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

The general rule is that the California anti-SLAPP statute is to be construed broadly in favor of the protection of speech and petitioning activity. But this does not mean that all "speech or petition activity is protected by section 425.16." Flatley v. Mauro (2003) 39 Cal.4th 299, (referring to)(Lam v. Ngo (2001) 91 Cal.App.4th 832, 851. The First Amendment does not protect violence or other criminal acts.

In the Flatley case, Michael Flatley (of Riverdance fame) sued an Illinois attorney in Los Angeles, California for civil extortion and defamation, among other claims.  The attorney had made certain prelitigation demands directed to Flatley arising out of an alleged rape by Flatley of the attorneys' client. The attorney filed an anti-SLAPP motion claiming that his prelitigation demands were protected under section 425.15. The trial court concluded that the anti-SLAPP statute did not apply because it determined that the attorney's conduct amounted to extortion. The attorney appealed the decision and the appellate court affirmed. The California Supreme Court also affirmed.

The attorney, in his various demand communications, among other statements, threatened to "go public" with the allegations of rape and disseminate press releases to numerous news organizations. He stated that, “[a]ny and all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information [would] be exposed. We are positive the media worldwide will enjoy what they find.”

The high court held that the anti-SLAPP statute does not apply to speech and petitioning activity that is illegal as a matter of law. Interestingly enough, it does not appear that the supreme court intended this decision to have broad application since it also included the following in the majority opinion: "Applying this principle in the specific circumstances of the case before us, we agree with the Court of Appeal's conclusion.

I suspect the Court wanted to limit its holding so as not to erode the clear legislative intent to read section 425.16 broadly.

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This following is the text of the so-called anti-SLAPP statute:

425.16. (a) The Legislature finds and declares that there has been
a disturbing increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances. The Legislature finds and
declares that it is in the public interest to encourage continued
participation in matters of public significance, and that this
participation should not be chilled through abuse of the judicial
process. To this end, this section shall be construed broadly.
(b) (1) A cause of action against a person arising from any act of
that person in furtherance of the person's right of petition or free
speech under the United States or California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.
(2) In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts
upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a
probability that he or she will prevail on the claim, neither that
determination nor the fact of that determination shall be admissible
in evidence at any later stage of the case, or in any subsequent
action, and no burden of proof or degree of proof otherwise
applicable shall be affected by that determination in any later stage
of the case or in any subsequent proceeding.
(c) In any action subject to subdivision (b), a prevailing
defendant on a special motion to strike shall be entitled to recover
his or her attorney's fees and costs. If the court finds that a
special motion to strike is frivolous or is solely intended to cause
unnecessary delay, the court shall award costs and reasonable
attorney's fees to a plaintiff prevailing on the motion, pursuant to
Section 128.5.
(d) This section shall not apply to any enforcement action brought
in the name of the people of the State of California by the Attorney
General, district attorney, or city attorney, acting as a public
prosecutor.
(e) As used in this section, "act in furtherance of a person's
right of petition or free speech under the United States or
California Constitution in connection with a public issue" includes:
(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law; (2) any written or oral statement or
writing made in connection with an issue under consideration or
review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law; (3) any written or oral
statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest; (4) or any
other conduct in furtherance of the exercise of the constitutional
right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.
(f) The special motion may be filed within 60 days of the service
of the complaint or, in the court's discretion, at any later time
upon terms it deems proper. The motion shall be scheduled by the
clerk of the court for a hearing not more than 30 days after the
service of the motion unless the docket conditions of the court
require a later hearing.
(g) All discovery proceedings in the action shall be stayed upon
the filing of a notice of motion made pursuant to this section. The
stay of discovery shall remain in effect until notice of entry of the
order ruling on the motion. The court, on noticed motion and for
good cause shown, may order that specified discovery be conducted
notwithstanding this subdivision.
(h) For purposes of this section, "complaint" includes
"cross-complaint" and "petition," "plaintiff" includes
"cross-complainant" and "petitioner," and "defendant" includes
"cross-defendant" and "respondent."
(i) An order granting or denying a special motion to strike shall
be appealable under Section 904.1.
(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.
(2) The Judicial Council shall maintain a public record of
information transmitted pursuant to this subdivision for at least
three years, and may store the information on microfilm or other
appropriate electronic media.

