California Defamation Law Blog : California Defamation Lawyer & Attorney : Adrianos Facchetti Law Firm : Los Angeles CA : Defamation Law Blog

I understand very well that lawyers have an obligation to zealously advocate on behalf of their clients. However, there are certain tactics which attorneys should never employ. One such tactic is to insert irrelevant matter in a pleading in order to gain a PR advantage over a defendant (e.g., personal details about somebody's life, irrelevant and prejudicial allegations). 

Celebrity defamation lawyers do it all the time, perhaps more than other lawyers.

I imagine that some of these lawyers succumb to pressure from their clients, or, perhaps, they believe this technique is effective.

But I believe it is ineffective for a number of reasons.

First, courts see right through it. They recognize that these types of allegations are nothing more than an attempt to prejudice the defendant in the eyes of the public and the court.

Second, I believe it decreases the likelihood that a case will settle because it creates more antipathy between the parties. While this may please a small minority of defense lawyers who are being paid by the hour, it is bad news for the client.

Third, it results in a "tit-for-tat" situation where the defendant feels compelled to respond with its own set of invective allegations.

Fourth, Judges simply do not like it when lawyers employ these kind of tactics, and in some cases, it may negatively affect the client.

Instead of inserting these kinds of irrelevant allegations in a pleading, lawyers should strive to draft concise complaints, including only the facts necessary to state a cause of action.

This would promote judicial economy and is a more efficient way to litigate a case (which is usually better for a client.)

About the Author: Adrianos Facchetti is a Defamation Lawyer located in Los Angeles, California. He practices law in the areas of defamation, libel, and slander law. 

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California's anti-SLAPP statute (CCP § 425.16(c)) provides that a "prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. The fee award is not discretionary--it is mandatory--and the fees can be very significant.

The purpose behind this rule is to discourage strategic lawsuits against public participation by imposing the litigation costs on the plaintiff.

In determining the amount of fees awardable to the prevailing defendant, the court will apply something called the "lodestar" approach. The lodestar is the number of hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar work. The court may take into consideration other facts in setting the lodestar, e.g., the complexity of the case, the skill of counsel in defending the case, the success achieved, and other such factors.

At the end of the day, it is important to understand that this area of law is highly specialized and that it requires experience. You will need an attorney who has experience arguing these types of motions in order to persuade the court of the reasonableness or the unreasonableness (depending on which side you're on) of the fees requested.

If you liked this post, please subscribe to the California Defamation Law Newsletter to receive the Ultimate Beginner's Guide to Defamation Law. I hope you enjoy it.

The Author: Adrianos Facchetti is a Defamation Lawyer located in Los Angeles, California. He practices in the areas of defamation, slander, and libel law. He also has successfully brought and opposed anti-SLAPP motions on behalf of his clients.

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One of the most devastating listings you can have is a "scam" listing for your name or your company's brand name on the Internet. I know this because people call me nearly every day and tell me that someone has written something defamatory about them on the Web.

However, there are ways to deal with this, and one particular dynamite strategy which I stumbled across about a year and a half ago is explained really well in Michael Graywolf's SEO Blog Post here. 

I came across this concept in researching a certain internet marketer with a certain penchant for surfing. When I googled his name I discovered a listing that read: "Name, is he a scam?" That title was so compelling that I just had to click on it and find out whether or not this guy was a scam artist. 

But an interesting thing happened when I clicked on the link: The article was not written by a disgruntled customer. Instead, it appeared to have been written by him and it explained why he was so great. This accomplished two very important things: (1) It ranked really well for his brand name + the word "scam" and (2) it totally defused the notion that he was a scammer. Mission accomplished.

You can try this as well, except that you may not want to limit it to the word "scam." You may want to create a separate "sucks" site or a "ripoff" site since those terms are often used as well.

If you liked this post please consider subscribing to my newsletter to get a copy of the "The Ultimate Beginner's Guide to Defamation Law."

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The question of whether a statement constitutes an actionable statement or merely protected opinion is one of the most difficult questions for a judge to consider in the defamation context. In fact, the California Supreme Court said in a case: "The distinction as to what is a statement of fact and what is a statement of opinion is frequently a difficult one."

The general rule is that in order to be actionable, a statement must declare or imply a provably false fact. Subjective expressions, opinions, rhetoric, hyperbole, and the like, are generally protected. In other words, they are not actionable.

But what does that mean?

I thought it would be helpful to give you some examples of the types of statements which have been held not to be actionable:

• Stating that a political opponent was a "thief" or a "liar" was determined to be hyperbole, and therefore protected speech.
• Stating that a lawyer had used "sleazy tactics" and that the judge had a "dim view of the defense tactics" was not actionable.
• Stating that a person was a "loser wannabe lawyer" and a "creepazoid attorney" were viewed as rhetorical hyperbole that could not be reasonably understood as stating facts.
• The use of metaphoric expressions such as "booby," "baying in the ocean breezes," and keep him honest," were held to be non-actionable subjective expressions of opinion.
• Stating that a reality T.V. show contestant was a "chickenbutt," "local loser," and "big skank" were "unquestionably statements of the speaker's subjective judgment," and therefore not actionable.

As you can see, the line between what is and what is not actionable can be difficult to determine. I hope that the above examples are helpful. 

If you liked this post, consider getting my report, "The Ultimate Beginner's Guide To Defamation Law."

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Here is a list of the California Supreme Court's 24 decisions to date regarding the SLAPP statute. This is a great starting point to learn about this very complicated and interesting area of law. Here they are in reverse chronological order.

