SCOCA Grants Review in Pivotal anti-SLAPP Case
On May 13, 2015, the California Supreme Court granted review in Baral v. Schnitt to resolve the divide among lower courts regarding whether anti-SLAPP motions can strike so-called “mixed” causes of action.
Source: scocablog.com
This is a very important case in the anti-SLAPP world, and the Supreme Court may finally clear up the competing decisions as regards mixed causes of action.
Here is how these causes of action typically arise. A homeowner is having a dispute with a neighbor and sues for harassment and infliction of emotional distress, alleging that the neighbor has made false police reports, called child protective services, and has left dog poo on his lawn.
Of those allegations, two are protected activities — calling the police and child protective services. The third, involving the dog poo, is not. So if the neighbor brings an anti-SLAPP motion, how should the court deal with these mixed causes of action?
Some courts have held that the entire claim falls under the anti-SLAPP motion, while others have held that the protected activity allegations should be stricken. Others still have held that the claim survives. Hopefully, this review by the California Supreme Court will finally resolve the issue.
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.
Libel Lawsuit against NYTimes for Slavery ‘Not So Bad’ Comments Dismissed
The New York Times won’t be sued for libel over its article quoting a Loyola professor saying slavery was “not so bad,” the Columbia Journalism Review reported.
The professor, Walter Block, said the Times took his comments “out of context” and suggested he “is a racist, a supporter of slavery, and/or against the Civil Rights Act … solely because of racial prejudices,” the judge’s ruling stated.
Source: www.imediaethics.org
This is another example of how, in a defamation action, the speaker gets to define his own words.
It sometimes comes up in my practice that I get a call from a potential client who wants to sue for defamation because someone referred to him as a “stalker.” The caller has looked up the criminal code section that defines “stalker,” and argues that he does not meet the elements, making the accusation false.
That analysis would only be true if the alleged defamer said or wrote, “Joe is a stalker as defined by the criminal code.” But if the defamer merely stated, “Joe is a stalker,” then what he meant by that is crucial. Stated another way, Joe does not get to define the term used by the defamer, unless that definition is reasonable.
This case presented that issue, with an additional layer. Here, a college professor was talking about slavery, and from a specific context, said it was “not so bad.” The reporter from the New York Times who reported on the comment, said that the professor had stated that slavery was “not so bad,” but really didn’t provide the context.
The professor sued for defamation, stating the newspaper article took him out of context; that he didn’t really mean to say that slavery was not so bad.
But here’s the thing, Professor. We don’t have to agree with your interpretation. I get that in your mind, you were attempting to make the point that from an external viewpoint, slaves were fed and clothed, and even got to sing in the fields as you put it, in order to make the point that what made slavery so horrific was its involuntary versus voluntary nature. But the author is free to decide that even in that context, your comment exhibits extreme insensitivity.
The NYT brought an anti-SLAPP motion on that basis, and the trial judge agreed and dismissed the action. “The Court finds that the references made to Block are not capable of defamatory meaning, nor do they place him in a false light,” the judge wrote.
Governor Signs anti-SLAPP Bill, Protecting Calls to Police from Retaliation
A dispute over a campaign sign in 2010 in rural Washington County was the impetus for a new law that will protect a person who calls the police from being sued.
Source: www.twincities.com
Sometimes the law seems so self-evident, until you see a case in another state that does not afford the same protections as California.
I get innumerable calls from potential clients wanting to sue for what they contend were false police reports. In California, calls to the police are protected speech, even if false. Apparently not so in Minnesota, and this case illustrates why it is a really bad idea to allow a criminally charged defendant to use civil court as a means to badger his accusers. At least Minnesota has seen the error of its ways and is amending the anti-SLAPP law.
[UPDATE:] Minnesota learned its lesson, but California’s Legislature abandoned common sense in order to virtue signal. Beginning January 1, 2021, California no longer affords absolute protection for calls made to the police. The privilege is now conditional, and can be overcome by showing that the report was made with malice. You can now be sued for calling the police.
C.A. Upholds Ruling in Suit by Customer Claiming False Arrest
A finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony, the Court of Appeal for this district ruled yesterday.
Source: www.metnews.com
Great case, discussing the elements of malicious prosecution.
I get many calls from clients wanting to sue for defamation and/or malicious prosecution after they are found not guilty of a criminal charge (or if the District Attorney decides not to pursue the case). As this case makes clear, a finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony.
The Court of Appeal ruled that case law has long held that a magistrate’s ruling at the preliminary hearing that prosecutors presented sufficient evidence to bind a defendant over for trial is preclusive on the issue of probable cause on a subsequent malicious prosecution claim.
