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

This has been an exciting year here at the California Defamation Law Blog, so I thought it'd be a good idea to highlight our top 10 favorite posts, considering page views, comments, and other forms of reader feedback. I hope you revisit and enjoy these posts. Here's to an even better 2010!

Here they are:

1. Do You Have A Case For Defamation?
2. The Three Types Of Damages In Defamation Cases
3. Small Businesses Strike Back
4. Los Angeles Superior Court Reduces Operations In Wake Of Financial Crisis
5. Twitterers Beware! Courtney Love Sues For Tweets
6. Defamation's Greatest Hits
7. The Tale Of A Model, A Blogger, And Internet Anonymity
8. Defamation Defenses Series
9. What Is The California Shield Law?
10. Perez Hilton Threatens To Sue Kirstie Alley For Twitter Defamation

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Enough!

Enough of the vague allegations that leave defamation defense counsel (like myself) wondering what you mean when you plead, for example, that "defendant made statements indicating that plaintiff is dishonest and is a liar." That is not enough to properly state a cause of action for libel or defamation!

“The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint. [Citations.]” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5, 284 Cal.Rptr. 244.)

Failing to specifically identify each and every alleged libelous statement may lead to serious consequences.

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Once a defendant makes its threshold showing that a complaint arises under protected activity, the plaintiff must demonstrate a probability of prevailing on the merits. This means a plaintiff must state and substantiate a legally sufficient claim. Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass'n (2006) 136 Cal.App.4th 464. Stated another way, plaintiff "'must demonstrate the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26, citing, Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.

"If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his burden in resisting the motion. (See Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1018-1019, 26 Cal.Rptr.3d 350 (Vogel ); FN7 Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018-1019, 132 Cal.Rptr.2d 602 [“[S]pecial motions to strike pursuant to section 425.16 ‘operate “like a demurrer or motion for summary judgment in ‘reverse.’ ” ' (Briggs, supra, 19 Cal.4th at p. 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 718-719, 34 Cal.Rptr.2d 898, 882 P.2d 894." (Emphasis added).

Just like a demurrer, if a plaintiff fails to state a cause of action it will be stricken. Therefore, it is critically important for a plaintiff to carefully draft its complaint.  Plaintiff must plead sufficient facts in its complaint in order to state each cause of action. It may not be enough for plaintiff to state certain facts for the first time in its opposition to an anti-SLAPP motion.

Plaintiff beware.

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Tennessee Congressman Steve Cohen recently introduced H.R. 4364, which is a proposed federal anti-SLAPP law (I mentioned this in an earlier post here).

If passed, this could have a significant impact on the legal landscape nationwide.

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As I wrote in an earlier post this week, the parties to an anti-SLAPP motion must present competent, admissible evidence. Such evidence is usually presented in a declaration, which is where most people make a very common and totally avoidable mistake.

It usually looks like this:

"I am informed and believe that John Doe claims he is an accredited physical therapist and has practiced physical therapy for over ten years, which to my knowledge, could not be true."

Can you tell me what's wrong with the above hypothetical allegation? Yep. You guessed it.

The above allegation is hearsay and "declarations on a special motion to strike a SLAPP suit ((strategic lawsuit against public participation)) . . . may not include averments on information and belief."). See Evans v. Unkow (1995) 38 Cal.App.4th 1490.

This is such a simple rule and yet many attorneys violate it, sometimes repeatedly in a single declaration.

Don't make the same mistake.

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I came across a case the other day which spelled out an unsexy, but no less important concept of anti-SLAPP law. Not knowing this concept may spell doom whether you're bringing or opposing an anti-SLAPP motion.

While it is unsurprising that many in pro per parties miss the boat on this one, many attorneys also screw this one up.

What am I talking about? I'm talking about the type of evidence you need to present to the court when dealing with an anti-SLAPP motion.

Once a defendant makes a prima facie showing that plaintiff's lawsuit arises from protected activity as defined in CCP § 425.16, the burden then shifts to plaintiff to establish a probability of prevailing on the merits.

In this regard, " . . . plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment." Premier Med. Mgmt Systems, Inc. v. California Ins. Guar. Ass'n (2006) 136 Cal.App.4th 464, 476.

