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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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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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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I know David Beckham's defeat at the hands of Bauer Publishing is somewhat old news. But no one seems to have commented specifically about the merits of the massive motion for attorney fees filed against Beckham.

Just how much is Bauer seeking in attorneys' fees? More than $250,000 in fees and costs! Just for an anti-SLAPP motion! To give you a point of reference, I'd say that most anti-SLAPP motions are litigated for somewhere between $10,000 and $50,000. Sometimes it's a bit less if it's a fairly straightforward motion. And sometimes it's a bit more if the evidence is voluminous or when the issues involved are novel or complex. There are a handful of cases where courts have granted fee requests in the two to three hundred thousand dollar range. BUT IN THIS CASE? REALLY?

It's hard for me to believe that Bauer's attorneys spent over 500 hours litigating this motion. I am definitely looking forward to reading the opposing and reply papers and, ultimately the Court's decision on this.

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 I know the world isn't fair, but why isn't it ever unfair in my favor? - Bill Watterson, Author of Calvin & Hobbes

Watterson's observation echoes many of the kinds of statements I hear weekly from potential defamation plaintiffs. After listening patiently to their side of the story, (usually several minutes), I begin describing the bad news in detail: Defamation law is decidedly in favor of defendants; especially in California. To state it more broadly, and perhaps in a more even-handed way, California is extremely protective of free speech.

Generally, in order to state a claim for defamation in California, Plaintiff must prove the following elements by a preponderance of the evidence: (1) a publication; (2) of statement of fact;  (3) that is false; (4) defamatory; (5) unprivileged; and that (6) has a natural tendency to injure or causes special damages. Most of the elements seem fairly straightforward at first glance, but they are not. For example, whether a statement is a provably false one is not an easy determination to make in many situations. Many are arguably opinion, which is protected under the First Amendment. Still others are an opinion, which imply a provably false fact, which can be actionable under California law.

There are also many applicable privileges or defenses to a cause of action for defamation. For instance, statements made in an official proceeding (judicial, executive, or administrative) are absolutely protected under Civil Code 47(b). Statements that are not made in such a proceeding, but which are made to a person with a "common interest," may be protected under Civil Code 47(c). In addition, in the absence of malice, statements made by reporters are protected by a so-called reporter's privilege.

Truth is also a complete defense to civil liability for defamation. But the defendant is not required to show that the alleged defamatory statement is true in every particular--only that the gist or sting of the statement is substantially true. Thus a defendant does not need to justify the literal truth of every word of the allegedly defamatory statement.

Another insidious defense is the statue of limitations, especially in internet defamation cases. The statute of limitations is one year for defamation, libel, and slander. But in internet defamation cases the discovery rule does not apply. This means that it doesn't matter when you discovery the alleged injurious material. So if a statement was published on Twitter, Facebook, or a blog in 2007 and you just learned of it in 2011, too bad, so sad. You probably don't have a case. I've seen a couple of opposing attorneys fall into this trap.

Then there is the specter of the anti-SLAPP motion. Where a cause of action arises from petitioning or free speech activity, the defendant may file a motion to dismiss the case entirely at an early stage, before the plaintiff has had an opportunity to conduct discovery. All the defendant needs to show is that the claim arises from petitioning activity or free speech, then the burden of proof shifts to the plaintiff to show that he can probably prevail. If the plaintiff cannot meet his burden, the case is dismissed and the defendant is entitled to his or her attorney fees. In other words, the plaintiff would be required to pay the other guy's attorney fees and costs in defending the SLAPP action. Beyond the mechanics of the SLAPP statute, it is particularly dangerous because many lawyers do not understand it well. I do not know how many times I have heard opposing counsel tell me, "Gee, I wish I had read your blog," before filing their client's complaint. I don't say this to impress you, I say it to impress upon you the fact that you must work with a lawyer who knows this area inside and out. It is very easy to fall into a trap in this area of law.

After I list all of these possibilities to potential clients, understandably, they generally do not wish to proceed. The truth is, that an argument could be made that California Defamation Law is unfair, from a plaintiff's point of view. 

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In what will probably be one of the most significant anti-SLAPP cases of 2011, the First District in Grewal v. Jammu, expressed in no uncertain terms that the anti-SLAPP statute is being abused. Justice Richman, writing for the majority, took the opportunity to detail the particular abuses of Section 425.16, with a not so subtle plea to the Legislature to limit the application of the anti-SLAPP statute.

In support of its conclusion, the Court cites to various amendments to the statute (425.17, in particular), decisional authority expressing concern with the expansion of the anti-SLAPP statute, and the explosion of published and unpublished decisions in this area. The Court maintains that the glut of anti-SLAPP appeals has become a burden on its docket.

The Court's suggested remedy: eliminate the automatic right of appeal to defendants who lose at the trial level. 

While I respect the Court's concerns, eliminating the right to appeal would be a mistake.

