California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

Potential clients and attorneys often ask me what kinds of claims are typically subject to an anti-SLAPP motion. The correct answer is that regardless of the label given a claim, it may still be subject to Code of Civil Procedure 425.16 if it arises from petitioning or free speech activity. Having said that, in general terms, there are some common claims and factual scenarios that give rise to a SLAPP. 

Claims that often trigger anti-SLAPP protection are defamation, malicious prosecution, abuse of process, and business torts like intentional interference with prospective business advantage and intentional interference with contract. While any cause of action may be subject to the statute, including breach of contract, for example, those are the most common claims.

Factual scenarios that come up often are the following:

• Claims based on previous litigation activity: I often see cases that arise from litigation activity. To the average lawyer, they may not be obvious as SLAPPs. For example, a suit for defamation based on an unsuccessful restraining order; or a breach of a covenant not to sue, both of which are subject to the statute. 
• Claims based on consumer conduct: An increasing number of lawsuits arise from negative consumer reviews, for example. These kinds of lawsuits are generally brought by professionals like dentists, doctors, lawyers, and psychiatrists who depend upon their online reputation to generate leads. While each case is different, some patterns emerge. Usually the former client or patient is dissatisfied with services they've received, so they post a critical review on sites like RipOffreport, Yelp, CitySearch, and other such sites.The professional will then bring suit for defamation, intentional interference with prospective economic advantage, and intentional infliction of emotional distress. Sometimes these posts are the work of competitors, but this is rare in my experience. Usually it is because the professional has not satisfied two critical needs of the customer: to be heard and understood. 
• Community Speech: Another common category of SLAPPs involves speech regarding what I call community issues. These may arise either offline or online and will typically involve speech about a public official, like a city councilman, or speech about a proposed redevelopment project.

While SLAPPs come in different varieties, there are certain patterns like the ones mentioned above. Before filing a lawsuit, you should know whether it is potentially subject to an anti-SLAPP motion because of the consequences of the motion: dismissal and possible hefty attorneys' fees.

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Political and sports figures have recently argued that their sex lives are not a matter of public interest. Consider, for example, Herman Cain: in response to allegations from Ginger White that she had a decade-plus affair with him, Mr. Cain's attorney, Lin Wood, said that those kinds of allegations have no place in public discourse and that Cain would not discuss them.

David Beckham, too, insisted in his lawsuit for libel against In Touch magazine that the story about his alleged sexual interaction with a prostitute was not a matter of public interest.

So the question is whether a political candidate's or a world famous athlete's sex life is a matter of public interest. The answer is not so simple and can be argued both ways. Under the first prong of the anti-SLAPP statute, it can contended, under fairly recent authority, that a public issue is anything in which the public is interested. Applying that standard to Beckham's case, one can definitely make a strong argument that the allegations about his sexual dalliances with a prostitute is a matter of public interest. After all, Beckham is internationally recognized as a sex symbol. And there had been previous stories of his alleged marital infidelity. It could also be contended, however, that a public figure's sexual encounters are private and therefore not a matter of public interest. The essence of that argument is that even public figures have some level of privacy to which their entitled. Unfortunately for Beckham, in his case, the District Court determined that the anti-SLAPP statute applied, so his case was dismissed. Apparently he has appealed that decision.

The same analysis could be applied to Mr. Cain's situation as well. Assume he files suit against Ms. White for defamation. She could then file an anti-SLAPP motion. As in the Beckham situation, White could argue that there were previous stories of Cain's alleged inappropriate relationships with women. But unlike Beckham, Cain was never known as a sex symbol nor did he promote himself as such. 

The most interesting aspect of these stories is the idea that any person, let alone a public figure, could lose all right to privacy. No California court has squarely decided this issue in the anti-SLAPP context, but it's only a matter of time.

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Faced with a growing backlash from the public for her mini-marriage to NBA basketball player, Chris Humphries, Kim Kardashian has filed a claim for arbitration alleging breach of a confidentiality agreement and defamation.