What kind of evidence does the plaintiff need to produce? It needs to be competent evidence which would be admissible at trial. Chavez v. Mendoza (2001) 94 Cal.App.4th 260, 291.

Therefore, "declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, or conclusory are to be disregarded." Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26; (citing) Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dis. (2003) 106 Cal.App.4th 1219, 1238, 1240.

This is a big deal because a court can disregard evidence that is not competent or otherwise admissible.

I see declarations all the time which are argumentative, conclusory, lack foundation, and contain hearsay. I object all day long (only if the objection is proper, of course) to these kinds of allegations and my experience is the court is all too happy to sustain them.

Make sure you adduce competent, admissible evidence. And if you're on the other side, make sure you make your objections.

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I pointed out last week here that anti-SLAPP law is much more complicated and nuanced than you might expect, and therefore, that it could present a legal malpractice TRAP for the unwary. I repeat: drafting an anti-SLAPP motion is not like doing your average demurrer for failure to state a cause of action or motion to strike. It is much more time intensive (in vast majority of cases) and there are well over 350 appellate decisions on the subject. So be careful and become informed.

Anyhow, here's  another example of what I'm talking about (I'll add more blog posts about this in the future as I discover additional pitfalls):

Suppose you're a plaintiff and defendant files an anti-SLAPP motion, which is granted by the court, thereby striking your entire complaint. Defendant immediately files a separate motion for attorneys' fees. You're thinking about appealing the order granting the motion to strike, but you decide, for a number reasons, that you'll wait until the court decides the motion for attorneys' fees.

Bad decision.

The time to appeal an order on an anti-SLAPP motion begins to run when the order is entered by the judge, without regard to any later motion for attorneys' fees. This means you can't wait until the judge decides the motion for attorneys' fees to appeal the order on the anti-SLAPP motion.  See Russell v. Foglio (2008) 160 Cal.App.4th 653, 659-661.

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You are a plaintiff in a lawsuit and the defendant filed and won an anti-SLAPP motion striking your entire complaint. May a court grant you leave to amend the complaint? In other words, will the court let you "fix the problem" with your complaint.

No. Simmons v. Allstate Co. (2001) 92 Cal.App.4th 1068, 1073.

The purpose of the anti-SLAPP statute is to eliminate meritless lawsuits at an early stage of litigation before it becomes too expensive to defend. Allowing plaintiffs to amend a complaint after a court has granted an anti-SLAPP motion would run contrary to the state purpose of section 425.16.

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You might expect that a statement of decision is required on an order for an anti-SLAPP motion. Such a motion involves important interests (Constitutional interests) and is much more involved than your average motion (demurrer, motion to strike). It requires the parties to submit evidence which would be admissible at trial, has the potential to end a case, and such an order is immediately appealable.

Given the above, wouldn't it seem fair to require a court to issue a statement of decision and explain its reasoning?

Unfortunately, the answer is that a court is NOT required to issue such a statement pursuant to Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620.

Lien is a short but well-written decision.

The general rule is that statements of decision are limited to trials. CCP § 632. There are some exceptions, however, such as proceedings involving custody of a minor and " . . . a motion to amend judgment to add a judgment debtor on an alter ego theory."

In determining whether an exception to the rule may lie:

" . . courts balance (1) the importance of the issues at stake in the proceeding, including the significance of the rights affected and the magnitude of the potential adverse effect on those rights; and (2) whether appellate review can be effectively accomplished even in the absence of express findings."

(Citations omitted).

The decision acknowledged that anti-SLAPP motions involved important issues, however, it also found that a court does not "try" issues of fact because a court does not weight the evidence in an anti-SLAPP motion.

Further, the court determined that "the absence of factual findings has not precluded effective [appellate] review."

Therefore, an exception to section 632 is not warranted for anti-SLAPP motions and a statement of decision is not required.

Is this result fair? Do you believe courts should be required to explain their reasoning in decisions involving an anti-SLAPP motion? Discuss.

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The mere threat of an anti-SLAPP motion (or serving the motion on the other party) may be sufficient to cause them to dismiss the suit before a hearing on the merits. Under those circumstances, are there consequences for the dismissing party?

