California SLAPP Law

In Episode 35 of the California SLAPP Law Podcast, we take a deep dive into what constitutes a matter of public interest under the anti-SLAPP statute. It is apparent from the motions we are defeating that counsel is sorely lacking an understanding of this important point. As was held in the Supreme Court case of FilmOn v. DoubleVerify, it’s not enough to simply point to some amorphous matter of public interest. The challenged speech must be “closely related” to that public interest, AND it must somehow “advance the discussion” on the public interest. We also discuss the craziest appeal Morris & Stone has ever faced. The defendant’s anti-SLAPP motion was denied, but only because of a procedural snafu. The patient Judge denied the motion without prejudice, and invited opposing counsel to refile the motion. No harm, no foul. So why did the attorney instead file an appeal? And is the denial of an anti-SLAPP motion even appealable when it was denied without prejudice? Listen to Episode 35 for the answers.

In Episode 34 of the California SLAPP Law Podcast, we examine the amendment to Civil Code section 47, which changed calls to the police from being absolutely privileged, to only conditionally privileged. Attorneys who sue for calls to the police, do so at their peril, as opposing counsel learned. And we are happy to report that Morris & Stone created a new legal precedent, having to do with what we have long referred to as “all-or-nothing” anti-SLAPP motions. In Baral v. Schnitt, the California Supreme Court held that individual allegations of protected speech can be stricken from a complaint. But what if a defendant brings an anti-SLAPP motion that asks only to strike the entire complaint? How should the court handle it, when the defendant then changes course, and asks in the reply brief for individual allegations to be stricken? Listen to Episode 34 for the answer. The post SLAPP034 – Are Calls to the Police Still Protected Speech? appeared first on California SLAPP Law.

                  In Episode 33 of the California SLAPP Law Podcast, we revisit the California Supreme Court decision of Sweetwater Union High School District v. Gilbane Building Co. Our client was sued by an attorney, and we had the action dismissed by way of an anti-SLAPP motion. The attorney appealed, and in his briefs, he never mentioned the Sweetwater holding, and we sure were not going to bring it up. The Court of Appeal brought it up anyway. Would the attorney be able to reverse the ruling, based on evidence that might be admissible at trial? We also discuss how sometimes the best thing to do is nothing. We were brought in to oppose an anti-SLAPP motion, but when the trial court kept continuing the hearing, I told the client, “wait for it, wait for it . . .” And I tell the tale of nice woman who ran afoul of the anti-SLAPP statute with her cross-complaint, and was faced with a massive attorney fee application. She could not afford to hire us, but a little guidance from the wings saved her from disaster. The post SLAPP033 – How to Defeat an anti-SLAPP Motion with Inadmissible Evidence appeared first on California SLAPP Law.

We begin Episode 32 with the discussion of how Morris & Stone just defeated an anti-SLAPP motion. I reveal the common (and fatal) mistake made by defense counsel when they pursue anti-SLAPP motions. And on the topic of mistakes, we turn to the three cases that counsel almost always cite improperly when defending against an anti-SLAPP motion. Listen and find out what these three cases really stand for: Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858. Weinberg v. Feisel (2003) 110 Cal.App.4th 1122. Flatley v. Mauro (2006) 39 Cal.4th 299. Finally, in the after-show, I reveal a successful strategy to obtain a trial continuance, even when the judge has already said no. The post SLAPP032 – The 3 Most-Often Miscited Anti-SLAPP Cases appeared first on California SLAPP Law.

In Episode 31, in addition to an anti-SLAPP case, we examine another example of how opposing counsel blew an opposition to our Motion for Summary Judgment, by being unaware of the procedure rules. The limit for the memorandum of points on a typical motion is 15 pages, but a motion for summary judgment is a big deal, so the rules graciously allow 20 pages for that type of motion. The same rule applies to the opposition. But this attorney offered up a 60 page memo. How did we use that error to seal his doom? Listen to Episode 31 to find out. Next we turn to the case of Mike Postle, a professional gambler. Some accused Postle of cheating at a particular poker tournament. He took umbrage with that, and sued 12 of his accusers. We would have told poor Mr. Postle the tale of Joe the Alcoholic, which made clear that he could not prevail on his defamation claim. Listen for all the details, and the only possible silver lining in Postle’s debacle.   The post SLAPP031 – A Gambler Bets Wrong on the Anti-SLAPP Statute appeared first on California SLAPP Law.

Fun, fun, fun in the California sun at Morris & Stone. In just in the past couple of weeks, we (1) Obtained a 3.9 million dollar defamation verdict for one client; (2) Got another client out of a 7 million dollar case on a motion for summary judgment, and (3) Were awarded our fees following a successful anti-SLAPP motion, even though the motion did not dispose of every cause of action. In Episode 30 of the California SLAPP Law Podcase, we discuss the facts of the aforementioned anti-SLAPP motion, and the motion for attorney fees that followed. This particular anti-SLAPP motion presented some really interesting issues, as did the motion for attorney fees. As to the anti-SLAPP motion, we examine whether it can ever be defamatory to call someone a crook. It might seem so, but how exactly does one define a crook in order to offer evidence that one is not a crook? As to the motion for attorney fees, how does the court handle such a request when the underlying anti-SLAPP motion was only partially successful? Along the way, we are again reminded why it is so crucial to know the procedural rules governing any motion you bring. The post SLAPP030 – Is it Defamatory to Call Someone a “Crook?” appeared first on California SLAPP Law.

