SLAPP012 – Three Ways to Bring an Anti-SLAPP Motion Against an Ambiguous Complaint
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.
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Posted in Judge Dismisses Slander Lawsuit Filed By Gang Crackdown Defendants
Judge Thomas Anderle has dismissed a lawsuit filed against the City of Santa Barbara, police chief Cam Sanchez, and police spokesperson Sgt. Riley Harwood by 10 people who claim they were the victims of slander and emotional distress when they were named in an ongoing gang suppression operation and when their mugshots were displayed during a November 2013 press conference on the crackdown. The ruling also allows the city to recover its attorney’s fees.
Source: www.independent.com
Ouch. When this case was filed, I predicted it would end like this. When will attorneys learn?
In the case, the plaintiffs’ mugshots were shown in conjunction with a “gang suppression operation”. They took umbrage, claiming that while they had all indeed been arrested as part of the operation, they were not gang members. They claimed such an allegation caused all kinds of emotional distress.
Let’s freeze right there. As I explain in excruciating detail at WhatIsDefamation.com, to a certain extent, the speaker of the alleged defamation gets to define their own terms. Defendants here may define gang member as “someone who gets arrested during a gang suppression operation”.
But aside from this reality, it is not enough to show that the statements were false. Because this was a matter of public interest, the Plaintiffs had to show that the defendants acted with malice.
Counsel for Plaintiffs was seeking $1 million per client. He fell a little short. Instead, these Plaintiffs will get to split the cost of the defendants’ attorney fees.
See on Scoop.it – California SLAPP Law
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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Yelp Asks California High Court to Slap Down Restaurateur’s Suit Over Review Filter | Thomson Reuters Blog
Yelp’s statements to consumers about the accuracy of its review-filter software are protected speech, the website operator has told the California Supreme Court.
In an Aug. 28 petition for review, Yelp urges the high court to overturn a recent appeals court decision allowing restaurateur James Demetriades to proceed with his false-advertising suit against the site. The company says the state’s anti-SLAPP statute protects Yelp’s statements about the review filter.
Source: Thomson Reuters
I discussed this case at length in the 10th episode of the California SLAPP Law Podcast. The tables have been turned on Yelp. After suing one law firm for alleged fake reviews, this plaintiff is suing Yelp for fake reviews about itself. Yelp claims that its reviews are trustworthy, despite all evidence to the contrary.
Nonetheless, it pursued an anti-SLAPP motion against this claim for false advertising, and lost. It is now appealing that loss to the California Supreme Court.
Michael Mann Brief Lays Out Climate Change Defamation Theory – Climate Science Watch
In a brief filed today in the DC Court of Appeals as part of his defamation lawsuit against the National Review and the Competitive Enterprise Institute, Michael Mann once again argued his case and requested that the Court proceed to adjudicate the merits of Defendants’ appeal of the trial court’s denial of their motion to dismiss. The stated intention of Dr. Mann’s request is to expedite moving to trial on a case that has been long-delayed in procedural tangles.
Source: www.climatesciencewatch.org
This climate change defamation case has been an interesting one to follow. It was falsely assumed by many that the suit would not survive an anti-SLAPP motion because it is based on a dispute over global warming, and that is a hotly-debated issue. However, the anti-SLAPP motion failed because the defamation arises from the claim that the research was conducted fraudulently. That is an allegation that can be proven true or false, and therefore is not opinion.
See on Scoop.it – California SLAPP Law
The Weirdest Story About a Conservative Obsession, a Convicted Bomber, and Taylor Swift You Have Ever Read
Benghazi, Robin Williams, Islam, Twitter, and a convicted bomber from the 1970s came together in a court case against right-wing bloggers.
Source: www.thedailybeast.com
A very entertaining story about a guy who likes to sue, illustrating why a federal anti-SLAPP law might not be a bad idea.
See on Scoop.it – California SLAPP Law
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.