The Court's recommendation merely shifts the burden to trial judges. It assumes that judges understand the complexities of the anti-SLAPP statute. While I have the utmost respect for the California Judiciary, my experience is that many trial judges are not very familiar with the anti-SLAPP procedure. And even though Judges make the right decision in most cases, I have personally seen reversible error in a number of situations. For example, some trial judges have refused to carefully consider objections to key evidence, which could have likely changed the outcome of the anti-SLAPP motion.

Eliminating the right to appeal would likewise prolong some cases which have no merit. Discovery would continue, motions would be made, and further burden trial judges. In this respect, the Court's recommendation is akin to dusting. The dust never disappears. It's just moved from one corner of the living room to the other.

I propose an alternative. Rather than eliminate the right to appeal, perhaps the Court could set up a special Division that screens anti-SLAPP appeals, much like the procedure used by the California Supreme Court to determine whether it will review cases. However, the standard would be more relaxed such that review would occur in more cases than in the case of a writ of mandate. Alternatively, the screening process could occur at the trial level. In any case, the legislature could increase the filing fee for anti-SLAPP motions.

There are many ways to tackle this problem. But a wholesale elimination of the right to appeal is not the answer.

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As I wrote about in earlier blog posts, Tennessee congressman Steve Cohen introduced a bill in the House of Representatives called the Citizen Participation Act. It's effectively a Federal anti-SLAPP piece of legislation and seems to be modeled after California's robust anti-SLAPP law. For many reasons, it is very important that this law (or something like it) passes. 

I recently gave my support to the Public Participation Project, which is one of the groups leading the effort to pass the SLAPP law.

Perhaps you should visit their site and give your support as well.

Check it out here: http://www.anti-slapp.org/?q=node/17

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Lutfi scores another important victory. The Second District Court of Appeals, in Los Angeles, affirmed the trial judge's decision denying Spears's (not Britney--her mother) anti-SLAPP motion. If you recall, Spears wrote a book and included some statements about Lufti, which he didn't like very much, to put it mildly. So he sued her claiming libel, defamation, and intentional infliction of emotional distress.

Spears's advanced three main arguments on appeal:

• Lutfi was libel-proof (in other words, his reputation was so bad already that he couldn't possibly have sustained any damage as a result of the statements in the book.)
• Lutfi was a limited purpose figure and couldn't establish actual malice
• The alleged defamatory statements are protected opinions

The Court rejected each of Spears's arguments. Of particular interest was its analysis of the libel-proof doctrine in this case. Because no California court has applied this doctrine to any case, the Court looked to a 2nd circuit decision and a decision from the Central District for guidance. The Court declined to apply the libel doctrine because those cases were factually different than Lufti's case. Specifically, they involved plaintiffs who evidenced a clear propensity for the offending conduct in the past, or, who admitted to committing such conduct. Here, Lufti was neither convicted of any of alleged offenses described in the book, nor did he admit to having committed any of the alleged offenses. So the Court determined that the libel-proof doctrine did not apply.

I think this was a relatively easy decision for the Court to make. Lutfi had plenty of evidence to show a probability of prevailing on the merits. And a fact finder could decide that some of the arguably rhetorical or hyperbolic statements are defamatory when considered in their proper context.

I also believe California should not adopt the libel-proof doctrine for two reasons. First, its application is doubtful in light of recent United States Supreme Court precedent. Second, it would rarely apply and would cause confusion in the law.

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Until recently it was an open question whether an attorney could be held liable jointly and severally with his or her client for attorneys' fees pursuant to the anti-SLAPP statute. But the Second District Court of Appeal, located in Los Angeles, recently put this issue to bed.

In Moore v. Kaufman, Justice Rothschild expounded an excellent analysis and concluded that the anti-SLAPP statute does not provide for an award of attorneys' fees against a losing plaintiff's attorney. Justice Rothschild's analysis boiled down to the following:

• No previous case supports an award of attorneys' fees against a losing plaintiff's attorney
• Nothing in the statute suggests that a court has discretion to award such fees
• Fee awards against attorneys are usually in the form of a sanction and are generally not permitted in "routine fee-shifting provisions" like the anti-SLAPP statute

As I stated above, I believe the court got it right, however, I would have liked to see it analyze a recent federal decision in which the court determined that a law firm was on the hook for $76,275 in attorneys' fees Mory v. City of Chula Vista, Case No. 07-CV-462 JLS (WVG) (Doc. No. 198, filed May 7, 2010). However, I suppose it is a moot point now.

Plaintiffs' attorneys can breathe a collective sigh of relief in regard to this issue. Now they need only worry about properly advising their clients of the potential of an anti-SLAPP motion  in advance of filing a Complaint.