The court in Moore faced this issue and presented it clearly:

"This appeal addresses the question whether the plaintiff in a SLAPP suite (a Strategic Lawsuit Against Public Participation) can, by the device of dismissing the SLAPP prior to a hearing on the defendant's motion to strike the complaint, avoid paying the attorney's fees incurred by the defendant in defending the suit."

Defendant filed a cross-complaint and then Plaintiff filed an anti-SLAPP motion.  Defendant dismissed its cross-complaint before the hearing on the motion to strike. Plaintiff made a motion to recover its attorneys' fees and the trial court denied Plaintiff's request because it could not be said that Plaintiff was the "prevailing party" under section 425.16(c) since there was no hearing on the matter.

Plaintiff appealed the ruling and the Court of Appeal reversed and remanded.

Moore held that appellant had the right to have his anti-SLAPP motion heard even though the cross-complaint had been dismissed prior to the hearing. It looked to the stated purpose of the anti-SLAPP, which is to give financial relief to a victim of a SLAPP suit and punish a person who files such a suit. It reasoned, correctly in my view, that allowing a person to file a SLAPP suit and then withdraw it prior to a hearing would frustrate the purpose of the statute.

This does not mean that a person who files an anti-SLAPP motion in this scenario would be automatically entitled to attorney's fees. The court would have to determine the merits of the motion.

" . . . a plaintiff's voluntary dismissal of a suit, after a section 425.16 motion has been filed, neither automatically precludes a court from awarding a defendant attorney's fees and costs under that section, nor automatically requires such an award."

The moral of this story: Make sure your suit is solid before you file it if it appears that it may be subject to an anti-SLAPP motion.

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I was at a Kiwanis club meeting the other day and the topic of Tiger Woods came up. Someone mentioned that Tiger was in deep trouble (an obvious observation) and began to rattle off the names of each of Tiger's mistresses and then there was some generally commentary about Tiger's "transgressions." All in good taste, of course.

What struck me about this conversation was the amount of detail some of my fellow Kiwanians knew about Tiger's dilemma. I mean, all the guys at my table were well-educated men over the age of 50. They're certainly not the type of guys who'd watch Entertainment Tonight or check out the latest celebrity gossip at TMZ.com. Know what I mean?

And yet they knew so much about a golfing celebrity's love life, which brings me to the point of this post.

Are the details of a celebrity's love life a matter of public interest for purposes of the anti-SLAPP statute? 

One would think not given that there other more weighty issues of public interest which deserve debate such as political speech, child abuse, homelessness, AIDS, etc. etc. Whether Tiger cheated with 2 or 10 women or is not really of great public significance. Right?

Not so say the California courts. 

Details of a celebrity's life can be a matter of public interest if they involve issues in which the public is interested. Stated another way, the issue does not need to be "significant" as long as the public is interested in it. Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027.

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The so-called anti-SLAPP statute (CCP § 425.16) was enacted in California in 1992 and has been amended a number of times since then.  There are over 350 published appellate decisions interpreting section 425.16 and several California Supreme Court decisions as well.

The average attorney does not encounter a SLAPP suit very often in his or practice. I have spoken to a number of attorneys practicing more than 20 years and most of them have minimal experience in this area of law.

Consequently, anti-SLAPP law can be a legal malpractice trap for the unwary attorney, which is why you need to hire an anti-SLAPP expert or someone with substantial experience in this area of law.

So here are some general issues to look out for in advising a potential or current client:

If you represent a potential plaintiff make sure to review the case with an eye for a potential anti-SLAPP motion. There are certain causes of action that are commonly subject to an anti-SLAPP motion, which you should be aware of. Be sure to advise the client (if applicable) that the complaint may be subject to attack via an anti-SLAPP motion and advise them of the potential consequences, i.e. mandatory attorneys' fees in the event the defendant prevails and the limitation on discovery while the motion is pending. Bottom line, your client must be made aware of the potential risks in initiating such a lawsuit.

You also need to consider whether it is possible to draft the complaint in such a way as to avoid the application of the anti-SLAPP statute. If you could have easily drafted it to avoid an anti-SLAPP motion and you didn't and the defendant is successful, you could be facing a lawsuit for malpractice.

I know some of this stuff seems obvious, but it can get tricky.