Latham Sued For Malicious Prosecution
Yesterday, a California appellate court overturned the lower court’s dismissal of a malicious prosecution claim against Biglaw mainstay Latham & Watkins. According to the opinion, the lower court was wrong on the statute of limitations, but the opinion also went out of its way to express just how likely the plaintiffs were to prevail on the merits of their claim that Latham doggedly pursued them on a “non-viable” legal theory.
Latham still has an opportunity to defend itself, but the language of this opinion is certainly not encouraging.
The plaintiff already recovered over $1.6 million in fees from Latham’s client, let’s see how they do against the firm…
Source: abovethelaw.com
Shame on the Latham & Watkins law firm.
I have proposed a law akin to the anti-SLAPP statute, which would apply to companies who seek to prevent former employees from creating competing businesses, and this case illustrates why.
The anti-SLAPP statute was passed because companies and individuals would use the time and expense of litigation as a means to silence criticism. If someone is saying something you don’t like, just sue them. The critic is then faced with the prospect of spending tens of thousands of dollars on a defense, or just ceasing the criticism.
In the case of employees who leave a company to start a competing business, the business brings suit claiming the use of “trade secrets,” and ties the former employees up in years of litigation; all the time knowing that the trade secrets do not exist and are certainly not being used. Sound familiar?
The Uniform Trade Secrets Act (UTSA) affords some protection to employees in this position, since it provides for the award of attorney fees to the employees if they prevail in the action, and the court determines that the action was brought in bad faith. But that does little to prevent the misuse of trade secret claims by companies wanting to stifle competition, since they can often bankrupt the former employees and force them to capitulate long before the employees can prevail in the action.
In this case, the plaintiff company brought in experts to testify that the former employees, no matter how good their intentions, had to be prevented from competing under the doctrine of “inevitable disclosure.” One problem, dear experts, inevitable disclosure is not a viable theory in California.
In any event, in this case the former employees beat the bogus suit, and were awarded $1.6 million in attorney fees against the company. They then brought a malicious prosecution action, and Latham & Watkins responded with an anti-SLAPP motion, arguing, inter alia, that the malicious prosecution action was barred by the statute of limitations. The trial court granted the anti-SLAPP motion on that basis.
[UPDATE 6/26/2015] On appeal, the Court of Appeal affirmed the trial court’s decision to grant the anti-SLAPP motion, but on a different basis. The Court of Appeal found that the trial court erred in concluding that the action was barred by the statute of limitations, but nonetheless affirmed the ruling on the basis of the “Interim Adverse Judgment Rule” (the Rule).
During the trial court proceedings, the employees had brought a motion for summary judgment. The trial court had denied the motion, finding that there were triable issues of fact. Under the Rule, if a dispositive motion is brought, and the action survives that motion, then it cannot be later said that the action was without merit. This is true even though the trial court later specifically found that the action had been brought in bad faith.
For this reason, the malicious prosecution action failed because an element of that claim is that the action was brought without probable cause, but if the claim survived a motion for summary judgment, that establishes that the action at least presented triable issues.
A malicious prosecution action in essence automatically falls under the anti-SLAPP statute, since it involves a party’s right of redress. The first prong is therefore met. Here, the burden then shifted to the employees to show that they were more likely than not to prevail on the malicious prosecution action, and they could not do so since the Rule established that the action was not brought without probable cause, regardless of the court’s later determination of bad faith.
There is logic to the Rule. When a party and its attorney are deciding whether to bring a legal action, they have a certain universe of information and documentation available. From that universe, they decide if there is probable cause for the action. If the action survives a motion for summary judgment, that means that the court agreed that the universe contained sufficient information in support of the action, since the court found triable issues.
The fact that the court later enters judgment in favor of defendants and even makes a determination of bad faith does not change that fact. Those determinations are made with the benefit of 20/20 hindsight, after all the evidence is presented, which is a different viewpoint than the plaintiff originally had when making the determination.
More Exciting Anti-SLAPP Victories at Morris & Stone
Today we follow up on a couple of our cases, which were reported on the California SLAPP Law Podcast, episodes 8 and 9, which led to anti-SLAPP victories.