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If you have been reading the California Defamation Law Blog for any period of time, you would know that I enjoy dispelling common misconceptions. A common misunderstanding is that one may not waive his or her right to free speech. Even some lawyers believe this. But they are wrong. The fact is, there are many instances in which a party can contract away the right to speak in the future. For example, signing certain kinds of release or confidentiality agreements. In those cases, a party agrees not to divulge certain information in exchange for a benefit of some kind.

Likewise defendants in defamation cases may agree in a settlement agreement not to repeat certain alleged defamatory comments about the plaintiff. Many defense lawyers resist this based on the mistaken belief that this constitutes a "prior restraint." Not so. The party is merely contracting away the right to speak in advance, regarding specified statements.

I had this argument not too long ago with a Los Angeles lawyer and I should have simply directed him to the following quote from the California Supreme Court in a decision involving the anti-SLAPP statute:

Indeed, as the statute is designed and as we have construed it, a defendant who in fact has validly contracted not to speak or petition has in effect "waived" the right to the anti-SLAPP statute's protection in the event he or she later breaches that contract.

It is clear, therefore, that courts recognize the waiver of one's First Amendment rights.

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"I'd rather have a lot of talent and a little experience than a lot of experience and little talent" - John Wooden

"The error of youth is to believe that intelligence is a substitute for experience, while the error of age is to believe experience is a substitute for intelligence" - Lyman Bryson

Attorneys are typically measured by their education, experience (age/years of practice), and accomplishments. Attorneys who have gone to "better" law schools are deemed by the public to be better attorneys, as are lawyers who have been practicing for a very long time.

But I am here to tell you that where a lawyer went to law school, or how many gray hairs a lawyer has on his or her head, has very little to do with how well a lawyer will handle a case. Some of the best lawyers I have come across went to "sub-par" law schools, and some of the worst I have come across have been practicing law for more than 25 years. So it's not about where or how long.

I think the most important factor in evaluating a lawyer is his talent. I define talent in this context as the ability to spot legal issues, develop legal arguments, devise a litigation strategy, and execute that strategy. But how do you determine if a lawyer has talent? This is difficult, but possible. I would look at what his opponents have said about him. I would also look at the results he has obtained. These are the best indicators, in my opinion.

A close second is the lawyer's experience in the specific area of law for which you need a lawyer's services. If you have been wrongfully terminated, you need a lawyer who focuses his practice on that area. For example, it does not help you if an attorney has practiced for 30 years if he has never handled a wrongful termination case. You need a specialist, however, California only allows attorneys practicing law in certain areas to claim they are a "specialist," e.g., family lawyers, criminal lawyers, and appellate lawyers. Those kinds of lawyers must take a test and meet other requirements to be able to certify that they are specialists in a particular area of law. Lawyers who practice in other areas of law cannot claim they are specialists, even though they may have substantial experience in a given area. So, you'll often see attorneys saying things like: "My practice focuses on elder abuse law," or "I concentrate my practice in the area of libel law," to communicate that they "specialize" (in the traditional sense -- not the sense forbidden by the California Bar) in an area of law.

This brings me to a court decision which prompted me to write this post. In the case of Russell v. Foglio (2008)160 Cal.App.4th 653, the appellate court affirmed the lower court's ruling with regard to defendant's anti-SLAPP motion and held the attorneys' fee award was not an abuse of discretion.

The court rejected plaintiff's argument that defense counsel's hourly rate ($300) was unjustified because defense counsel had only been practicing law for 3 years. Here is what the court wrote:

"Plaintiff attacks the award for Attorney Bray on grounds the $300 per hour rate claimed and allowed was excessive. Plaintiff so contends based on the facts that Bray had been a lawyer only since June 2002, that he had graduated from an unaccredited law school, and that his experience was in family law as opposed to defamation. These facts do not establish an abuse of discretion in the trial court's ruling.

From the standpoint of Bray's capability, experience, and performance, the identity of his law school made no difference. In the same respects, that Bray had become a lawyer two years and eleven months before he undertook the case also was not dispositive. The trial court recognized Bray's representation that he brought to the case far more extensive trial experience than an average junior associate at a law firm would have had. That Bray's experience had arisen in the family law context was also not discrediting. What the court perceived as relevant about that experience was its practical extent. The court referred to Bray's “family law experience” simply as shorthand for his in-court experience.

FN5. It is incorrect for plaintiff to refer to Bray as a “second-year” lawyer. Bray had more than three years licensure when he handled the crucial evidentiary hearing on reconsideration.

Plaintiff's arguments also fail to take into account the court's observations concerning the quality of Bray's performance and the time constraints under which he undertook representation of defendant. These factors supported the court's determination of the value of counsel's work.

Ultimately, while expressing awareness of plaintiff's submission regarding junior associates' billing rates, the court concluded that Bray's experience, the exigency of the case, and “the demonstrated level of performance by counsel” justified the hourly fee level. Given all the circumstances, that ruling was not an abuse of discretion."