\r\n\nIn episode 28, we discussed the attorney who sued his own client for malicious prosecution. The client had challenged the fees charged by the attorney by way of the informal fee arbitration process, and when he lost the attorney turned around and sued for malicious prosecution.\r\n\nIncredibly, the court denied our motion, so we had to take it up on appeal.\r\n\nThe Court of Appeal agreed with our position that a fee arbitration cannot be the predicate for a malicious prosecution case, and therefore the attorney could not possibly prevail on the second prong of the anti-SLAPP analysis.\r\n\nIn Episode 29, we discuss the court’s decision, as well as the motion for attorney fees that followed. The attorney provided a 65-page report from an expert witness who challenged our fees and hourly rate, but the judge was having none of it.\r\n\nThe post SLAPP029 – Can Attorneys Sue Their Clients for Malicious Prosecution After a Fee Dispute? appeared first on California SLAPP Law.\r\n

                  Some of our anti-SLAPP cases are breaking new legal ground through some very interesting fact patterns. Penal Code section 11172 You are probably aware that certain professionals are required to report any child abuse situation of which they become aware. Penal Code section 11172 was created in order to afford those mandated reporters immunity against defamation claims potentially arising from their reports. But in that same statute, wording was added that created liability for non-mandated reports who make claims of child abuse. But hold on Maude. Civil Code 47 and Code of Civil Procedure 425.16 both afford what has always been held to be an absolute privilege for reports to the police. Does Penal Code section 11172 carve out an exception? Listen to Episode 28 for the answer. Can an attorney sue for malicious prosecution based on a fee arbitration? Ahhh, the benefits of hindsight. Episode 28 of the California SLAPP Law Podcast was recorded almost a year ago, but I never got around to editing and posting it. In addition to reporting on our recent victories at that time, it included the tale of an anti-SLAPP motion that had not gone in our favor, and was still up on appeal. I promised at the time to report on the results of the appeal. [Spoiler alert: We won on appeal and the anti-SLAPP motion was granted.] As I was editing the podcast today, I was struck by the fact that it seemed to come from another era; like finding a journal entry where you referred to stopping at a pay phone or expressed how much you liked your Angel Flight pants. I discuss how I traveled to San Francisco to argue the case to the Court of Appeal. Can you imagine? Actual, face-to-face argument to the court? What an archaic notion. In the next episode of the California SLAPP Law Podcast I will report on the opinion by the Court of Appeal, but if you can’t wait, you can read all about it here. You’ve got to know when to fold them . . . Finally, I tell the tale of a plaintiff who just did not know when to fold them . . . know when to walk away . . . know when to run. We defeated her case with an anti-SLAPP motion. It was apparent each step of the way that her counsel just did not know the law in this area. Ever helpful, we explained each step of the way what we were going to do if he proceeded with his plans, and what it would cost his client. After spending probably tens of thousands of dollars in activities we advised against, Plaintiff had to finally pay the piper. The post SLAPP028 – An Exception to the Absolute Police Report Privilege? appeared first on California SLAPP Law.

President Trump is never short on controversy, and said controversy leads to some interesting cases. In Episode 27 of the California SLAPP Law Podcast, we will discuss two Trump cases — one First Amendment and one anti-SLAPP — arising from the words and tweets of our sneerless leader. We’ll also discuss when a motion to dismiss can be a better option than an anti-SLAPP motion. The first case is Nwanguma v. Donald Trump, arising from his comments at a political rally before he was elected. When hecklers tried to shout him down, he said “get ’em out of here.” The crowd heeded his words and bodily removed the protesters, who then sued for battery and incitement. They claimed that by saying “get ’em out of here,” Trump incited the crowd to riot. Trump moved to dismiss, arguing that his words were mere hyperbole. How did the court rule? Listen to Episode 27 and find out! Next comes the infamous case of Stormy Daniels v. Donald Trump. Daniels sued Trump in two different forums for two different claims. In one, she is simply trying to get out the contract whereby she was paid for her silence. In the other, she had stated during a press conference that she had been threatened by a man who told her to be quiet about sleeping with Trump, even showing an artist’s rendering of the allege suspect from many years prior. Trump felt compelled to tweet that the story was a total “con job.” Her attorney, Michael Avenati, who would have known better if he listened to the California SLAPP Law Podcast, decided to sue for defamation for Trump’s usage of the phrase “con job.” As any regular listener would know, “con job” is just too imprecise to support a defamation claim. It is not verifiably false, and without a verifiably false statement, there can be no defamation. Trump brought an anti-SLAPP motion, which was granted. Not a good week for Avenati. In the same week that the court granted Trump’s anti-SLAPP motion, finding that Daniels would therefore be liable for all of Trump’s attorney fees, Avenati was found personally liable for a multi million dollar judgment by a former associate at his firm, and was given an eviction notice from his law offices for failure to pay rent. And stay around for the after show, where I discuss the happenings with Bell v. Feibush, some precedent I created six years ago. The post SLAPP027 – When a Motion to Dismiss is a Better Strategy than an Anti-SLAPP Motion appeared first on California SLAPP Law.