The Case of the Evil Yogurt Maker
In Episode 8, I told the tale of the Evil Yogurt Maker. I changed the nature of the businesses involved so I could tell the story, and made the plaintiff a yogurt maker. My client had called him out on some false advertising claims, and the Evil Yogurt Maker responded by bringing a defamation action.
Our client was a sophisticated businessman who had really done his research. Before calling us, he already knew about the anti-SLAPP laws in general, and was familiar with Code of Civil Procedure section 425.17 in particular. That is the section that exempts certain business versus business actions from the anti-SLAPP statutes.
Our client had been advised by other attorneys that he could not respond to the defamation action with an anti-SLAPP motion, specifically because of section 425.17. We disagreed. Although this was a business versus business action, section 425.17 has a number of requirements before it applies, including the fact that the alleged “defamer” had to be directing its remarks to likely customers. Here, the remarks had been directed to regulatory agencies.
Upon the filing of the anti-SLAPP motion, the Plaintiff cried “Uncle!” and the case went away.
Using Discovery to Harass
This one involves a victory on the way to an anti-SLAPP victory. In Episode 9, and in this article, I discussed the case we are handling, wherein a company is attempting to use the litigation process to keep our client from competing. In typical fashion when a company is trying to thwart competition, the Plaintiff company filed an action, making the usual nonsensical claims that the defendant is using trade secrets. In these actions, the Plaintiff knows they will never prevail if the case goes to trial, but they attempt to make the process so expensive and burdensome that the defendant agrees to find another line of work. (Perhaps California next needs to pass legislation that applies an anti-SLAPP approach to actions designed to frustrate competition.)
In these sorts of actions, the Plaintiff’s two primary harassment tools are injunctions and discovery. Prior counsel in the action had already defeated Plaintiff’s attempt to obtain an injunction, so Plaintiff’s counsel was using discovery and threats of motions to compel to harass.
As a new form of harassment, Plaintiffs then amended their complaint to add four causes of action for defamation, and we responded with an anti-SLAPP motion, which stayed all discovery in the action.
I predicted that, contrary to all law, Plaintiff’s counsel would go to court and ask for leave to continue with discovery relating to the other causes of action and defendants. You see, section 425.16 specifically provides that a plaintiff can request leave from the stay in order to conduct discovery on issues related to the anti-SLAPP, but that discovery is very proscribed. It not only has to be related to the issues raised in the anti-SLAPP motion, it must go to specific defenses. Indeed, the defendant can eliminate the request for discovery by simply agreeing to waive whatever defense the plaintiff is requesting leave to conduct discovery on. Under no circumstances would a plaintiff be permitted to continue discovery on the other causes of action not related to the special motion to strike.
But that didn’t keep Plaintiffs from asking. One could say it never hurts to ask, I suppose, but isn’t there something to be said for intellectual integrity?
We received notice of an ex parte application, wherein Plaintiff’s counsel was seeking an earlier hearing date on a motion for relief from the discovery stay. Due to docket conditions, our anti-SLAPP motion won’t be heard until February 2015, and the first available date for the motion for relief from the discovery stay was March 2015. Since that is after the anti-SLAPP motion, it will be moot.
Here is how we opposed the motion for an earlier hearing date. We acknowledged that of course motions to shorten time should be liberally granted, but here the request was for a pointless motion. Plaintiff isn’t requesting leave to conduct necessary discovery related to the anti-SLAPP motion, which is the only discovery that is permitted following the filing of the motion. Here, Plaintiff specifically requested leave to conduct ONLY discovery NOT related to the anti-SLAPP motion. We therefore argued that the requested relief was pointless. This court’s docket is so backed up that it takes seven months to have a motion heard. Why give one of those precious motion slots to someone bringing a pointless motion?
The court apparently agreed. Motion DENIED.
SLAPP010 – Travolta and Yelp Anti-SLAPP Motions
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.
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