Let's switch perspectives. If you're a defense lawyer you need to consider your litigation strategy very carefully and here's why: Suppose you decide to file a demurrer (before you file the anti-SLAPP) because you believe the claim is barred by the statute of limitations or the litigation privilege. And suppose the demurrer is sustained without leave to amend. Well, you're the hero because you won, right? NO. Not necessarily. This is true because had you filed an anti-SLAPP motion the client would have been entitled to mandatory attorney fees. Your decision to file a demurrer may have cost the client thousands of dollars in attorney fees.

Take another example: Suppose you elect not to file an anti-SLAPP motion and prevail on a motion for summary judgment. Here, not only did you potentially deprive a client of his attorneys' (assuming he would have won the anti-SLAPP motion) but it probably would have cost him a lot less money because discovery is stayed upon filing of the anti-SLAPP motion. It could go the other way as well. Suppose you lose the motion for summary judgment motion. Well, at that point you pretty much have to either settle or try the case, both of which may not be acceptable options for your client. However, had you filed the anti-SLAPP motion and lost, you'd still have an opportunity to appeal the decision before going any further.

Do you see how easy it might be to fall in anyone of the above traps? But, now you know so you'll advise your clients accordingly.

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Enrico Schaefer over at Traverse Legal alerted me to this podcast that a colleague of his hosted with reputation management pioneer Sue Scheff. I have discussed Sue's harrowing story and her book Google Bomb (co-written with attorney John dozier, Jr.) in a previous post.

In this podcast, Sue discusses:

• The definition of a Google Bomb
• Why defamation lawsuits are difficult to prove
• Why it is important to monitor your reputation
• Which reputation management service she uses
• And much, much more

You can check out the podcast here: 

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"De mortuis nil nisi bonum"

We've all heard the phrase "speak no ill of the dead," right? It's a phrase that's been passed down through the ages and I think most times people speak rather favorably about the departed. But not always . . .

Now, admittedly, I hate to write about such a morbid topic around the holidays (I suppose I should have written this around Halloween) but It's a topic that seems to come up enough that it merits a post: defamation of a deceased person.

It comes up in one of two ways usually:

1. A potential defendant has made critical statements about a person who has recently died and they are concerned that members of the dead person's family will sue them for defamation.
2. A member or representative of an estate (or family member) discovers several harsh and potentially defamatory statements about their loved one on the Internet. Typically, the representative of the estate wishes to preserve the loved one's good name for commercial reasons.

In any event, in California a cause of action does not lie for defamation of a dead person plain and simple. Saucer v. Giroux (1929) 54 C.A. 732, 733, 202 P. 887; Kelly v. Johnson Publishing Co. (1958) 160 C.A.2d 718, 723, 325 P.2d 659. The reason is that Defamation is a tort which is a civil wrong with respect to a person's reputation. Dead people don't have a reputation in the eyes of the law. For this reason, surviving relatives will not prevail if they bring a cause of action for defamation to protect the good name of the deceased. Nor can a defamation action lie to protect an estate.

I suppose this is hardly surprising. What is interesting, however, is that defaming a dead person used to be a crime in California. Under former Penal Code sections 248 and 249, if one published a statement that "tended to blacken the memory of one who is dead," it was a crime! It's almost hard to believe, but it's true.

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A less common but no less important defense to a cause of action for defamation is the defense of consent. If the defendant can show that the plaintiff consented to the publication of the alleged defamatory statement or statements, it operates as a complete defense. In other words, defendant wins.

Under what circumstances has the doctrine of consent been successful? Well, I'm glad you asked.

In one case a school superintendent was demoted and requested a statement of reasons from the school board. The school board did so in a confidential letter, which included the allegation that the superintendent had taken part in distributing fake election flyers. Apparently the superintendent was not pleased so he submitted the letter to a newspaper and the newspaper published the letter.. The court held that plaintiff' consented to the publication of the letter.

In other instances a person may consent to a third party or an organization investigating him and publishing its findings. This would constitute consent as well.

In any event, consent is a form of absolute privilege. While it does not come up very often, It is a total defense. Therefore it is important for any practitioner to be aware of it in case it appears in a fact pattern.