Canada, eh? Those hosers in Ontario didn’t get around to passing an anti-SLAPP statute until 2015, and they’re still trying to figure it out. In this episode of the California SLAPP Law Podcast, we travel to the great white north to examine an anti-SLAPP motion that was denied by the trial court, but granted by the appellate court. It beautifully illustrates the most fundamental point of a defamation case that oh so many attorneys still don’t understand. A statement is not defamatory unless it is false, no matter what the quantum of harm it may cause. The post SLAPP026 – Don’t Sue for Defamation Unless the Statements Really are False appeared first on California SLAPP Law.

de Havilland v. FX Networks, LLC If you sell t-shirts bearing the images of the Three Stooges, can you be sued for violating their right of publicity? And if you create and broadcast an 8-part docudrama centering on Bette Davis and Joan Crawford, can Olivia de Havilland sue you for including the details of HER life in that story? Well, the just decided case of de Havilland v. FX Networks, LLC answers both those questions. I enjoyed this anti-SLAPP case because it beautifully illustrates how some judges just don’t understand precedent. Olivia de Havilland, who is now 102 years old, did not like the way she was protrayed in the FX docudrama, “Feud: Bette and Joan,” centering on deceased actresses Bette Davis and Joan Crawford. In case you don’t recognize the name, de Havilland portrayed Melanie in Gone With the Wind. She was the one Scarlett was always jealous of, as I recall. She sued FX, claiming the portrayal of her in the show amounted to the unauthorized use of her name and likeness for commercial gain. FX responded with an anti-SLAPP motion. The trial court, Judge Holly Kendig presiding, denied the anti-SLAPP motion, relying in large part on a California Supreme Court decision called Comedy III Productions v. Gary Saderup, Inc. FX appealed. Listen to Episode 25 to see how it all turned out. What is the current status of the requirement that an anti-SLAPP motion be heard within 30 days of filing? Previously, Fair Political Practices Commission v. American Civil Right Coalition, Inc. and Decker v. U.D. Registry had held that the 30-day requirement was jurisdictional. Now Karnazes v. Ares holds that it is the clerk’s burden to set the hearing within 30 days. But does that mean counsel is safe if a hearing is outside the 30-day deadline. Listen to find out. The post SLAPP025 – Anti-SLAPP Motion Defeats Gone With the Wind Actress appeared first on California SLAPP Law.

In Episode 24 of the California SLAPP Law Podcast, we tackle two important anti-SLAPP issues. Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism The conventional wisdom until now, as expressed in cases such as Yu v. Signet Bank/Virginia, was that an amended complaint creates an new 60-day period to file an anti-SLAPP motion. Then along came the Court of Appeal decision of Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism. In that case, the plaintiff originally sued on two causes of action, to which the defendant demurrered. When the plaintiff filed a third amended complaint, which added two new causes of action, the defendant finally filed an anti-SLAPP motion, challenging all the claims, including the two that had been there all along. The trial court refused to consider the challenge to the previously existing claims, stating they were past the 60 days since they could have been previously challenged. The Supreme Court agreed. This is a quantum shift in the prior case law, but will the consequences be as severe as the holding seems to indicate? Listen to Episode 24 to find out, and for the best strategies for dealing with the Newport Harbor reasoning. Dowling v. Zimmerman Certainly not a new case, but we use it to discuss whether an appeal stays collection of costs and attorney fees following a successful anti-SLAPP motion.   The post SLAPP024 – Supreme Court Clarifies Whether Amended Complaint Resets 60-Day Clock for Anti-SLAPP Motion appeared first on California SLAPP Law.

In Episode 23 of the California SLAPP Law Podcast, we examine two cases that consider how privileged speech should be viewed during the two-prong anti-SLAPP analysis. As you will hear, the fact that the speech was privileged does not mean it automatically falls under the anti-SLAPP statute. Edalati v. Kaiser Foundation Health Plan, Inc. This unpublished case is our starting point. In Edalati, a dentist learned that Kaiser Foundation Health Plan had sent a letter to dozens of her patients, falsely informing them that the dentist was on a government list for Medicare abuse. Kaiser realized it’s mistake and sent out a retraction letter, but by that point the damage had been done. The dentist sued for defamation, and Kaiser responded with an anti-SLAPP motion. Kaiser’s letter clearly falls under the common interest privilege of Civil Code section 47, but is that enough to prevail on an anti-SLAPP motion? Lefebvre v. Lefebvre In opposition to Kaiser’s anti-SLAPP motion, the dentist in Edalati relied on the case of Lefebvre v. Lefebvre. In that case, a wife, in the hope that it would help in a custody dispute, filed a false police report against her husband, claiming he had threatened to kill her and their children. He was arrested and charged. He was found not guilty, and then sued his ex-wife for defamation. The wife brought an anti-SLAPP motion. The report to the police enjoys an absolute privilege, so the anti-SLAPP motion must have been granted, right? Don’t be so sure. Listen to this latest episode to find out. Here’s a hint. The case law discussed in this episode offers a means to save attorneys and their clients from an award of attorney fees when they end up on the wrong side of an anti-SLAPP motion. A great, FREE program The publisher stopped supporting and offering a fantastic program called Notescraps that I use every day in my practice. I not only prevailed on them to keep offering the program, I got them to give it to you for free (it used to be $20). I tell you how to get it on this episode. Book ’em Danno. And finally, just for fun, I tell the tale of my encounter with some officious deputies at the courthouse. I still made it to court and still won my motion. The post SLAPP023 – Privileged Speech Can Survive Anti-SLAPP Motions appeared first on California SLAPP Law.