The court was mostly correct in ruling the way that it did. It does not matter that an attorney went to an unaccredited law school and has only practiced a short period of time. What matters is the skill displayed and results obtained. That's all the client cares about any way. I did disagree with the court in that the family law experience had little to do with anti-SLAPP law. Anti-SLAPP is a very complicated area of law, and doing family law petitions and the like, does not relate to the anti-SLAPP statute. As a result, I believe the trial court should have reduced the lawyer's fee to reflect his inexperience in the specific area of law.

At the end of the day, it's about talent and experience in the specific area of law. That's it. Do you agree? Write a comment below and share your thoughts.

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This is a question that comes up quite frequently and appears to be a source of some confusion. The law is that motions to strike a state law claim are proper in California Federal courts, e.g., libel, slander, intentional interference with prospective economic advantage. This is so because there is no conflict between the Federal rules and Code of Civil Procedure 425.16(b). Plus, it furthers the purposes of the Erie doctrine.

However, there are some important limitations of note. First, a court may not strike a federal question under the anti-SLAPP statute.

Second, the discovery limiting aspects of 425.16(f) and (g) may not apply.

There is a bit of a split of authority on this issue. Some courts have held that (f) and (g) directly collide with Rule 56 and others have not. For example, the Central District held that there was no collision between Rule 56 and (f) and (g), whereas the Eastern District believed there was. In fact, the Eastern District announced a test to determine whether a court could apply (f) and (g) where either of the three scenarios applied: (1) the factual basis of the case has been developed through discovery or similar prior proceedings to the extent a motion for summary judgment would be appropriate; or (2) the parties agree that further discovery is not necessary, or (3) the only issue presented by the motion is an issue of law and the motion is suitable for decision as a motion to dismiss pursuant to Rule 12(b)(6).

This information is important alike to SLAPPers (defendants) and SLAPPfeasors (plaintiff) for obvious strategic reasons.

Choose your forum carefully, if you have the option to do so.

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As I've mentioned in previous posts numerous times before, upon the filing of an anti-SLAPP motion, "all discovery proceedings" are stayed. However, there is an exception where the Plaintiff can show good cause:

(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.

(Emphasis added).

Now whether "good cause" exists will depend upon the specific circumstances of the case. Some factors courts may consider are: (1) whether the discovery is necessary for the Plaintiff make out a claim; (2) whether the evidence is solely in the possession of the party opposing the requested discovery; and (3) whether the discovery requested is narrowly tailored, or amounts to a "fishing expedition."

Things to look out for and consider:

• Plaintiffs should file an ex parte application for an order shortening time as soon as they get hit with an anti-SLAPP motion and determine that they need discovery. If you simply make an ex parte application seeking to lift the discovery ban under CCP 425.16(g), the court may deny your request because the statute requires a "noticed motion."
• Plaintiffs should only ask for limited discovery, otherwise the court may be inclined to deny your request.
• Defendants should consider stipulating to Plaintiff's requested discovery when it makes sense. If you do not stipulate, make sure you are aware of all the cases that support your position. On the plaintiff's side, I have won a number of ex parte applications to lift the discovery ban because I had a greater command of the law than opposing counsel. In at least one of those instances, had I been on the other side, I believe I could have changed the result by distinguishing a key case.

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I outlined in a previous post how risky it is for a losing plaintiff on an anti-SLAPP motion to appeal a trial court's ruling. The primary reason being that a prevailing defendant may be awarded his attorney's fees for opposing the SLAPP at the trial and appellate levels.

But in this post I want to lay off the doom and gloom (after all, it's another sunny day in Los Angeles) and discuss what the standard of review is if you (whether Plaintiff or Defendant) choose to appeal a trial court's ruling.

A "standard of review" is lawyer-speak for how much deference an appellate court will give to a lower court in reviewing its decision. In the anti-SLAPP context, the standard of review is de novo (which means "anew") because such orders present pure questions of law. This means the appellate court gives no deference to the lower court's ruling and decides the matter with fresh eyes.

This apparently relaxed standard may encourage a losing party to appeal, however, in reality, most appellate decisions end up affirming the trial court's ruling for a number of reasons which I won't go into here. That coupled with the specter of getting hit with attorney's fees should cause an appealing party to stop and think before file an appeal.

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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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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 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 350 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.

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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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In my last post I discussed the 'minimal merit' standard with respect to a plaintiff's burden in opposing an anti-SLAPP motion. Recently, I saw a brief (which prompted this post) where the defendant in its moving papers argued that the plaintiff was required to prove the claim to the court. This is wrong. “A plaintiff is not required ‘to prove the specified claim to the trial court’; rather, so as not to deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.” (Citation omitted). All that is required is to state and substantiate a claim.

But the standard is even more lenient.

According to at least one court, "once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands. Thus, a court need not engage in the time-consuming task of determining whether a plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action to so as to leave only those portions it has determined have merit." (Citation omitted).

