Assertion of Advice of Counsel in a Malicious Prosecution Action

In a malicious prosecution action, the client who initiated the prior lawsuit has a unique defense available to him.  He can assert “advice of counsel” and attempt to avoid liability.  Advice of counsel can provide an absolute defense to a client.  “Reliance upon the advice of counsel, in good faith and after full disclosure of the facts, customarily establishes probable cause.”  (Pond v. Insurance Co. of North America (1984) 151 Cal.App.3d 280, 288).  The burden of proving the advice of counsel defense rests with the client.  (Nunez v. Pennisi (Cal. Ct. App., Oct. 27, 2015, H039910) 2015 WL 6468389, at *8).  The advice of counsel defense will not apply unless the client proves that he informed his counsel of the “specific relevant facts” before the lawsuit was filed.  (Nunez v. Pennisi (Cal. Ct. App., Oct. 27, 2015, H039910) 2015 WL 6468389, at *8).  The defense is not available if the client knew that there was no probable cause to file suit.  (George F. Hillenbrand, Inc. v. Insurance Co. of North America (2002) 104 Cal.App.4th 784, 814).  One peril to asserting advice of counsel is that the client may be found to have waived the attorney client privilege regarding the advice received.  (Chiron Corp. v. Genentech, Inc. (E.D. Cal. 2001) 179 F.Supp.2d 1182, 1186).

This post is the latest in a series of posts on the tort of malicious prosecution.  Jeffrey Lewis represented the prevailing parties in the malicious prosecution case of  Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156.   Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced litigators and can advise you about your potential rights and defenses in a malicious prosecution action.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.

Statements Made in HOA Recall Election Campaign are Subject to Anti-SLAPP Protection

A Strategic Lawsuit Against Public Participation or “SLAPP” is a civil lawsuit brought to either prevent or punish another person for exercising their First Amendment right to petition the government or to speak about public issues. The primary purposes of these lawsuits is to use the courts to obtain economic or other coercive leverage over the defendants unrelated to the merits of the underling claims. In 1992, California enacted Code of Civil Procedure section 425.16, the anti-SLAPP statute, as a response to these types of lawsuits. Prior to the enactment of Section 425.16, the defendants would spend years in litigation and be out of pocket thousands of dollars in attorney’s fees before their First Amendment rights were vindicated. With the protection of Section 425.16 in place, a defendant can now very quickly get a ruling on the merits of the case, get the case dismissed and get all of his attorney’s fees paid for. A defendant who believes he has been named in a SLAPP lawsuit may file a special motion to strike which, if granted, results in a dismissal of the case and immediate right of appeal.

In Glassner v. Smith (May 4, 2015, A140876), the First Appellate District found that a slander, libel and false light invasion of privacy lawsuit was subject to California’s anti-SLAPP law and should be stricken.  In an unpublished decision authored by Associate Justice Kathleen M. Banke, the court found that a person involved in a Homeowners Association (“HOA”) election campaign is a limited purpose public figure:

“We have no trouble concluding Glassner, who sought out election to and retention on the HOA board, was a public figure, limited to the context of his suitability for HOA.  All of the alleged defamatory statements were made in the context of challenging Glassner’s fitness for the office he had just won.  While the dispute may have arisen partly from petty spite, the composition of the HOA’s board and the decisions it makes are of critical importance to the hundreds of HOA members and other residents of Pointe Marin, for whom the HOA plays the unique role of a “second municipal government.”

The court went on to hold that because all of the statements alleged to be defamatory were true in substance, the lawsuit should be stricken under California’s anti-SLAPP law.  Although this case is unpublished and not citable in California courts, there are lessons to be gleaned from this case:  If you file a lawsuit based on actions arising from the governance of a HOA, it is likely the defendants will file an anti-SLAPP motion in response.  A plaintiff in such a case must be prepared to meet such a motion with evidence to support every element of his claim.  Absent such evidence, the anti-SLAPP motion will likely be granted and the plaintiff will likely be ordered to pay the defendants’ attorney’s fees.  An attorney experienced in anti-SLAPP procedure and the First Amendment can guide a potential plaintiff about the potential pitfalls of filing a lawsuit in this context.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

SLAPP’d in Orange County: Court of Appeal Confirms Right to Recover Post-Judgment Fees

California has an anti-SLAPP law that protects defendants from lawsuits brought to chill their First Amendment rights.  The anti-SLAPP law, Code of Civil Procedure, section 425.16, provides  “for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”  (Club Members For An Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315).  When a defendant prevails and obtains an early dismissal under the anti-SLAPP law, a defendant can also obtain an award of attorney’s fees.  California courts have routinely held that the anti-SLAPP law is to be broadly construed to fully compensate a defendant who prevails in filing an anti-SLAPP Motion.