Hooray for Hollywood! In Episode 22 of the California SLAPP Law Podcast, we discuss four cases involving the film industry that have all resulted in anti-SLAPP motions. We also dive deep into abuse of process claims, and determine if such claims can ever survive an anti-SLAPP motion. And in the process, we discuss a trial strategy that I successfully utilized in achieving a case involving the Automotive Repair Act. Cases discussed in this Episode: Kelly Van v. James Cameron (unpublished). In this case, and author named Kelly Van sued James Cameron and a cast of thousands, claiming that Avatar was a ripoff of her book, Sheila the Warrior; the Damned. When she lost the copyright action in Federal Court, she sued in state court, claiming that she only lost the federal action because the defendants had lied. So she was suing for statements made in another case. Sounds like a SLAPP to me. Timothy Forsyth v. Motion Picture Association of America, Inc. In this class action, the plaintiff claims that depictions of smoking in the movies are killing our children. They claim it is a violation of the movie rating system to give a movie a PG-13 rating if the movie depicts smoking (such as Gandalf smoking his pipe in the Lord of the Rings movies). So the plaintiff gets to tell the movie industry how to rate movies? Sounds like a SLAPP to me. Paul Brodeur v.  Atlas Entertainment (unpublished). In the 70s, Paul Brodeur told the world that microwave ovens were dangerous, but he never said the cook the nutrients out of food. In the film American Hustle, a fictional charater makes the fictional statement that Paul Brodeur said that microwaves cook the nutrients out of food. So Brodeur gets to tell the movie industry how to write the fictional dialog of its fictional characters? Sounds like a SLAPP to me. Michael Hawkins v. Christian Slater (Superior Court case) For a brief shining moment in Camelot, Christian Slater reunited with his actor father, Michael Hawkins. They had had a turbulent relationship, but Slater announced in an interview that he was happy to have his father back in his life, describing his father as a “manic-depressive schizophrenic.” His father sued for defamation, and Slater brought an anti-SLAPP motion. So Hawkins thinks that Slater is qualified to offer a medical diagnosis, such that his statement would be taken as a verifiable statement? Sounds like a SLAPP to me. Rusheen v. Cohen (Supreme Court Decision). The Supreme Court case that tells all about abuse of process claims. Every abuse of process claim will be met with an anti-SLAPP motion. Here is the information you need to determine if your abuse of process claim will survive that motion. The post SLAPP022 – Abuse of Process Claims and Anti-SLAPP Motions appeared first on California SLAPP Law.

We discuss the very important case of Baral v. Schnitt, in which the California Supreme Court finally dealt with the split of authorities regarding how to deal with complaints with mixed causes of action; those that contain allegations of both protected and unprotected activities. This is probably the most important anti-SLAPP decision of the decade. We also take a quick look at Hassell v. Bird, in which the Court of Appeal held that Yelp can be ordered to take down a false and defamatory post, even if it was not a party to the action. Finally, I tell the tale of a very entertaining victory we had in Norwalk Superior Court, in front of a finger-wagging judge. The post SLAPP021 – Anti-SLAPP Motions Against Mixed Causes of Action appeared first on California SLAPP Law.