The justice acknowledged on exception. There can still be a claim for malicious prosecution when the magistrate’s ruling is procured by false testimony, but the exception does not apply where the magistrate directly determined that the allegedly false witness was credible. “Accordingly, the magistrate’s probable cause determination, based on its credibility finding that Casasola testified truthfully about plaintiff’s threat, was sufficient to invoke collateral estoppel.”
It is a really tough burden to pursue a malicious prosecution action based on a criminal prosecution.
Sony, CBS: Actress Can’t Sue for Retaliation Because She Never Applied for Job
Former ‘Young and the Restless’ star Victoria Rowell claims she was refused reemployment after advocating for more African-Americans in soap operas.
Source: www.hollywoodreporter.com
Interesting case with employment law and anti-SLAPP issues.
The plaintiff, an actress, claimed she was retaliated against when she complained that there are not enough African-Americans in soap operas. The only problem is, she never asked for a job. I’m considering bringing an action against the NBA for favoring tall people, even though I’ve never tried out.
The case also includes anti-SLAPP issues, with the defendants managing to get the case transferred from New York, where the anti-SLAPP law does not cover free speech issues, to California where it does.
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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Courtney Love Fails to Get an Appeals Court to Dispense Defamation Lawsuit
A California appeals court sees no evidence that Courtney Love’s fame is on par with Marlon Brando’s. As a result, the rock star will continue fighting a lawsuit from a fashion designer who claims being defamed by Love on social media and Howard Stern’s radio show.
Dawn Simorangkir, a.k.a. the “Boudoir Queen,” is the plaintiff who’s fought Love on and off (and on) for the last six years.
Source: www.hollywoodreporter.com
I first reported on this case about six years ago, and the beat goes on.
A designer named Dawn Simorangkir, aka the “Boudoir Queen”, managed to get on the bad side of Courtney Love, who took to Twitter to call Simorangkir a “thieving prostitute” and the like. Simorangkir sued for defamation, and that action ultimately settled for $430,000.
But Love was undeterred.
She again began talking trash about Simorangkir on various social media, and the designer again sued. This time Love sought to dispose of the action by way of an anti-SLAPP motion.
Will that work? Well, let’s go through the analysis. To prevail on an anti-SLAPP motion, the defendant must first establish that the matter falls under the anti-SLAPP statute, and that requires a showing that the protected speech in question involves a matter of public interest.
“No problem,” said Love’s attorneys, “we can rely on the Marlon Brando case, wherein his housekeeper claimed an invasion of privacy when a television show did a story on how she was named in Brando’s will.” (I didn’t actually hear Love’s attorneys say this, but the story flows better if we assume they did.) In the Marlon Brando case, the court found the housekeeper and the will were matters of public interest because Brando was such a huge celebrity. Following the reasoning of the Brando case, Love’s attorneys argued that this was not a simple matter between two individuals with no public interest, but rather fell under the anti-SLAPP statute because Love’s fame made it a matter of public interest.
But there was a problem. Judge Allan Goodman said, “I knew Marlon Brando, Marlon Brando was a friend of mine, and you, Ms. Love, are no Marlon Brando.” Actually he didn’t say that, but that was the essence of his holding. He simply found that Love’s fame is not enough to make her controversies a matter of public interest.
The takeaway here is that the first prong of the anti-SLAPP analysis is still alive and well. So many controversies are deemed to be matters of public interest that some attorneys fail to focus sufficiently on that prong. But if the issue is between two individuals or limited to a small group, take a hard look at that prong.
See on Scoop.it – California SLAPP Law
Allegations Must be Taken in Context When Considering Anti-SLAPP Motion
I’ve decided to report in detail on this unpublished anti-SLAPP ruling, both because it is an interesting SLAPP case, illustrating some creative thinking, and because it gives an interesting peak behind the curtains regarding how real estate developers create additional revenue streams.
Attorneys unfamiliar with the anti-SLAPP statutes sometimes make the mistake of filing a cross-complaint, or amending a complaint, that includes causes of action that arise from the currently pending litigation itself. Here, after a successful motion for judgment on the pleadings by defendant, the plaintiff amended the complaint, and a single word in the allegations seemed to make reference to something that had occurred during the litigation. The defendant latched onto that word, and claimed that the amended complaint was a SLAPP since it amounted to suing for conduct during the litigation.
The takeaway, if you are disinclined to review the case in detail, is that while the plaintiff must be careful with the wording of the allegations, the defendant cannot be too technical. Allegations are, of course, taken in context.
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