I won't recount the details about the wedding extravaganza, which was televised, because I think most people are probably familiar with it (for more background, read this). However, what I will discuss is why I think this latest legal move is probably a good one, assuming that the news accounts accurately describe the nature of the claims.

First, I think this is a good PR move. Not only does it send a strong message that her marriage was NOT bogus or a hoax, but also it allows her to control the story. Now, instead of talking about whether the marriage was fixed or not, people will be talking about the individual who Kardashian claims is defaming her. Further, by pursuing these claims in a private arbitration, she can better control how the story develops in the media. This wouldn't be the case had she opted to file a lawsuit. Of course, she may not have had much of a choice. The alleged confidentiality agreement probably had an arbitration clause in it.

The second reason this is a good move is a legal one: avoiding the anti-SLAPP statute (AKA Special Motion to Strike). Had Kardashian filed a lawsuit in state court I can guarantee that defense counsel would have filed an anti-SLAPP motion. There is no question that Kardashian is in the public eye and that comments regarding her marriage are a matter of public interest, so, a SLAPP motion would be warranted. Likewise, on the second prong, she'd have a very difficult time showing that the defendant made the statements with constitutional malice. However, perhaps her attorneys would argue that the SLAPP statute doesn't apply in the first place given the confidentiality agreement, i.e., that the defendant waived his right to use the SLAPP statute. One thing is certain: the defendant stands a much better chance if he can get the case out of the arbitrator's hands. For now, however, Kardashian seems to have the advantage.

In sum, I think Kardashian made a smart play here. It will definitely be interesting to see how this one plays out.

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I recently saw an article that discussed whether Herman Cain would file a lawsuit for defamation. Cain has apparently hired a defamation specialist to advise and monitor the situation for him, particularly the proposed joint conference by Cain's accusers.

If the question is whether Cain will file a lawsuit for defamation, slander, or libel, whatever you want to call it, the answer is: it's very unlikely. Cain is a public figure. This means that he'd need to show that the accusers made the alleged false and defamatory statements with knowing falsity or a reckless disregard for the truth by clear and convincing evidence. This is a heavy burden to meet, one that very few public figure plaintiffs have been able to satisfy.

Another reason not to sue is the potential application of an anti-SLAPP statute. Depending on the state in which he elects to file suit, his complaint could be subject to speedy dismissal. In about half the states, if a plaintiff files a lawsuit which is based on defendant's free speech or petitioning activity, the defendant can file a motion seeking the dismissal of plaintiff's claims. If the plaintiff cannot show a reasonable probability of prevailing on the merits, the case is dismissed, and in many states, plaintiff is ordered to pay the defendant's attorney's fees. If his suit were to be dismissed, the public would view it as a vindication of Cain's accusers. So it's a big risk.

Finally, filing a lawsuit would put the alleged sexual conduct in issue. In other words, defense counsel would be entitled to dig even deeper into Cain's personal life. Discovery is very broad in civil suits and you can bet that whatever is discovered would be leaked to the media.

I would be very surprised if Cain elects to file suit. I don't see any upside to doing it.

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A common cause of failure on an anti-SLAPP motion is a misunderstanding of the evidentiary burdens each side must satisfy. I suppose its understandable given skeletal analysis found in most of the typical practice guides. And with over 400 published decisions in this area, I suppose it's inevitable that busy practitioners--who are not experts--will overlook some of the SLAPP statute's subtleties. This is why it's important to hire a lawyer that concentrates his practice in this area of law. This is not an area one dabbles in.

In addition to the defendant's initial burden under prong one to show that the acts underlying the causes of action arise from petitioning or free speech activity, defendant has a burden on the second prong, depending on the appellate district. In many districts, defendant has the burden to substantiate its affirmative defenses with competent evidence. Other courts, however, have stated that it's plaintiff's burden to overcome all affirmative defenses by showing that they are not applicable to the case as a matter of law or by a prima facie showing of facts, "which if accepted by the trier of fact, would negate such defenses."