In Episode 20 of the California SLAPP Law Podcast, we discuss important Evidence Codes, and my VINDICATION by the California Court of Appeal. The vindication comes in the form of a published opinion from the Sixth District Court of Appeal. I was brought in as co-counsel to first chair an internet defamation trial in Santa Cruz, representing a client (an attorney) we will refer to as “Esquire”. We were also defending a cross-complaint for breach of a commercial lease. The trial was assigned to Judge Ariadne Symons, who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers. At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint for defamation and breach of the covenant of quiet enjoyment. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence. I was confident that the matter would be reversed on appeal, and I was looking forward to the Court of Appeal’s opinion, not just for the benefit of the client and my own vindication, but because until the Court of Appeal instructed Judge Symons on fundamental evidentiary law, a lot of parties in her court were going to be deprived of justice. At the oral argument on the appeal, it was clear that Esquire was going to prevail, so the parties entered into a settlement, and filed a Notice of Settlement with the Court of Appeal. That was great for Esquire, but bad for anyone who might subsequently appear in front of Judge Symons, since she would receive no indication of her errors. In the case of Ebensteiner Co. v. Chadmar Group (2006) 143 Cal.App.4th 1174, the court held that “A valid settlement between the parties renders the appeal moot to the extent that it ‘effectively extinguishes the judgment from which the appeal is taken,’ ending both the dispute and the possibility of further, effective relief from the court.” Thus, by settling the case before the opinion was issued, our performance on the case would never be vindicated, and Judge Symons would presumably continue to make the same evidentiary mistakes. (I once had an arbitration before a retired judge who had been on the bench for more than 30 years. He sustained an evidentiary objection, holding that someone who is suing for fraud cannot testify to the false statement, because it is hearsay. When I explained that testimony as to a false statement is not hearsay, since it is not offered for the truth of the matter asserted, he responded, “no one has ever explained that to me in that way before,” and reversed himself. Presumably, that meant he had been prohibiting evidence as to fraud for his 30 years on the bench. But that’s a story for another day.) I was crestfallen that pursuant to Ebensteiner Co. v. Chadmar Group, we would never have a published opinion on the important issues raised by the trial and appeal in this matter. Then, a couple of weeks later, the Court of Appeal issued its opinion. In a footnote, the Court said that it was well aware of the holding of Ebensteiner, but said, “we’ll call your Ebensteiner and raise you a Burch v. George. (OK, the Court didn’t really say that, but it was the practical effect.) In Burch v. George (1994) 7 Cal.4th 246, the California Supreme Court held that “[t]he appellate court has ‘inherent power to retain a matter, even though it has been settled and is technically moot, where the issues are important and of continuing interest.’” As I stated, I felt the issues presented by the trial and appeal were very important for Judge Symons in particular and the legal community at large. The Court of Appeal agreed, stating: “We find this appeal presents issues of public interest that promise to recur, specifically in the emerging realm of internet-based communications, online aliases, and questions pertaining to the admissibility of such evidence at trial. We therefore retain jurisdiction in order to resolve the issues presented.” The Court of Appeal explained in detail where Judge Symons had gone wrong, referring to her reasoning as “perplexing”. Where Judge Symons had gone wrong was with the application of Evidence Code sections 1552 and 1560-1563, and on the admissibility of indirect evidence and the inferences that are to be drawn therefrom. Evidence Code § 1552 We sought to introduce Yelp reviews pursuant to Evidence Code § 1552, which provides: A printed representation of computer information or a computer program is presumed to be an accurate representation of the computer information or computer program that it purports to represent. This presumption is a presumption affecting the burden of producing evidence. It’s as simple as that. Anything you see on the internet is admissible under Evidence Code § 1552, so long as you are just offering it to show that it was in the public eye. In other words, if there is an article on the internet proclaiming that bacon is health food, you can’t offer that article as proof that bacon is healthy, but it is completely admissible to show that the article exists. When a plaintiff wants to sue for defamation for a false Yelp review, he must be able to introduce the Yelp review, just to show it was posted. Of course he is not claiming that the review is true – he’s claiming it was false and defamatory – but he must be able to show that it was published. At trial, defense counsel argued we could not introduce the Yelp reviews, because we had not listed anyone on our witness list from Yelp, and therefore had no means to authenticate those reviews. Judge Symons agreed, and excluded the Yelp reviews. When I explained Evidence Code 1552 to Judge Symons, her response was, “what do computers have to do with Yelp reviews?” I then explained that when someone looks at a Yelp review on their computer, they are seeing the information that is stored on Yelp’s computer servers, and hence a printout of a Yelp review is a “representation of computer information” and is therefore admissible under section 1552. Judge Symons offered no response, but rejected the reviews anyway. With its opinion, the Court of Appeal reversed her evidentiary rulings, and explained to Judge Symons that she was wrong, holding that the Yelp reviews were unquestionably admissible under section 1552, and that no one from Yelp was required to authenticate the records. The reviews are “self-authenticating,” requiring only that the plaintiff testify that she found the reviews on Yelp’s website. Evidence Code §§ 1560, 1561, and 1562 We had also subpoenaed from Yelp, AT&T and Comcast all the business records necessary to show that the false reviews had been posted from defendant’s home and business internet accounts. Evidence Code sections 1560, 1561, and 1562 set forth the procedure for subpoenaing business records, and provide that business records obtained under these sections are admissible and presumed to be accurate. Importantly, they provide that records produced under these sections with a proper supporting declaration are every bit as admissible as if the custodian of records was