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I recently took a much needed hiatus from Twitter because I got super busy with work.  Now I'm back. But while I was gone the whole Twitter Lists phenomenon happened.  Everyone was talking about the benefits of Twitter lists.  No one could even conceive of any possible negative possibilities, which is why I find Michael Gray's post about "How To Use Twitter Lists To Create Reputation Management Problems," so interesting.

If you are concerned with managing your reputation, you need to read this article and consider it carefully.

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1. Defamation/Slander/Libel
2. Business Torts, e.g. Intentional Interference With Contract; Intentional Interference With Prospective Business Advantage; and
3. Intentional Infliction of Emotional Distress Distress (and negligent)

If you are being sued, or if you're an attorney representing a defendant and any one of the causes of action above is present, you need to consider whether to file an anti-SLAPP motion.  Do not believe, however, that these are the only actions subject to an anti-SLAPP motion, but that's another topic for another day.

If you liked this post you're gonna love my free report, "The Ultimate Beginner's Guide To Defamation Law."  CLICK HERE to grab your copy.

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As I've explained in previous posts, one of most common defense motions in response to a complaint for defamation is the anti-SLAPP motion. The beauty of this motion is that it gives the defendant an opportunity to eliminate a lawsuit at an early stage of litigation before litigation becomes cost prohibitive.  Also, if the motion is successful the defendant is awarded attorneys' fees earned in connection with bringing the anti-SLAPP motion.  So, as you can see, this is an extremely powerful weapon in the hands of able defense counsel.

Now, a common question that I get with respect to anti-SLAPP motions is whether it's possible to attempt to strike a single cause of action, rather than an entire complaint.  The reason I get this question, I think, is because the statute (CCP §425.16) uses various terms seemingly interchangeably like "claim," "complaint," and "cause of action."  

But the answer is clear that a single cause of action can be stricken pursuant to case law in cases like:  Kajima Eng. & Const., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929; see Thomas v. Quintero (2005) 126 Cal.App.4th 635, 646.

Being able to strike a single cause of action is important to keep in mind in crafting your litigation strategy.  Eliminating a single cause of action and forcing the plaintiff to pay your attorneys' will hurt his pocketbook and cause him to lose faith in his case, and best of all (although a bit insidious, but true) it may make him lose confidence in his attorney.

Keep this in mind as you decide how to respond to a complaint.

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 The last several posts have focused on absolute privileges. Today we’re going to talk about the qualified privilege, which is a lot more common than you might think.

A qualified privilege essentially means what it appears to mean. It allows the publisher/speaker to make a statement that would otherwise be defamatory without being held liable for making the statement. In other words, it’s a defense. The catch is that the statement must be made without malice (otherwise the privilege never arises in the first place: a fine distinction but that’s precedent for you) and to an interested person.

There are three general situations when this privilege applies:

Common Interest: 

This is by far the most commonly invoked qualified privilege. This is where the publisher makes the alleged defamatory statement to a person who, quite simply, has a common interest in the subject matter of the statement. For example, suppose you are a member of a Homeowner’s Association and you write a letter to the Board expressing your disapproval for the Board President’s in rather harsh terms regarding safety issues. Obviously, you and other board members will have a shared interest in keeping the complex safe. Therefore, unless malice is present, the qualified privilege will overcome a claim of defamation.

Special Relationship: 

This is a statement made by “one who stands in such relation to the person interested as to afford a reasonable ground for supposing motive for the communication innocent.”

Request for Information:

The final category involves a statement made by one “who is requested by the person interested to give the information.” For example, in one case a court held that an employer had a privilege to make certain communications to the media about employees.

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Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

Defamation Defense: Discharge of Official Duty

Defamation Defense: Judicial Proceeding

Defamation Defense: Legislative Proceeding

Defamation Defense: Other Proceedings

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