1. Simpson Strong-Tie Company Inc. v. Pierce Gore (2010) WL 1948283
2. Vargas v. City of Salinas (2009) 46 Cal.4th 1
3. In re Episcopal Church Cases (2009) 45 Cal.4th 467
4. Club Members For An Honest Election v. Sierra Club (2008) 45 Cal.4th 309
5. Freeman v. Schack (2007) 154 Cal.App.4th 719
6. Taus v. Loftus (2007) 40 Cal.4th 683
7. Kolar v. Donahue, McIntosh & Hammerton (2006) 1532
8. Barrett v. Rosenthal (2006) 40 Cal.4th 33
9. S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374
10. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260
11. Flatley v. Mauro (2006) 39 Cal.4th 299
12. Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192
13. Rusheen v. Cohen (2006) 37 Cal.4th 1048
14. Premier Medical Management Sytems, Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550
15. Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180
16. Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679
17. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553
18. Zamos v. Stroud (2004) 32 Cal.4th 958
19. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728
20. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53
21. Navellier v. Sletten (2002) 29 Cal.4th 82
22. Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811
23. Ketchum v. Moses (2001) 24 Cal.4th 1122
24. Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106

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I tell prospective clients on almost a daily basis that they need to protect their reputation on the internet before the unthinkable occurs--before they are defamed. Unfortunately for most of them, the defamation has already happened and we are faced with the challenge of dealing with a permanent negative. But you can choose to start protecting yourself today. 

How can you do this? Well, I'm glad you asked because this was the subject of a webinar I did last year for Legal Practice Pro. The title of the webinar was: "Protecting and Maximizing Your Online Search Engine Reputation." I'm providing the audio recording to you at no charge just for being one of my loyal readers (the sound is a bit fuzzy due to the microphone I was using, but some of the tips we give on the recording are very valuable).

I hope you enjoy it and let me know what you think of it in the comments below.

Protecting Yourself Before Internet Defamation Occurs.

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I was not surprised last week when a Judge said that anti-SLAPP is a complicated area of law—it most certainly is. There are well over 200 published decisions on the subject, including several California Supreme court decisions. I often tell other lawyers that they need to be very careful in crafting their papers in support of or in opposition to an anti-SLAPP motion. One such piece of advice I often give is to be sure to comply with section 425.16(j)(1).

Section 425.16(j)(1) states:

“(j)(1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees.”

This means that a party filing or opposing an anti-SLAPP motion must promptly transmit an endorsed copy of the caption page to the Judicial Council.

But what happens if the moving party fails to do so? Can the court deny the motion based on failure to comply with this provision alone?

Well, I came across an unpublished California decision in which the court decided that very question in the negative.

Here’s why:

• The statute does not specify a penalty for non-compliance
• There is no case law interpreting the statute to provide for a penalty for non-compliance
• It was reasonable to conclude that if the legislature wanted to create such a penalty, it would have expressly done so
• There was no prejudice to the other party

I think the court reached the right decision. The purpose of subdivision (j) is to monitor the number of anti-SLAPP motions and decisions to determine its effect—not to punish a non-complying party. However, you don't want to be in the position of making the bulleted arguments mentioned above. So, make sure you promptly transmit an endorsed copy of the caption page to the Judicial Council. You can do so by e-mail at: SLAPP@jud.ca.gov.

If you liked this post, please click here to receive a copy of my report, the "Ultimate Beginner's Guide to Defamation Law."

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As I sit here and enjoy another sunny day in Los Angeles, California, I think to myself, "man, I'm lucky." I get to litigate cases which intrigue me, and get to help people resolve their disputes without resorting to self-help (in most instances).

But you're not here to listen to my idle musings.

You're reading this because you want to know what's the single biggest weapon to knock out a defamation lawsuit post-anti-SLAPP motion.

Now, my guess is that you've probably already tried filing an anti-SLAPP motion and you lost . . .

And . . .

You don't want to go trial because you know it's a big risk and it could end up costing you a lot of money (aside from the attorney's fees).

So what is this weapon of choice in defamation cases?

It's the almighty Motion for Summary Judgment.

What you might know is that it has the potential to knock out each of your opponent's claims.

However, what you might not know is that it is particularly potent in the defamation and/or invasion of privacy context.

Specifically, courts have held that:

"Summary judgment is a favored remedy in defamation and invasion-of-privacy cases due to the chilling effect of protracted litigation on First Amendment rights."

and . . .

“[T]he courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case. In the absence of such showing, the courts are inclined to grant the motion and do not permit the case to proceed past the summary judgment stage.”

The message is clear to defendants:

All things being equal, the court is likely to rule in your favor.

I just shared an extremely important piece information with you that most attorneys don't even know about. If you enjoyed it, and you want to get more great information, click here to get the "Ultimate Beginner's Guide To Defamation Law."

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Every once and a while I come across a pro se litigant on the other side of the case (note: pro se litigant means someone who is representing him or herself), and this can be a good thing, but it can also be a major irritant

On the positive end, as a lawyer, you have a tremendous advantage against your adversary and you can really do a number on him or her if they don't follow proper procedure. However, it can be a real pain in the neck because pro se litigants often times make strange arguments (which causes you to do additional research), and courts often give self-represented litigants wider latitude to make procedural errors.

But you can (and you should) remind the court that the California Supreme Court has held that pro se litigants are not entitled to special treatment and are not exempted from the Code of Civil Procedure or the Rules of Court.

This could have a major impact on your case. For example, it could determine whether a court will sustain a demurrer with or without leave to amend. Or, it could determine the outcome of an anti-SLAPP motion if the defendant failed to properly judicially notice a key document.

Remember this the next time you square up against a pro se party.

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