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

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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which will insulate you from liability for defamation. This usually comes into play because people mistakenly believe that only facts are actionable defamation. Wrong. An opinion can form the basis of a cause of action for defamation (slander, libel, and trade libel too) if it implies undisclosed defamatory facts.

So just because you say "in my opinion, Joe Shmoe is a fraud," doesn't mean you're automatically protected by the First Amendment. The court would look at the statement in its context to determine whether it implies a provably false assertion of fact. "The use of interrogative language alone does not entitle statements to constitutional protection where . . . they otherwise can be understood as implying defamatory fact." Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1004.

Nor can you get away (necessarily) by putting "I think" in front of an otherwise defamatory remark. Jackson v. Paramount Pictures Corp. 68 Cal.App.4th 10, 30 (citations omitted) ("It would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think."')

The lesson here is that there are no magic words. What matters is the substance/tenor/context of each statement.

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

Here they are:

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

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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'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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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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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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Total read time: 2 minutes 49 seconds.

"The truth is incontrovertible, malice may attack it, ignorance may deride it, but in the end; there it is." -Winston Churchill

Truth is a complete defense to a claim of defamation.  

It is the great equalizer in any libel or slander suit. It is what the plaintiff's defamation lawyer fears the most; that what his client's accuser says is true. It does not matter that the defendant made the statement out of malice or out of bad faith, so long as the statement is true. Washer v. Bank of America (1948) 87 Cal.App.2d 501, 509; Campanelli v. Regents of Univ. of Calif. (1996) 44 Cal.App.4th 572, 581; Rest. 2d, Torts § 581A; Francis v. Dun & Bradstreet (1992) 3 Cal.App.4th 535, 540 (credit report, even one causing harm, is not defamatory if true); Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 953 (statements as to dentist's misconduct were true given Board of Dental Examiner's determination that dentist had been grossly negligent and in violation of provisions of Business and Professions Code).

So what does it mean to establish truth? Does that mean the defendant must establish the truth of his statements in every particular? Surprisingly, the answer is no.

It is sufficient if the defendant proves that the substance or the "gist" of the statement is true. Heuer v. Kee (1936) 14 Cal.App.2d 710, 714; Gantry Const. Co. v. American Pipe & Const. Co. (1975) 49 Cal.App.3d 186, 194 ("The concept that it is the gist or sting of the alleged defamatory statements that must be false rather than the specific details of the charge is deeply rooted in our common law."). Weller v. American Broadcasting Cos. (1991) 232 Cal.App.3d 991, 1009, footnote, 17; See Campanelli, supra (admission that plaintiff basketball coach engaged in tirades so bad that seven players were thinking of quitting established truth of defendant's assertion that players "were in trouble psychologically").

But who bears the burden of proof? The previous rule in California was that the plaintiff needed to plead that the statements were false. This is no longer required. The burden of pleading and proving that the statements are true rests squarely on the shoulders of the defendant. See Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

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Los Angeles litigants, lawyers, and court staff just got a jolt of reality this week when the planned "furloughs" began on Wednesday.

If you don't know already, as a result of the financial crisis in California, the Los Angeles Superior Court was required to "substantially reduce its operations and furlough employees the third Wednesday of every month beginning on July 15, 1009." except for essential services. To see a list of essential services click here.

So what does this mean for you? Well, it means that it'll be that much harder to get your case in front of a judge in a timely manner, which I believe, will particularly affect plaintiffs. (I noticed that the court room was extra busy today). It will also mean (likely) that more filing errors will be made because the clerk's office simply does not have enough staff to deal with the current amount of documents being filed every day.

On the bright side, at least courts will remain open to handle essential services. To see a list of essential services click here.

[In reality, there is no bright side because the Court expects the crisis to last at least another four years]

Happy Friday!

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Last year a Los Angeles Superior Court judge told me and another lawyer that "litigation is the sport of kings." Another judge in the same courthouse told me it's not really worth it to go to trial unless you have at least $500,000.00 in damages.

Well, I guess they're right.

As if it wasn't enough that California lawmakers totally mismanaged our economy and have raised fees on everything from parking tickets to waste disposal fees, they have now raised filing fees almost 10%.

It now costs $350 to file a complaint or other first paper in an unlimited civil case (more than $25,000.00) and the same to file an answer or other first paper by a party other than the plaintiff.

This means the little guy or gal has less access to the courts and it isn't right.

To see the complete fee schedule for the Los Angeles Superior Court click here.

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