there to authenticate the records. All that is necessary under these sections is that the custodian of records provide a declaration, stating that the documents and information provided are business records, responsive to the subpoena. The records from Yelp established from which IP addresses the fake reviews had been posted, and the records from Comcast and AT&T showed that they were posted from Painter’s home and office. Judge Symons rejected all of these business records, finding that they were all hearsay. She ignored these sections and used a standard hearsay analysis, concluding that, for example, where the records indicated that the false Yelp reviews were posted from the defendant’s account, that was inadmissible hearsay. The Court of Appeal reversed her rulings, holding that the records were all admissible. The law on Indirect Evidence and Inferences Evidence Code section 600 defines inference as “a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” Judge Symons ruled that the evidence could only be used to show that defendant posted the false Yelp reviews if we could establish that was, as a matter of law, the only inference that could be drawn from the evidence. Defense counsel conceded that the false Yelp reviews were posted from defendant’s home and office internet accounts, but maintained that since others had access to those computers, we could never prove beyond a preponderance of the evidence that he was the one who sat at the computers and made the postings. Judge Symons agreed. The Court of Appeal reversed Judge Symons rulings, and concluded that her view of the evidence was 180 degrees askew. In considering the admissibility of indirect evidence, she was required to resolve all presumptions, inferences and doubts in favor of plaintiff. The Court of Appeal held that Judge Symons had done precisely the opposite. She erroneously required that we prove the inferences were the only possible result, as a matter of law. The Court of Appeal used the Comcast records as an example. The false reviews had been posted from a certain IP address on a Comcast account belonging to the defendant. Before we were hired, prior counsel had subpoenaed the records from Comcast, but by the time they hit Comcast with the subpoena, the records for that specific date were no longer available. But Comcast could provide the records beginning 11 days later. Sure enough, 11 days after the false reviews were posted from the known IP address, that IP address was still assigned to defendant. The question was whether a juror could connect the dots and conclude that defendant had that same IP address 11 days prior, and therefore was the one who had posted the false reviews. Judge Symons ruled that we could never bridge that gap, even though our expert testified that the odds were one in four billion that defendant would just happen to get the same IP address 11 days later. The Court of Appeal reversed that ruling, holding that Judge Symons ignored the clear inference in favor of plaintiff. A jury COULD connect the dots and conclude that the defendant had posted the false Yelp reviews, and therefore all of the IP information was admissible. The verdict was completely reversed, and Esquire can now proceed to trial with a new judge. It is extremely rare (unprecedented in my 30 years of practice) for a Court of Appeal to render an opinion on a case that has been settled, but the Sixth District recognized the extreme importance of clearing up the evidentiary issues that had plagued the trial judge in this case. Hopefully this opinion will be instructively taken to heart by Judge Symons. Anti-SLAPP Cases And fear not; in Episode 20 of the California SLAPP Law Podcast, we also discuss a couple of anti-SLAPP decisions in the context of these Evidence Code sections. We review the case of Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138. That case also involved issues concerning the inferences that can properly be drawn from indirect evidence. In Fashion 21, the plaintiff clothing manufacturer sued an individual named Narro, claiming he passed out defamatory flyers about the company during a demonstration. Narro filed an anti-SLAPP motion, claiming that he had never passed out any of the allegedly defamatory flyers. On that basis he argued that the plaintiff Fashion 21 would never be able to meet the second prong of the anti-SLAPP analysis — more likely than not to succeed on the action — because it would never be able to prove that he passed out the flyers. The trial court and Court of Appeal disagreed, based on a video wherein Narro was seen holding a stack of the flyers, while people around him stood reading those flyers. The Court of Appeal concluded that a jury COULD conclude that Narro had been passing out the flyers, and that is all that is required to make the evidence admissible. That conclusion was to no avail for Fashion 21, because the Court of Appeal concluded that the flyers were not defamatory, but it held in clear terms that this sort of indirect evidence is sufficient. On the issue of admissibility of internet sites, we examine the case of Ampex Corp. v. Cargle (2004) 128 Cal.App.4th 1569. There, a company called Ampex sued an anonymous person who posted comments on a Yahoo discussion site. Ampex sued for defamation to learn the identity of the defendant, but the defendant Cargle said “here I am” and responded to the lawsuit with an anti-SLAPP motion. To satisfy the first prong of the anti-SLAPP analysis, he demonstrated that Ampex was a matter of public interest by attaching print-outs of the Yahoo site, showing that 112,000 comments had been posted about Ampex. Ampex decided to dismiss the action, but that left the issue of Cargle’s attorney fees for the anti-SLAPP motion, which mandated a determination as to whether the anti-SLAPP motion would have been granted if allowed to go forward. The trial judge denied the attorney fees, stating that he never would have granted the anti-SLAPP motion based on the print-outs of the Yahoo site, holding they were inadmissible hearsay. Apparently Judge Symons isn’t the only judge who doesn’t understand Evidence Code section 1552. On appeal, the Court of Appeal, verbally pulling out its hair, stated that OF COURSE the print-outs of the Yahoo pages were admissible. Cargle was in no way offering the documents to prove the truth of the matter asserted, so hearsay was not an issue. The Court held that the Yahoo documents were self-authenticating under Evidence Code section 1552, since they were offered only to show their existence in the public eye. On that basis, the Court of Appeal held that the anti-SLAPP motion would and should have been granted if the motion had gone forward, and ordered the trial court to award Cargle attorney fees. The post SLAPP020 – Sixth District Weighs in on Admissibility of Yelp Reviews and the Law on Inferences appeared first on California SLAPP Law.