Whatever the prevailing view is, the practitioner must be ready to defend his position. Not knowing these applicable standards is, in my opinion, an unforgivable sin.

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Few lawyers are aware that the anti-SLAPP statue applies at the federal level, although some of its provisions are not applied because they collide with FRCP 56. In other words, at the federal level, in some respects, an anti-SLAPP motion is treated as a summary judgment motion. But even though the SLAPP statute is applied by federal courts to state law claims, district courts have unanimously held that the statute doesn't apply to federal questions in federal courts because it would frustrate substantive federal rights. 

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Although some people prefer to absorb information by text, I know others enjoy video. So here is a link to my Defamation Law Channel on YouTube. Hope you find it helpful. I also discuss matters relating to California Anti-SLAPP law.

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During World War Two, when faced with the menace of the Axis, the greatest criminal conspiracy of all time, President Franklin D. Roosevelt did not hesitate to take a hard stand. 'We will meet force with greater force, violence with greater violence,' he declared. This is the only kind of language some people understand--and the only kind of action they fear (or even take seriously). -- J. Paul Getty

Even though Getty was discussing his son's kidnapping in specific, and the decline of Western civilization in general, his words apply with equal force to certain individuals who use the internet as a weapon to destroy the reputations of others.

Getty has it right: some people only respond to force. It's the only language they understand--and the only action they fear.

Yet many clients have a hard time understanding this. They assume that talking or trying to reason with the defamer will produce results. But they are wrong. The only proper response in these circumstances is to use unremitting, overwhelming force. You must use all legal and ethical means to make this kind of person stop. This means you must file a lawsuit. Then when you get a Judgment, you must enforce it. And after all this if the defamer still doesn't get the hint: you ask the Court to put them in jail. Period.

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I recently wrote a post on my other blog (yes, I have more than one!) called: Adrianos Facchetti? Why Having A Unique Name Is A Double-Edged Sword. There I write about a topic you've probably never thought of but should. Enjoy.

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Both to an individual privately and to all people generally there is one goal at which they aim in what they choose to do and what they avoid. Summarily stated, this is happiness and its parts. 2. Let us, then, for the sake of giving an example of what might be more fully explored elsewhere, grasp what happiness is, simply stated, and the sources of its parts . . . Let happiness be defined as success in life, or as the pleasantest life accompanies with security, or as abundance of possessions and bodies, with the ability to defend and use these things; for all people agree that happiness is pretty much one or more of these

. . .

If happiness is something of this sort, it is necessary for its 'parts' to be good birth, numerous friendships, worthy friendships, wealth, good children, numerous children, a good old age . . . reputation, honor, good luck, virtue; for a person would be most self-sufficient if he had these goods

. . .

Good reputation is a matter of achieving the respect of all people, or of having something of the sort that all or the general public or the good and prudent desire.

- Aristotle, On Rhetoric, Book 1 Chapter 5.

A good reputation, as Aristotle defines it, is a necessary component of achieving happiness; for it is grounded on having achieved the "respect of all people." The lack of a good reputation, therefore, means unhappiness. This is important because it goes to the core of most defamation claims. It's a matter of losing respect in the eyes of your fellow man. 

Are you happy?

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I routinely hear the following kinds of comments from experienced civil litigators in Los Angeles:

In my 40+ years of practice as a business litigator, I've only handled one anti-SLAPP motion and I lost because I missed the 60 day deadline to file a SLAPP motion by just 5 days. (This lawyer is an excellent litigator with experience in nearly every field of law, including securities, intellectual property, real estate, personal injury, malpractice, you name it. But this lawyer fell into one of the many traps awaiting attorneys in the anti-SLAPP statute).

I've been doing litigation for almost 20 years, and I've only encountered one anti-SLAPP motion on the plaintiff's side, and I lost because the other attorney misled and outmaneuvered me. (This lawyer was a solo but now works as a partner for a very large and respected law firm in Los Angeles).

