California SLAPP Law

It is typically the case that as I review a complaint for the first time, I spot the allegations that are based on protected speech, and then consider whether the plaintiff will be able to present a prima facie case under the second prong of the anti-SLAPP analysis.

But lately a number of cases have presented a situation where I immediately recognize that the plaintiff is facing a nearly impossible burden to show a prima facie case. For example, I have had a number of cases with claims for Negligent Infliction of Emotional Distress (NIED). In case you did not get the memo, NIED does not really exist as an independent claim; it is just a claim for negligence. But since a defendant has no general duty to avoid inflicting emotional distress on a plaintiff, a claim captioned as a claim for NIED is almost always dead on arrival. (I have provided the case authority at the end of this article.)

So instead of first seeing the protected speech, I spot the failure of the second prong of the anti-SLAPP analysis, and then focus on whether that defective claim was based on protected speech. If so, it presents the opportunity to use an anti-SLAPP motion as a motion for summary judgment.

Allow me to provide a recent example. While I tell the tale, see if you can spot the SLAPP.

The Indemnity Agreement

As always, changing the facts slightly to protect their privacy, my clients (we’ll call them “Clients”) entered into a service contract with Joe Dokes, Inc. The contract contained an indemnity provision, providing that Clients would be responsible for any costs, attorney fees, and damages incurred by Joe Dokes, Inc. as a result of any litigation arising from the contract.

Clients timely made all payments under the contract until they caught Joe Dokes, Inc. acting in a fraudulent manner, and stopped paying on that basis. Joe Dokes, Inc. sued Clients for the fairly nominal amount still due under the contract, and Clients cross-complained against Joe Dokes, Inc. and Joe Dokes individually for the fraud.

Having been sued individually, Joe Dokes came up with the brilliant idea to cross-complain back against Clients under the indemnity provision contained in the contract. The contract was between my clients and Joe Dokes, Inc. This fact was specifically alleged in the original complaint by Joe Dokes, Inc. Nonetheless, Joe Dokes alleged in his individual capacity that he was the sole shareholder and principal of Joe Dokes, Inc., and was therefore a party to the indemnity agreement. All of his causes of action were based on indemnity, pursuant to that agreement.

So what is an attorney to do?

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