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

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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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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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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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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