Adrianos, I wish you could have seen my work product in another context, I actually do good work (this was said just after I prevailed on an anti-SLAPP motion and was awarded 100% of my requested non-contingent attorney's fees).

Adrianos, I wish I had called you sooner. (lawyer who was personally served with a lawsuit and only had 2 days in which to file an anti-SLAPP motion).

I don't say any of the above to impress you. I say it to impress upon you the fact that it is important to realize that the anti-SLAPP statute is a specialized area of law. It is highly technical and complex, with somewhere around 400 published decisions interpreting the statute. And, as the above quotes show, experienced anti-SLAPP attorneys are few and far between.

So it is very important that if you are served with a lawsuit that targets your free speech or petitioning activity, usually in the form of claims for defamation, libel, slander, malicious prosecution, abuse of process, intentional infliction of emotional distress, or intentional interference with prospective economic advantage, you need to call an experienced lawyer right away. 

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The dominoes continue to fall, as Texas becomes the 27th state in the union to pass an anti-SLAPP statute. It's about time. 

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There are many reasons why people either succeed or fail in making or opposing anti-SLAPP motions. But by far the most common is the failure to properly deal with evidence. Too often I see plaintiffs spending an inordinate amount of time rebutting defendant's contention that the alleged speech arises under the first prong of the anti-SLAPP statute. Instead, plaintiffs should be focusing on producing evidence to meet their burden under the second prong to show a "probability of prevailing" on the merits. For example, if one of the claims is for defamation, plaintiff should include evidence of damages, which may be required unless the claim is a specific type of defamation.

Typically, parties fail to lay a proper foundation for their evidence, or they attempt to introduce statements which are hearsay. When this happens, a good lawyer will file written objections to the evidence in an effort to get the court to rule that the proposed evidence is inadmissible. This is important for two reasons. First, as a defendant, if you can show that plaintiff's evidence is inadmissible, you may prevail on the anti-SLAPP motion. Second, making written objections (or an objection orally at the hearing) is necessary to preserve those objections on appeal. If you do not make the objection either in writing before the appeal or orally at the hearing on the anti-SLAPP motion, the appellate court treats those objections as waived.

Another point to remember is that it is no longer necessary to ask the court to make a ruling on an objection during the hearing. Since some judges will not provide written rulings to objections to evidence, attorneys used to be required to make an effort to get judges to make those rulings at the hearing, e.g. "Your honor, what is your ruling on Objection No. 3." If the attorney didn't at least make an effort on the record (even if they submitted written objections in advance) the appellate courts would treat the objections as waived for purposes of appellate review. The California Supreme Court changed that rule in 2010. Given the Supreme Court's decision, reviewing courts treat objections in those types of situations as having been overruled. In other words, the evidence will be admitted.

On the flipside, you should only make good objections. Do not try the shotgun approach because judges do not like it. They already have enough work to do and you should endeavor to make their jobs as easy as possible. Only focus on the other side's evidence that may make a difference to your case.

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In an exclusive, the Hollywood Reporter reports that Courtney Love is being sued once again for Twitter Defamation. This time the allegation is that Love defamed one of her former attorneys, by allegedly suggesting that she had been bought off or accepted a bribe.

While I haven't seen the Complaint yet, a couple of things come to mind. First, I can't believe that she's being sued again. I thought she would have learned her lesson by now given the result of her previous lawsuit for defamation. Second, at first glance, the allegation seems pretty serious because it implies a violation of her attorney's ethical duties at best, and potential criminal conduct at worst, both of which amount to libel per se. So damages could be very significant because of Love's star power and the fact that the plaintiff is an attorney. On the other hand, I doubt many people knew about the alleged defamatory statement prior to the filing of the lawsuit. Now everyone knows. 

I wonder if Love's defense attorneys will venture an anti-SLAPP motion again. I bet they do, but I'm not optimistic that it would succeed for the same reasons that her anti-SLAPP motion failed in her previous defamation suit.

Perhaps we will see a lawsuit based on tweets go to trial.

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