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

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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Comparing defamation and trade libel is like comparing apples and oranges. While both are similar (apples and oranges are fruit), they are fundamentally different in other ways.

One key difference between the two is with respect to the harm each is designed to address or protect. Defamation is meant to protect the reputation of the person, whereas trade libel is designed to compensate the plaintiff for pecuniary damage. The reason this distinction is critical is because " . . . trade libel requires pleading and proof of special damages in the form of pecuniary damages." Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3 547, 572. However, proof of special damages solely in the form of pecuniary damages is not required to plead and prove a cause of action for damages.

A second difference is that plaintiff is required to plead and prove that a disparaging statement is false in regard to trade libel, whereas in a cause of action the plaintiff is NOT required to plead that the statements are false in most cases. Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

Third, plaintiff may not recover damages for mental distress upon prevailing on a cause of action for trade libel. He or she is limited to the loss of pecuniary damages caused by the libelous statement or statements.

Understanding the differences between these torts will help you plan your strategy, whether you are the plaintiff or the defendant in a case.

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"Trade libel is defined as an intentional disparagement of the quality of property, which results in pecuniary damage to plaintiff." Erlich v. Etner (1964) 224 Cal.App.2d 69, 73, 36.

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

In this podcast, Sue discusses:

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

You can check out the podcast here: 

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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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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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I'm having way too much fun creating educational videos using a cool site I found called www.xtranormal.com.  The site allows you to create animated videos, which is a lot of fun. I also think it's a great way to continue to share excellent content with you regarding California Defamation Law and so you can "see" what a defamation lawyer looks like.

You can check out the following  videos I made on my NEW Defamation Law Channel on Youtube:

Internet Defamation Lawyer: Introduction

Internet Defamation: Dealing With Negative Customer Reviews

How To Avoid Being Sued On Your Blog

If you liked this post please subscribe to the California Defamation Law Newsletter to receive a FREE copy of the "The Ultimate Beginner's Guide To Defamation Law."

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Let's get straight to the point on this post because we have a lot of ground to cover. So what is the California Shield law and who does it protect?

The Shield law gives certain legal protections (more on these later) to news providers (more on this later as well!) by allowing news providers to keep their unnamed sources confidential and keep confidential any unpublished information obtained during the news gathering process.

The law is set forth in article 2 section 2 of the California Constitution. This is important because it means there can be no statutory exceptions.

Who the shield protects

It protects a "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service" and a "radio or television news reporter or other person connected with or employed by a radio or television."

OK. So it's obvious that the Shield protects Old Media and perhaps established New Media Outfits like Huffington Post and TechDirt. But what about the little guys and gals? What about freelancers? What about BLOGGERS who aren't affiliated with an established media outlet?

I'll give you the answer in a second . . . But first, let's consider whether bloggers should be given such protection at all?

I know, such talk is considered "blasphemous" in some circles (I know who you are) but really, do bloggers deserve the shield's protections?

On the one hand I understand that freedom of speech/press is one of our most fundamental rights and that it should be applied to foster--not prevent speech whenever and wherever possible

On the other hand, think about all of the moonlit bloggers who are not accountable whatsoever (short of a defamation lawsuit) for what they write or say. As an internet defamation lawyer, I see it everyday: bloggers who publish the most patently false, defamatory, and disgusting statements about my clients.

The reason news media outlets are given protection are because they are accountable to the public for what they write. Think about it, if a media outlet is viewed as untrustworthy, they'll lose market share and eventually go out of business, unless they change their ways.

But a blogger has no such accountability. Blogging is virtually costless and he or she can spread as much rumor, speculation, inuuendo, and in some cases, outright lies, as he or wishes to do so.

Now don't get me wrong, I don't want to muzzle bloggers. But I do believe the Shield law should be limited.

Alas, however, what I think does not matter in this case because California courts have said their peace.

Bloggers are protected under California law. And that's that.

What the shield protects

The Shield law protects news people from being held in contempt of court for not revealing a source or producing information unpublished information obtained during newsgathering. It does not protect the reporter from other sanctions, e.g. discovery sanctions when reporter/journalist/organization is a party to a lawsuit.

The Exception

There is a common law (this means case law if you're not a lawyer) exception where not disclosing the information would violate a criminal defendant's 6th amendment right to a fair trial.

Do you think all bloggers deserve the same protections as media outlets? I'd like to know what you think. Please leave a comment down below.

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I had the great privilege to be a part of the Entertainment Law Update: Episode 3: Bloggers, Journalists, and Defamation. Click here to listen to the recording and hear what a defamation lawyer sounds like.

Why should you listen?

• You'll learn how bloggers can take advantage of a law that was originally intended to protect reporters (I've never mentioned this on the California Defamation Law Blog before!).
• You'll learn what Sarah Palin and Michael Jackson have in common.
• If you're an attorney, you may be eligible to receive MCLE credit.

And a whole lot more!

[Editor's note: a previous version of this post stated incorrectly that MCLE credit would be FREE. MCLE credit will be offered eventually for a nominal fee.]

Check it out now. Just click here.

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