Let's use an example to flesh this out a bit, as my Civil Procedure professor used to say. Suppose plaintiff brings a lawsuit for slander based on a number of alleged slanderous statements, e.g. that defendant said the plaintiff was a "fraud," "was convicted of grand theft," and that the plaintiff is a "scheming douchebag." As part of its burden to demonstrate a probability of prevailing on the merits, plaintiff would need to show that the statements were either statements of fact, or were opinions that implied provably false facts.  The statements that plaintiff is a "fraud" and "convicted of grant theft" would arguably be false statements of fact. However, the more colorful statement regarding the plaintiff may not be determined to be a statement of fact. It may be viewed as an epithet in context, which is not actionable.

But no matter. Plaintiff need not substantiate every alleged slanderous statement in order to overcome an anti-SLAPP motion. From my perspective, plaintiff need only show that one of the statements is actionable. Once the plaintiff does so, it has met its burden of 'minimal merit.'

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Fear strikes through the heart of many lawyers at the prospect of having to oppose an anti-SLAPP motion. For one thing, it can lead to the dismissal to your case; not to mention the specter of mandatory attorney's fees.

But let's get one thing straight.  

The standard that plaintiff has to meet is not all that high. If defendant sustains its initial burden to demonstrate that plaintiff's causes of action arise under section 425.16, plaintiff must show that it has a "probability of prevailing" on the merits of each of its causes of action. What does that mean? It sounds like plaintiff must essentially prove that they can win at trial, right? Not so.

A cause of action may only be stricken if it lacks even minimal merit. This threshold is quite low.

Further, one court has said that  “[a] plaintiff is not required ‘to prove the specified claim to the trial court’; rather, so as not to deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.” 

As you can see, the standard is not as high as one might think initially.

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I was researching a legal issue on Westlaw the other day and I ran into an interesting case where a lawyer admitted he wasn't aware of the anti-SLAPP statute. In Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285-286, an attorney brought an action in Sacramento County against co-counsel for various claims. The defendant filed an anti-SLAPP motion over 9 months after the second amended complaint was filed, and as a result, the court denied the anti-SLAPP motion on the ground that it "[was] dilatory, without good cause for failing to bring the motion earlier." Section 425.16(f) states: “The [anti-SLAPP] 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.”

Defendant appealed and his excuse for late filing was that he "did not become aware of the application of the anti-SLAPP statute to the case until it was suggested" by his later attorney--and even his later attorney had been counsel of record for over five months before filing the motion.

While attorneys cannot be expected to know all the law, not knowing a specific area of law is simply not a good excuse under any circumstance, especially not to a judge.

There are many lessons in this case but two good takeaways are:

• It is common for otherwise competent attorneys to be unaware of the anti-SLAPP statute; and
• It is never a good idea to represent yourself in a matter of consequence before a court.

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One of the strangest things to me is how much we worship celebrities in our culture. Turn on any channel or read any newspaper and you'll eventually see a story about a celebrity. This is perplexing and amusing at the same; especially for people like me, who were born and raised in Los Angeles. It's not uncommon to see an actor or director walking around or dining at a restaurant. But really, so what? They're just people, except that they're typically (not always, I know I'm generalizing) self-centered, uninteresting, and the most famous ones have people following them around all the time. These are plenty of reasons not to want to know, let alone hang out with a celebrity.

But there's yet another reason not to associate with celebrities: because the mere association with a celebrity may make you a limited purpose public figure!

In Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, the appellate court held that a housekeeper of Marlon Brando who was mentioned in his will "became involved in an issue of public interest by virtue of being named in Brando's will." This ruling is significant because the mere association with a celebrity may make a person a limited purpose public figure. This means that such a person would potentially be subject to different and higher evidentiary burdens should they decide to file a lawsuit.

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Some people have complained lately that I've been way too focused on anti-SLAPP law here. Well, there's a reason for that. 

It's because SLAPP law plays an important part in just about every defamation case involving matters of public interest. It would be like talking about the Lakers without talking about Lamar Odom or Pau Gasol. Sure Kobe is the star of the team, but the other players invariably play a key role in each game (can you tell that I'm a Lakers fan?).

But I digress.

What I'd like to talk about today is a type of evidence that is routinely introduced by one party in support or opposition to an anti-SLAPP motion, and yet, the receiving party RARELY objects to this type of evidence!

What am I talking about?

I'm talking about judicially noticed court documents and/or declarations.

“ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ [Citation.] The court may in its discretion take judicial notice of any court record in the United States. (Evid.Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records." '

Kilroy v. State (2004) 119 Cal.App.4th 140, 145.

Therefore, while courts make take judicial notice of any "orders, findings of facts and conclusions of law," they may not consider hearsay statements in court records "for their truth unless an independent hearsay exception exists." North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 777.

As my Civil Procedure professor used to say, let's take an example and "flesh this out a bit." Suppose you are a plaintiff who is suing a defendant for defamation based on allegations that you had embezzled money from a publicly traded company. Defendant made the alleged defamatory comments on a forum dedicated to discussion about the publicly traded company.