In York v. Strong (March 10, 2015, G049778), Division Three of the Fourth District Court of Appeal considered the right of a defendant, who prevailed on an anti-SLAPP motion and motion for attorney’s fees to recover additional, post-judgment attorney’s fees incurred in collection efforts.  In an opinion authored by Presiding Justice William F. Rylaarsdam, the court held that post-judgment fees — that is fees incurred by a prevailing defendant in collecting costs and fees awarded following an anti-SLAPP motion — are recoverable.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

SLAPP’d in Corona: Anti-SLAPP Protection not Applicable to Claims against Homebuilder Shea Homes

This post is the latest in a series of posts about California’s anti-SLAPP law.  California’s anti-SLAPP law (Code of Civil Procedure, section 425.16) protects defendants from lawsuits brought to chill their First Amendment rights.  When the anti-SLAPP law applies, a defendant can obtain a quick dismissal at the early stages of the lawsuit and get an award of the defendant’s attorney’s fees.  For example, if a person is sued for defamation for writing a negative review on Yelp!, the defendant may bring an anti-SLAPP motion under the theory that the reviewer has a free speech right in connection with consumer protection issues.  Likewise, a defendant sued for malicious prosecution can bring an anti-SLAPP motion under the theory that the defendant’ First Amendment right of petition (access to the courts) has been infringed.  However, not every lawsuit qualifies for anti-SLAPP protection.

On March 4, 2015, the Fourth Appellate District, Division One, issued its opinion in Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes (March 4, 2015 D066483). The opinion, authored by Associate Justice Alex. C. McDonald concluded that Shea Homes, a home builder, could not invoke California’s anti-SLAPP law just because the plaintiff homeowners association’s pleadings merely referenced a position taken by the parties in litigation.  Because the conduct and omissions giving rise to the association’s claims pre-dated the litigation by several years, a passing reference in the pleadings to positions taken in the litigation were held to be insufficient to invoke anti-SLAPP protection.  As written by the court:

“…the genesis of the underlying obligation sued on by plaintiffs was the fiduciary obligations that arose and were allegedly breached before any litigation activities were undertaken (see Moore v Shaw (2004) 116 Cal.App.4th 182, 197 [anti- SLAPP statute inapplicable where alleged misconduct occurred years before litigation initiated]),”

The Trilogy case presents a good example of how appellate courts are defining the limits of anti-SLAPP protection and preventing its misapplication to garden variety lawsuits that do not implicate First Amendment rights.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

Celebrity SLAPP’d in Los Angeles: Lawsuit arising from American Idol Negotiations Reinstated

California has an anti-SLAPP law that protects defendants from lawsuits brought to chill their First Amendment rights.  When the anti-SLAPP law applies, a defendant can obtain a fast dismissal at the early stage of the lawsuit and get an award of attorney’s fees.  For example, if a person is sued for defamation for writing a negative review on Yelp!, the defendant may bring an anti-SLAPP motion under the theory that the reviewer has a free speech right in connection with consumer protection issues.  Likewise, a defendant sued for malicious prosecution can bring an anti-SLAPP motion under the theory that the defendant’ First Amendment right of petition (access to the courts) has been infringed.  However, not every lawsuit qualifies for anti-SLAPP protection.  Private communications between private individuals generally do not qualify for anti-SLAPP protection.

In Kovac Media Group v. LaPolt (Feb. 26, 2015 B247579), a defendant obtained a dismissal based on a successful anti-SLAPP motion.  The Court of Appeal disagreed, reversed the trial court’s order and reinstated the lawsuit.  From the opinion authored by Presiding Justice Lee Smalley Edmon:

This case arises out of a dispute between a talent manager and an entertainment lawyer over common clients. The manager alleges, among other things, that the lawyer interfered with his attempts to negotiate a lucrative contract for Aerosmith lead singer Steven Tyler to appear on the popular show American Idol, and disrupted the manager’s relationship with the band Mötley Crüe. The manager sued the lawyer, contending that her actions gave rise to multiple causes of action, including for breach of fiduciary duty, breach of the duty of confidence, intentional interference with contract, and intentional interference with prospective economic advantage.