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A section 425.16 motion (AKA anti-SLAPP motion) must be filed no later than 60 days after service of the complaint or amended complaint. Of course, a court has discretion to allow an anti-SLAPP motion to be filed after 60 days. CCP 425.16(f).

In addition, unlike other motions to strike (or a demurrer), an anti-SLAPP motion may be heard before or after a defendant files an answer.

But you still only have 60 days to file the motion. The time to file an anti-SLAPP motion is not extended unless the court orders it so. Therefore, it may be advisable while another motion is pending to make an ex parte motion and request that the court extend the time for filing the anti-SLAPP motion.

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The purpose of the so-called “SLAPP” statute is to eliminate lawsuits brought “primarily to chill the valid exercise of the constitutional right of freedom of speech and petition for the redress of grievances.” Code Civ. Proc. Section 425.16(a).

Courts engage in a two-part analysis focusing first on whether the disputed cause of action arises from protected activity under the statute, and if it does, proceeding secondly to whether the plaintiff can establish a probability of prevailing on the merits. Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576.  

Statements or writings made in a public place or forum are protect activity under section 425.16(e)(3) if they are connected with an issue of public interest.

But what is a public place or forum?

It has been defined as: " . . . a place open to the use of the general public for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Kurwa v. Harrington, Foxx, Dubrow & Canter LLP (2007) 146 Cal.App.4th 841, 846.

The term "public form" for purposes of anti-SLAPP analysis, includes settings and contexts not covered by the First Amendment.

Internet websites are a public forum where they " . . . are accessible to anyone who chooses to visit the site." Kronemyer v. Internet Movie Database (2007) 150 Cal.App.4th 941, 950.

Parks, streets, public squares, and other public places are public forums. Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1125-1126 (overruled on other grounds: citation omitted).

Interestingly enough, courts differ as to whether news media publications (e.g. newspapers, magazines) are a public forum. 

Some courts believe news media publications are not a public forum because access is limited, in that editors have final authority as to what is published. Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130-1131. In contrast, other courts have held that a local newspaper or a magazine is a public forum. Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039; Maranatha Corrections, LLC v. Dept. of Corrections & Rehab. (2008) 158 Cal.App.4th 1075, 1086.

This is a split in authority that the California Supreme Court needs to resolve.

Here's why:

suppose a blog post is written by a staff writer of the Los Angeles Times about unscrupulous mortgage lending practices. The post is an expose about a specific mortgage lending company and is extremely damaging, if the statements in the post are true.

Are the statements made in a public forum? It does not appear that they would be under Wiesel. The news media defendant would be unable to avail itself of section 425.15(e)(3), even if the allegations were without merit, therefore.

Take the hypothetical even further, imagine that in response to the blog post a reader posts a comment to the blog, which is potentially actionable defamation (also assume that the comments are not moderated). Does this now become a public forum because the editor has chosen not to moderate the comments, and therefore, does not retain final authority as to the content appearing on the post? Or, does the fact that the editor (or the company, likely) has chosen not to moderate the comments means he or she has relinquished his or her "final authority" as to what is published?

Do you see the problem here? This is a question which needs to be resolved sooner than later.

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You probably thought I was going to write that Amanda Knox was convicted of murder. And while you're correct that Ms. Knox was convicted of that crime in Italy today, that's not what I was going to write.

Did you know that Ms. Knox was also convicted of defamation?

It's true. Ms. Knox implicated another man in the murder earlier in the investigation and, guess what, defamation happens to be a crime in Italy. 

Now, as I've said before defamation is a crime in many other countries and even in some of the united states.

So here's the point of the post.

Even though this story is a matter of widespread public because it involves an american young woman who was convicted of murder in a foreign country, it is also significant because it is a high-profile case about criminal defamation.  But, of course, no one is talking about this.

I have my thoughts on whether defamation should be punishable as a criminal offense, but I am going to reserve my opinion until I hear from you.

What do you think? Do you believe defamation should be a crime? If so, how should it be applied?

I would love to hear from you. Leave a comment below. 

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You're a plaintiff and you just received an anti-SLAPP motion from the defendant. Your lawyer reviews the motion and determines that it is persuasive and is likely to result in a victory for the defendant, unless your complaint is amended. Is the court required to permit an amendment under section 425.16? Does the court have discretion to allow you to amend the complaint?