Defendant files an anti-SLAPP motion and accompanying request for judicial notice of a shoplifting conviction on your record from over 30 years ago (during your misguided/misspent youth). There is a police report and several witness statements included in the court records.

Can the court consider the conviction for its truth? YES, according to the evidence code.

Can the court consider the statements in the police report and witness statements for their truth? NO because they are hearsay and require an independent hearsay exception in order to come in.

See the difference?

This is vitally important because whether you win or lose on an anti-SLAPP motion may depend on evidentiary rulings made by the judge.

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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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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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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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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.

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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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WARNING: This post contains an advanced concept that may only be of interest to California defamation lawyers and other people who deal with anti-SLAPP motions on a regular basis.

OK. With that disclaimer in mind, what in the heck is a "mixed cause of action?"

A "mixed cause of action" means that the underlying allegations of a given claim contain both protected and unprotected conduct under the so-called anti-SLAPP statute.

This is important because a mixed cause of action is subject to the anti-SLAPP statute " . . . if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity." Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287.

Huh? That's what I said to myself when I first read the above quote, so here's how I keep it straight in my head:

1. Does the claim for defamation contain at least one allegation of conduct that is potentially protected?

2. Is the potentially protected conduct central or merely incidental to the unprotected conduct? If it is merely incidental, then the claim for defamation is not subject to section 425.16.

The reason for this rule is to prevent plaintiffs from "immunizing" a cause of action from the anti-SLAPP statute, by including extraneous allegations containing non-protected activity.

The rule seems to accomplish its purpose.

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I'm very excited about this post.

It's not every day that I get to mention Fox News in order to make a point here on the California Defamation Law Blog. So here we go.

Seven individuals sued Fox News, Inc. over alleged defamatory statements made on the Hannity & Colmes show. The main beef was a caption at the bottom of the screen which read "Manhunt at the Border," which was displayed throughout the segment.  That, taken in conjunction with a poster that read "wanted," depicting the plaintiffs was enough for them to file suit.

Plaintiffs interpreted the statement "Manhunt at the Border" to mean that law enforcement was engaged in a manhunt.

Fox News filed an anti-SLAPP motion and asserted numerous defenses and arguments including: (1) that it was a matter of public interest because the issues were being considered by the police; (2) the statement were not "of and concerning" plaintiffs; (3) the statements were true or substantially true; (4) the statements were privileged as a "fair and true report" under Civil Code section 47, subdivision (d); and the statement were protected hyperbole, and opinion.

The trial court determined that the statement in question was privileged as fair and true report and fair comment, opinion, and hyperbole.  Taken in context, the court decided, it was unlikely a viewer would have understood that "Manhunt at the Border" referred to a law enforcement manhunt. Instead, a viewer probably would have understood the statement as hyperbole, a vigorous epithet, or loose and figurative language.

The California Court of Appeal, Fourth District, reviewed the case de novo. 

Given the context of the program, the court determined that no reasonable person could have concluded that the word "manhunt" could have referred to a law enforcement "manhunt."

"Instead, viewed in context, the Manhunt caption was an attention-grabbing or colorful way of referring to Monti's attempts to bring to justice the alleged perpretrators of the attack against him."

But the court didn't stop there. They emphasized that:

"an owner of a cable television news program has broad First Amendment rights to present information in the manner it chooses. The use of captions and graphics has become a popular method for television stations to enhance their news programs and thus to increase viewer audiences. In this case, plaintiffs seeks to isolate a four-word caption from the rest of the story to create a legal basis for their defamation claim. If we were to uphold this approach, it is likely the courts would be faced with a plethora of new claims from viewers dissatisfied with how a particular television caption or graphic has accurately summarized or represented the essence of the news story."

Why I appreciate the majority's clear concern to uphold the First Amendment and afford great protection to cable news providers, their analysis is deeply flawed.

Their argument that no reasonable person viewing the show could have interpreted the "Manhunt at the border" as a manhunt being conducted by law enforcement is totally unsupported. As the dissent correctly points out:

1. Fox News' own definition of "manhunt" refers to a search conducted by a group of individuals
2. California courts have routinely used the word "manhunt" to refer to a search conducted by law enforcement.
3. This interpretation of the word "manhunt" is the most common/reasonable interpretation.

The court simply got it wrong in this case.

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You would think that every anti-SLAPP motion gets granted by the way some "free speech" writers talk. Every victory is a a big deal to them and they make every effort to make sure you know about it.

So this is where I come in.

I'm here to let you know that a goodly sum of anti-SLAPP motions get denied for many reasons, most importantly (in my experience) because the alleged defamatory statements are simply outrageous.

Here's a perfect example:  Howard K. Stern sued Larry Birkhead's former bodyguard (Mark Speer) in Los Angeles for defamation late last year.  Speer filed an anti-SLAPP motion and the court denied the motion.

