantee denial of the motion.

Just the facts, ma’am.

This case involves one of those horrible situations where someone stops taking care of their home, and it eventually falls into such disrepair that the government has to step in and mandate repairs, with the threat of selling the home.

The homeowner (the defendant in our case) went along with the process. The homeowner’s insurer actually stepped up and paid for the repairs, and Defendant agreed to all of the planned construction. But in the end, he did not feel that the home had retained its original character, and took to the internet to vent against our client, the contractor who had performed the repairs.

As is so often the case, Defendant was not satisfied to merely tell the true story, explaining why he was unhappy. In these situations, Defendants want to hurt the business they blame for their travails, so they embellish. He made up more and more lies, to the point that he was saying the contractor was never authorized to make repairs, and had “stolen” the insurance proceeds.

Before I was involved, the contractor had sued Defendant for defamation. I was brought in to oppose the anti-SLAPP motion.

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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 »

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.

 

SLAPP030 – Is it Defamatory to Call Someone a “Crook?”

California SLAPP Law

Fun, fun, fun in the California sun at Morris & Stone.

In just the past couple of weeks, we (1) Obtained a 3.9 million dollar defamation verdict for one client; (2) Got another client out of a 7 million dollar case on a motion for summary judgment, and (3) Were awarded our fees following a successful anti-SLAPP motion, even though the motion did not dispose of every cause of action.

In Episode 30 of the California SLAPP Law Podcast, we discuss the facts of the aforementioned anti-SLAPP motion, and the motion for attorney fees that followed. This particular anti-SLAPP motion presented some really interesting issues, as did the motion for attorney fees.

As to the anti-SLAPP motion, we examine whether it can ever be defamatory to call someone a crook. It might seem so, but how exactly does one define a crook in order to offer evidence that one is not a crook?

As to the motion for attorney fees, how does the court handle such a request when the underlying anti-SLAPP motion was only partially successful?

Along the way, we are again reminded why it is so crucial to know the procedural rules governing any motion you bring.

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.

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

11 Orchard Road, Suite 106
Lake Forest, CA 92630

(714) 954-0700

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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.