The answer is not so simple.

The purpose of section 425.16 is to eliminate so-called SLAPP suits at an early stage of litigation before a defendant is required to spend a significant sum of money defending the litigation.  (SLAPP is an acronym for Strategic Lawsuit Against Public Participation). 

Therefore, it would seem contrary to the objective of the statute to allow plaintiff to plead around an anti-SLAPP motion, and thereby extend the litigation.

On the other hand, in California, there is a strong policy in favor of liberally construing pleadings and permitting amendments where it is in the interests of justice.

But that's just talk. All that matters is what the cases say on the subject.

The cases appear to be in agreement in that there is no express right in section 425.16 to be granted leave to amend a complaint. Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1052, 1054-1056.

In terms of discretion to amend, there appears to be some leeway because a court determined that:

"[the] trial court did not err in permitting plaintiff to amend her complaint to plead actual malice in conformity with the proof presented at the hearing on the strike motion."

Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 873.

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This is a brand new case (filed yesterday) by the California Court of Appeal, Second District, located in Los Angeles. Guessous v. Chrome Hearts, LLC (2009) WL 4263833.

The plaintiffs are Mohammed Amal Guessous ("Guessous") and Five Bis.  Guessous is a U.S. citizen and resident of Los Angeles. He has an ownership interest in Five Bis, a French limited liability company. Five Bis sells clothing, jewelry and leather products.

The defendant is Chrome Hearts, LLC, ("Chrome") an American luxury brand that sells apparel, clothing, jewelry, and accessories.

Chrome sued Guessous (and others) in U.S District Court for trademark and copyright infringement in two separate actions in 1996 and 1998.

The parties entered into a settlement agreement in 1999, whereby it appeared Chrome agreed not to sue Guessous for trademark infringement, trade dress, unfair competition, e.g., etc., ever again, except for claims related to Guessous' alleged use of the Chrome Hearts' mark.

Chrome sued FiveBis in 2007 in the Paris Court of First Instance for trade mark infringement and sought to enjoin FiveBis use of the Chrome Heart marks. FiveBis claimed the settlement agreement prevented Chrome from filing the lawsuit. The court disagreed and FiveBis appealed that decision to the Paris Court of Appeals. The parisian appellate court affirmed the decision of the lower court.

Chrome then filed another action for trademark infringement in December of 2007.

Guessous subsequently filed an action in the Los Angeles Superior Court for breach of contract and declaratory relief. He claimed the settlement agreement prevented Chrome from suing in France. Chrome filed an anti-SLAPP motion. The trial court ruled that the action did meet the first prong of the anti-SLAPP statute, but that plaintiffs had established a probability of prevailing on the merits. Therefore, the motion was denied.

Chrome appealed the decision and plaintiffs cross-appealed.

The central issue before the California Court of Appeal was whether the filing of a lawsuit in a foreign country constituted protected conduct under the first prong of the anti-SLAPP statute.  It decided in the negative.

The basis of its decision was two-fold:

1. that a plain reading of the statute limits the "petitioning or free speech activity to that made pursuant to rights granted by the United States or California Constitution, and neither Constitution grants a United States citizen the right to petition a foreign government,"; and
2. a review of the legislative history supports this conclusion.

Consequently, the order denying the motion to strike was affirmed and plaintiffs are to recover their costs on appeal.

This decision is pretty clear: Filing a lawsuit in a foreign jurisdiction does not constitute petitioning activity or free speech under the California anti-SLAPP statute.

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The California Court of Appeal, Sixth District, answered this question in Sheppard v. Lightpost Museum Fund (2006) 146 Cal.App.4th 654.

In that case the court held that a superior court cannot " . . . grant a motion to strike an arbitration claim filed only in an agreed arbitral forum and not asserted by the claimant in any complaint, cross-complaint or petition filed in court."

In other words, an arbitration claim is not subject to an anti-SLAPP motion. The court came to this conclusion for two main reasons: (1) a plain reading of the statute reveals that arbitration claims are not included in the statute; and (2) the purpose of the statute is to prevent abuses of the judicial process and the judicial process is very much different than an arbitration.

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