On Episode 19 of the California SLAPP Law Podcast, we go through my five favorite reported anti-SLAPP decisions from the first half of 2016. But first we begin with a cautionary tale of an attorney who is being sued for malpractice for failing to have me review his complaint before it was filed! (OK, there’s a back story here, so be sure to listen to this episode to find out what I’m talking about.) Then, we turn to the five best published anti-SLAPP decisions from the first half of 2016. The bold cases are the top five; the non-bolded are other cases I discuss as well. Lanz v. Goldstone (2015) 243 Cal.App.4th 441 Another cautionary tale, this time of an attorney who followed the old adage, “the best defense is a good offense.” He tried to intimidate an attorney from seeking his legal fees, and bought himself a malicious prosecution action in the process. You’ll learn a lot about malicious prosecution actions and under what circumstances they can survive an anti-SLAPP motion. Bertero v. National General Corp. (1974) 13 Cal.3d 43 Speaking of malicious prosecution actions, this is the seminal case. Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135 “When the proceeding terminates other than on the merits, the court must examine the REASONS for termination to see if the disposition reflects the opinion of the court OR THE PROSECUTING PARTY that the action would not succeed.” Karnazes v. Ares (2016) 244 Cal.App.4th 344 Speaking of over-pleading, our second case is Karnazes v. Ares, decided by the Second District in January of 2016. In this case, the plaintiff alleged 22 – count em – 22 causes of action against the defendants. Karnazes lost to an anti-SLAPP motion, but made some interesting arguments in opposition to that motion. Sweetwater Union School District v. Gilbane Building Company (2016) 245 Cal.App.4th 19 Are political bribes protected by the anti-SLAPP statute? Listen to find out (and the answer will likely surprise you). And find out how you can support an anti-SLAPP motion with declarations without using declarations. Crossroads Investors v. Federal National Mortgage Association (2016) 246 Cal.App.4th 529 It may look like litigation, and it may quack like litigation, but that doesn’t necessarily make it litigation for purposes of the litigation privilege and the first prong of the anti-SLAPP analysis. JM Manufacturing v. Phillips & Cohen (2016) 247 Cal.App.4th 87 Yet one more action against an attorney; in this case an attorney who was so proud of his firm’s trial victory that he published a press release and bought the firm a defamation action. It was a split decision. And finally, in the after show, I provide an appeal tip that might save you from some embarrassment. The post SLAPP019 – Five Best Published Anti-SLAPP Decisions (so far) in 2016 appeared first on California SLAPP Law.