The core of the lawsuit were a pair of emails written about the contract negotiations.  The defendants urged the court to apply the anti-SLAPP law under the theory that the lawsuit concerned communications about an issue of public interest.  The Court of Appeal disagreed.  The mere fact that the email communications mentioned celebrities or the successful show American Idol is not sufficient to transform private email into a communication about a public issue worthy of anti-SLAPP protection.  Because the anti-SLAPP law did not apply, the defendant was not entitled to a summary dismissal of the lawsuit at its early stage.

You can read the original complaint filed in October 2012 by Steven Tyler’s former management company seeking $8,000,000 here and the February 26, 2015 appellate opinion reinstating the lawsuit here.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

SLAPP’d in San Bernardino: Public Defender’s Retaliation Lawsuit Deemed a SLAPP

In an unpublished decision on Friday, Division One of the Fourth Appellate District ruled that a retaliation civil claim filed by a former public defender against the County of San Bernardino was a Strategic Lawsuit Against Public Participation (“SLAPP”) and subject to accelerated scrutiny and dismissal under California’s anti-SLAPP law.  In Lawrence v. County of San Bernardino (Dec. 12, 2014 D066204), the Court reviewed a decision by Judge Donna G. Garza granting in part and denying in part an anti-SLAPP motion.  The Court of Appeal held that the entire action was subject to anti-SLAPP review and because the plaintiff could not prove a probability of prevailing on his claims, the entire action was ordered dismissed.  Lawrence alleged that he was investigated and fired as a public defender as retaliation for reporting his superiors for conflict of interest and other rules.  The Court of Appeal ruled that all of his claims arose from the investigation into Lawrence and the ensuing dismissal.  Without the investigation into Lawrence, the plaintiff would have no retaliation claim.  Internal investigations of misconduct by government employees are protected activity giving rise to anti-SLAPP protection.  Former public defender Jeffrey Lawrence had been investigated for, among other things, allegedly secretly redacting statements from a witness interview before disclosing the interview to the prosecutor in discovery.  On appeal, Lawrence was required to detail in his brief the facts demonstrating a probability of Lawrence prevailing against the County.  This is an admittedly low burden.  However, Lawrence’s  respondent’s brief did not include a single citation to the appellate record.  Instead, he invited the Court of Appeal to review 139 exhibits filed in the trial court to find support for Lawrence’s arguments.  As a matter of procedure, the Court of Appeal found this improper and found that Lawrence forfeited the issue on appeal.

The teachings of the Lawrence case are two-fold:  First, before filing a lawsuit that touches upon activities protected by the First Amendment, such as internal investigations, a plaintiff needs to consult with an experienced anti-SLAPP attorney to ensure that sufficient evidence exists at the outset of the lawsuit to withstand the inevitable anti-SLAPP motion.  Otherwise, the plaintiff will find themselves on the losing end of an anti-SLAPP motion and a hefty attorney’s fee award.  Second, on appeal, there is no excuse for forfeiting an issue because of not citing the appellate record.  An experienced appellate attorney, familiar with appellate procedural rules, can ensure that arguments are preserved on appeal and considered on their merits.  While no appellate attorney can guarantee a victory on appeal, an experienced appellate attorney can maximize the chances that the argument will be presented in its best light and in a manner that appellate justices expect to see it.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

Court strikes down California’s “collect on arrest” DNA collection law

In November 2004, California enacted a law requiring that anyone arrested for a felony have their DNA collected. This amounted to a significant expansion of the prior law that allowed for collection of DNA after conviction.  The courts have historically approved of DNA laws that require collection from a defendant convicted of a crime. The United States Supreme Court has also held that a warrantless collection of DNA for purposes of confirming an arrested defendant’s identity does not violate the Fourth Amendment. (Maryland v. King (2013) ___ U.S. ___ [133 S.Ct. 1958]).  The Supreme Court held that the procedure in Maryland was no different than a booking photograph or fingerprinting.

On Wednesday, the First District Court of Appeal in California issued its opinion in People v. Buza (Dec. 3, 2014 A125542A).  In Buza, the Court of Appeal held that in the case of DNA collection of arrestees, the California Constitution provides more privacy protection for criminal defendants than the Fourth Amendment does.  The Buza court also noted that the Maryland DNA collection law only authorized DNA collection after a defendant was charged with a crime while California’s law required immediate DNA collection upon arrest.

we conclude that the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees’ expectation of privacy and is invalid under article I, section 13, of the Constitution.

This decision will likely not be the final word on the subject.  Other districts in California may come to different conclusions and ultimately the California Supreme Court may weigh in on this issue.  However, for now, the warrantless “collect on arrest” DNA collection from a criminal defendant is no longer constitutional in California.