Speer allegedly said that Stern had stolen money from Anna and that he was putting the money in offshore accounts and making back room deals with Birkhead, among other things.

For more details on this story check out the article here.

Don't think for a minute that just because you file an anti-SLAPP motion you'll have it made.

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California Defamation precedent never ceases to amaze me due to its complexity and fact specific holdings. The case of Nguyen-Lam v. Cao (2009) WL 484589 illustrates my point perfectly.  In Nguyen-Lam, a Vietnamese woman who was slated to become the nation's first Vietnamese superintendent of a public school district, sued the Defendant for slander per se, among other claims.

The Defendant allegedly said that Plaintiff was a "Communist." Plaintiff alleges that this comment caused the school district to rescind her appointment.  The complaint did not allege that Defendant acted with actual malice, at least not in the those words.

Defendant filed an answer containing several affirmative defenses; but no privileges.  He filed an anti-SLAPP motion within a few days, arguing that any statements he made were pursuant to his right of free speech and that Plaintiff was a public figure and that her appointment was a matter of public interest.

The court effectively denied the anti-SLAPP but not in the way one might expect.  Instead of straight-out denying the motion, the court allowed Plaintiff to amend her complaint to allege actual malice. This, in effect, rendered the anti-SLAPP motion moot.

Defendant appealed the decision of the trial court and the appellate court affirmed.

The appellate court affirmed the decision because

"plaintiff's request for amendment to meet her burden on the second prong proceeds from timely submitted facts already before the court."

In other words, since the facts were already before the court, there would be no danger that

"the purpose of the strike procedure will be thwarted with delay, distraction, or increased costs."

Aside from the holding there are some other important lessons to be taken from this case:

• Raise all your important points in an anti-SLAPP motion because you may not raise new points in a reply brief (Here, Defendant did not address why the court should strike the ninth, tenth, or eleventh causes of action; court denied anti-SLAPP motion as to these causes of action holding that it was improper to raise new points in a reply brief for the first time.)
• Plead actual malice clearly and separately from garden variety malice otherwise the court may sustain a demurrer to the complaint.  Use the language of New York Times v. Sullivan. While the court did not squarely address this issue (because it didn't need to) it did seem to find it important enough to discuss it at length.
• Political labels like "Communist" can (not must) be construed as false statements of fact.  Do not assume that it is merely opinion. You should evaluate each statement in dispute with an experienced attorney you trust.

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The vast majority of defamation appeals are taken after a trial court has granted a special motion to strike, also known as an anti-SLAPP motion.  Most of these appeals are affirmed.  In other words, the appeals are unsuccessful.

And while most appeals (other than defamation) are unsuccessful, losing an appeal in the defamation context can be particularly costly.

The reason is attorney fees.

Section 425.16 of the California Code of Civil Procedure (the so-called "anti-SLAPP statute") provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." This includes fees and costs incurred in defending an appeal of an order granting a special motion to strike.

This is effectively a double whammy.  

The defendant is entitled to attorneys fees expended in bringing the motion in the trial court AND defending the losing appeal.  You get hit twice.

And you might be thinking, but how much can this really cost me?

Well, I've seen fee awards ranging anywhere between $15,000 and $30,000, and even more in some instances.  It is very expensive.

So I ask you again . . .  Are you sure you want to file an appeal?

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The Second District of the California Court of Appeals published two cases involving defamation in the span of one week.  The first case involved the Staples Center Owners and this next case deals with a little known issue--the litigation privilege.

The Appellants were defendants in an earlier case where the plaintiffs offered to dismiss one of the defendants on certain conditions.  The plaintiffs in that case sent a settlement letter to the defendants, which the defendants contended was unethical because it sought to create a conflict of interest so that defendant's attorney, in effect, would not able to represent any of the defendants. The defendants sued the plaintiffs for intentional interference with contractual relations and negligence.

The plaintiffs filed an anti-SLAPP motion and they prevailed because the court held that the litigation privilege applied to the settlement letter.

The decision was appealed and was then affirmed.

While this decision is not surprising since a purpose of the litigation privilege is to "promote[] the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests," what is interesting is how the court compared the privilege to the Rules of Professional Conduct.

In short, the court said that the litigation privilege trumps the Rules of Professional Conduct.  This is a powerful statement!

It underscores the importance the court of appeal places on the litigation privilege.

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California legislators passed a law in 1991 known as the "anti-SLAPP" statute to dispose of lawsuits at an early state of litigation that are primarily aimed at chilling speech.  An issue that frequently arises is whether the alleged defamatory statement(s) is a matter of public interest.  If so, the first prong of the statute is satisfied, and the burden shifts to plaintiff to demonstrate a probability of prevailing on the merits.  This can be a difficult question at times, but the California Court of Appeal, Fifth District, did a great job of explaining it.