In episode 18 of the California SLAPP Law Podcast, I discuss an anti-SLAPP motion I decided NOT to pursue, and why. We discuss the case of Weinberg v. Feisel (2003) 110 Cal.App.4th 1122. Then we dive deep into the pros, cons, and frustrations of bringing anti-SLAPP motions in Federal Court. Since 1999, the Ninth Circuit has recognized that the California anti-SLAPP statute can be applied to cases in Federal Court, but the motion you bring there is a very different animal from what is pursued in State Court. As part of our discussion on anti-SLAPP motions in Federal Court, we cover the following cases: Erie Railroad Company v. Tompkins (1938) 304 U.S. 64 Swift v. Tyson (1842) 41 U.S. 1 United States Newsham v. Lockheed Missiles and Space Co. (1999) 171 F.3d 1208 Makaeff v. Trump University (2013) 715 F.3d 254 Verizon Delaware, Inc. v. Covad Communications (2004) 377 F.3d 1081 Globetrotter Software, Inc. v. Elan Computer Group (2004) 362 F.3d 1367 The post SLAPP018 – All You Need to Know About Anti-SLAPP Motions in Federal Court appeared first on California SLAPP Law.

In Episode 17 of the California SLAPP Law Podcast, we go back to basics, with an introduction to the fundamental concepts behind California’s SLAPP Law and anti-SLAPP motions. The good news is that although it took some 25 years for attorneys to begin recognizing the impact of California’s anti-SLAPP statutes on litigation in the state, they are now aware of the statute (sometimes painfully so). But it is clear that there are still some misconceptions about the law, including the fundamental terminology and procedures. Listen to this episode, and you’ll have a great understanding of what a SLAPP is, and what sort of activities fall under that anti-SLAPP statutes. I also discuss a great new service I found, that is now a sponsor of the California SLAPP Law Podcast.  For quite some time, I have made it a practice to begin reading the tentative rulings from a court, once I decide I will be bringing a motion in that court. For example, if I know I’m going to be bringing a motion for summary judgment in the courtroom of Judge Banks in Orange County, I’ll start looking for tentative rulings related to motions for summary judgment by Judge Banks. Just as an attorney who is going to bring a motion for summary judgment will likely call up a prior motion and use it as a starting point, over the years judges (or their research attorneys) develop language and case references they use when granting or denying a particular type of motion. Often the cases cited by the judge will not appear in the motion papers, but rather are decisions that the judge has located and relies upon. Knowing which cases a judge favors in ruling on a motion greatly assists in crafting such a motion. In drafting the motion, I can then either embrace decisions that the judge has cited in the past that support my position or strive to refute them. Looking at prior rulings by the judge can also provide a heads up about the judge’s propensities as regards a particular type of motion. For example, in contemplation of bringing a motion to compel in a particular court, I started looking at the tentative rulings from that court. The judge had reached the unusual conclusion that when bringing a motion to compel discovery responses, any request for sanctions has to be brought in a separate motion. In reviewing the tentative rulings, I saw that no attorney was granted sanctions, because no attorney would ever contemplate that they should bring a sanction request in a separate motion. Knowing this, when it came time for me to bring my motion to compel, I filed a separate motion for sanctions. Come hearing day, I was the only attorney granted sanctions on a motion to compel. In another case, where I filed an anti-SLAPP motion, I checked the tentative rulings and found that the judge had reduced an attorney’s fee request by 75% because the attorney had not used proper Bluebook citations (although the judge also indicated that the attorney could have followed the California Style Manual). Why would a judge reduce fees by 75% just because of improper citation formatting? You can listen to episode 17 of the California SLAPP Law Podcast find out, but the real answer is that ours is not to reason why; ours is to read the court’s tentative rulings so that we have advanced notice of the judge’s eccentricities. The problem, however, with checking the tentative rulings is that they are generally only posted for a week. The number of tentative rulings available to you are limited unless you decide weeks in advance to begin researching the judge on a particular motion. That’s where BenchReporter.com comes in. Their database goes back to at least 2014. You really don’t want to go back too far because obviously the law changes, but going back a year or two gives a nice sized sampling of the judge’s view of a particular motion. You just type in the judge, and the motion you’re interested in, and BenchReporter.com returns all the matching tentative rulings. Go to BenchReporter.com to see what they have to offer. If you do decide to subscribe, use the discount code toplawfirm to save $10. [UPDATE: Use the discount code toplawfirm, and you can try the Bench Reporter service for a month FOR JUST $1.] In today’s episode, as part of a basic primer on anti-SLAPP law, we discuss three cases, having to do with the topic of what makes an act or speech a matter of public interest under the anti-SLAPP statute: Cabrera v. Alam (2011) 197 Cal.App.4th, where the plaintiff sued the defendant for statements made about the plaintiff’s homeowners association candidacy at an HOA meeting. The candidate brought an anti-SLAPP motion that was denied by the trial court, but the Court of Appeal reversed, finding that the defendants comments were protected under section 425.16(e)(3), which protects “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”. The court found (1) that the qualifications of an HOA candidate are an issue of public interest, and (2) that the candidate was a limited public figure, and therefore had to prove that the statements were made with malice. I explain why the Cabrera court reached the right conclusion for the wrong reasons. Statements made at an HOA meeting fall under 425.16(e)(2), and therefore are automatically a matter of public interest. Optional Capital, Inc. v. Das Corporation, (2014) 222 Cal.App.4th 1388, where the court specifically stated: “if the speech is made or the activity is conducted in an official proceeding authorized by law, IT NEED NOT BE CONNECTED TO A PUBLIC ISSUE” (emphasis added). And lastly, Grenier v. Taylor (2015) 234 Cal.App.4th 471, which discusses the conventional wisdom of the scope of an issue, in order for it to be a matter of public interest: “Public interest” protected by the anti-strategic lawsuit against public participation (SLAPP) statute is not mere curiosity, and a matter of “public interest” should be something of concern to a substantial number of people. This conventional wisdom is what gets some parties and their attorneys in trouble, because they think there has to be some critical mass of people involved before an issue falls under the anti-SLAPP statute. As explained in this episode, some speech is automatically protected even if it involves one defendant complaining about one plaintiff. The post SLAPP017 – An Introduction to California SLAPP Law and Anti-SLAPP Motions appeared first on California SLAPP Law.

In Episode 16 of the California SLAPP Law Podcast, we discuss (1) when you can join with another defendant’s anti-SLAPP motion, and whether it is a good strategy to do so; (2) what the Courts of Appeal are doing to deal with all the appeals from anti-SLAPP motions; and (3) likely changes to the automatic right of appeal. We dive deep into the case of Hewlett-Packard Co. v. Oracle (2015), in which the Sixth District decried the abuse of the automatic right of appeal from rulings on anti-SLAPP motions, and took the unusual step of suggesting to the California Legislature how it could be fixed. The California Society of Entertainment Lawyers has offered the change set forth in the decision as a proposal to the legislature via the Conference of California Bar Associations. We also discuss the cases of Decker v. UD Registry, Inc. and Barak v. Quisenberry Law Firm, and examine their very different views on whether one defendant can join another defendant’s anti-SLAPP motion. Finally, in the post show, I introduce you to a brand new service that provides access to prior tentative rulings of trial court judges, which are a great resource when preparing important motions that will be heard by those judges. The post SLAPP016 – Appealing a Ruling on an Anti-SLAPP Motion appeared first on California SLAPP Law.