The case of Hailstone v. Martinez (2008) WL 5340989 (Cal.App. 5 Dist.), involved a claim by a former union employee for defamation.  The former employee, Mr. Hailston, alleged that union officials falsely accused him of a crime and breaches of fiduciary duty.

The defendants filed an anti-SLAPP motion and the trial court denied it on the basis that the alleged defamatory statements did not constitute a matter of public concern.

Defendants appealed the lower court's decision and it was affirmed, but for different reasons.  The appellate court held that the alleged defamatory statements were a matter of public interest, but also that Plaintiff had shown a probability of prevailing on the merits.

Some interesting general principles from the court's decision:

• ". . . public interest is not a mere curiosity . . . the matter should be something of concern to a substantial number of people . . ."
• ". . . there should be a degree of closeness between the challenged statements and the asserted public interest.  The assertion of a broad and amorphous public interest is not sufficient . . ."
• ". . . the focus of the speaker's conduct should be the public interest, not a private controversy. . ."

Here, the court determined that while the matter was of interest to only a limited but definable portion of the public, a union in this case, it was a matter of public interest nonetheless because there was an ongoing controversy (when the alleged statements were made) that was important to union members since the Plaintiff was still a trustee of a trust that provided health and welfare benefits to union members.

Whether a matter is of public interest, as one can see, is fact-sensitive and should be examined closely on a case-by-case basis.

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One of the websites I check often is California Anti-SLAPP Project ("CASP").  CASP was founded in 1991 and has been instrumental in shaping California's anti-SLAPP statute.  To put this statement in perspective, California was the first state to enact a so-called anti-SLAPP statute.  Now nearly thirty states have such a statute.  CASP was also involved in advancing AB2433, a new civil discovery law, which is very protective of online speech.

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The purpose of an anti-SLAPP motion in California is to dispose of lawsuits at an early stage of litigation. The motion must be filed within 60 days of the filing of the complaint, unless a court expressly allows a late filing. CCP § 425.16(f). While courts generally have wide discretion to allow late filings, no court has squarely decided the issue--how long is too long? That is, until now. In Platypus wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, the court decided the question of whether the trial court abused its discretion in granting a party's request to file an anti-SLAPP after 60 days.

The appellate court held that the trial court abused its discretion in allowing the defendant to file a late anti-SLAPP motion nearly two years after the initial complaint was filed. It reasoned that the purpose of the statute is to ensure prompt resolution of cases aimed at chilling speech. The court stated that the defendant failed to offer a "compelling explanation" or any "extenuating circumstances" for the delay. Also key to the court's decision was the fact that the defendant did not file the motion until after the parties had conducted substantial discovery. And since one of the chief reasons behind the anti-SLAPP statute is to protect defendants from being subjected to costly discovery, the court determined that the motion was simply untimely.

The lesson is clear hear: File an anti-SLAPP motion within the 60 day period. It's simply not worth the risk to wait whatever the reason.

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I represent a plaintiff in a defamation case involving internet defamation and offline defamation. The Defendant filed an anti-SLAPP motion. SLAPP is an acronym for Strategic Lawsuits Against Public Participation. These types of motions are meant to dispose of lawsuits at an early stage, which are primarily aimed at chilling speech. We opposed the motion and the court agreed with us. Motion denied.

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Beyond the obvious hurdles of proving a defamation case, a Plaintiff has to worry about what I call the "Bazooka," (mainly because I love saying that word). The Bazooka is an anti-SLAPP motion. Such a motion allows a defendant to dispose of the case at an early stage of litigation and is found in California Civil Code of Procedure section 425.16, et seq. Basically, as long the defendant can show that the lawsuit is directed against free speech, defendant will prevail unless plaintiff can demonstrate a probability of prevailing on the merits. This is no easy task, especially in cases where the defendant contends that plaintiff is a public figure. Thus, the Bazooka.

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Subpoenas are not subject to a motion to strike under Code of Civil Procedure section 425.16, et seq., because they do not constitute a "cause of action." Tendler v. www.jewishsurvivors.blogspot.com, June 10, 2008 164 Cal.App.4th 802. This decision will undoubtedly lead to an increase in requests for subpoenas to ISPs and assist plaintiffs in obtaining the identities of anonymous internet posters.

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Here is an interesting case. In Paterno v. Superior Court (2008) Cal.App.4th 1432 (June 13, 2008) the Court of Appeal (Fourth Appellate District, Division 3) issued a peremptory writ directing the trial court to vacate the order allowing Plaintiff to conduct limited discovery on the issue of malice and to issue a new and different order denying the motion. Among other things, the court held that a showing of provably false assertions of fact is necessary for discovery regarding malice while an anti-SLAPP motion is pending. This appears to be a new requirement in order to lift the discovery ban while an anti-SLAPP motion is pending under California law. If subsequent courts agree with the Paterno decision, it will become more difficult for Plaintiffs to prevail in defamation cases where Defendants raise the issue of malice.

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