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In an unpublished decision on Friday, Division One of the Fourth Appellate District ruled that a retaliation civil claim filed by a former public defender against the County of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.

The Appellate Court has Issued its Opinion, Now What?

This post is the fourth in an ongoing series explaining the process of a civil appeal.  Prior posts described filing of a notice of appeal, filing the record on appeal and filing appellate briefs with the Court of Appeal.  After briefing is completed, the court will set oral argument.  In Los Angeles and Orange County, this usually occurs within 60-120 days from the date the last brief is filed.  Following oral argument, the court will take the matter under submission and then issue its written opinion deciding the appeal within 60-90 days after oral argument.  For most disputes, the written opinion is the end of the appellate process.  However, under some circumstances, the losing party may try to seek further relief

Further Proceedings in the Court of Appeal.  A party to an appeal may petition the court of appeal for a rehearing.  A court of appeal may grant rehearing to correct any error that was made in the opinion when the correction “would likely produce either a different result or different reasoning.”  (Alameda County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325, 339)  Typical grounds for such a petition are: 1) that the court of appeal’s decision omits a material point of fact or law; 2) mistake of law; 3) the directions to the trial court require clarification or correction; or 4) a process error occurred in the composition of the panel of justices who heard oral argument.  Notably, this is not an opportunity to simply re-hash arguments previously raised to the court in the prior briefs or, worse, to raise new issues not previously argued.

Whether to Petition the California Supreme Court. A party losing an appeal may also seek relief in the California Supreme Court.  Unlike proceedings before the Court of Appeal, in which every litigant’s case is heard on the merits, very few cases are accepted by the California Supreme Court for review.  Less than five percent of petitions for review are granted by the California Supreme Court.  A petition for review may be granted:

The Appellate Record is Complete, Now What?

After a notice of appeal is filed with the trial court and the record on appeal is filed with the Court of Appeal, the parties submit briefs to the Court of Appeal and participate in oral argument.  This post is the third in a series on explaining the process of a civil appeal.

Appellate Briefs.  In most civil appeals in California, there are three briefs: an appellant’s opening brief, the respondent’s brief and the appellant’s reply brief.  No other briefs are allowed absent court order. The purpose of the opening brief is to demonstrate how the trial court erred and why the court of appeal should reverse.  The purpose of the respondent’s brief is to demonstrate how the order below was correct.  The reply brief focuses on any arguments raised in the respondent’s brief.  Successful appellate briefs differ in significant respects from briefs filed in the trial court.  Appellate briefs primarily focus on legal issues and consider the relevant standard of review on appeal.  While trial level briefs may include credibility issues and weighing of evidence, appellate briefs normally should not address such issues.  A common error made by attorneys not well versed in appellate law is to simply cut and paste trial level arguments into their appellate court briefs.  This can be disastrous.

Oral Argument is Interactive, not a Speech. After the briefing is complete, the Court of Appeal will schedule oral argument.  In one appellate court, the Fourth District, Division Two, in Riverside, the court may issue a written tentative decision in advance of oral argument. In Division Eight of the Second District, in Los Angeles, the court may issue an oral tentative summary ruling a few minutes before oral argument.  Appellate attorneys general enjoy having advance knowledge of the court’s thinking.  In the remaining appellate courts in California, oral argument is held without the benefit of tentative rulings.  The justices may ask questions of the attorneys or they may simply listen to counsel’s argument.  A big mistake that some lawyers make is drafting a long speech, instead of argument, and sticking with that speech rather than adapting your points in response to your opponent or comments from the bench.  The better practice is to prepare oral argument in small, topical segments.  Be prepared to address each segment if there are no questions, but also be prepared to re-order or delete certain topics based on the direction of the justices or points raised by your opponent.  In one memorable oral argument I had, I stood up, greeted the justices and before I could get two words out the presiding justice said “Sit down.  We agree with you.  We want to hear from the respondent.”  Based on that, I offered no additional argument and won the appeal.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ 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 an appeal in Los Angeles, Orange County or San Diego consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

I Filed a Notice of Appeal, Now What?

The process of pursuing a civil appeal in California can be a bit of a mystery for the first time litigant or trial lawyer unfamiliar with appeals.  This post is the second in a series on explaining the process of a civil appeal.  After a notice of appeal is filed, the Court of Appeal will require the appellant to complete and file a civil case information sheet.  By requiring parties to attach the order appealed from and to answer  questions about the dates when the order was entered and when the notice of appeal was filed, the information sheet acts as a screening process to weed out untimely or improper notices of appeal.   Assuming that the appeal proceeds, the next step in the process is the designation of the record.  For most civil appeals in California, the normal record consists of the documents filed with the trial court and the reporter’s transcripts.  An appellant notifies the trial court about what to include in the record on appeal by filing a designation of record.  The judicial council form, APP-03, can be used for this process.

The documents filed with the trial court are presented in bound, booklet form to the Court of Appeal.  The appellant can designate a Clerk’s Transcript, by providing the trial court with a list of all items to be included.  If the list is incomplete, the respondent can counter designate the missing documents.  Alternatively, the appellant can choose to prepare an appendix of documents themselves and serve that appendix at the same time as the opening brief. Some appellate practitioners prefer to use an appendix so that they decide the contents of the record on appeal at a later time, closer to when the briefs are submitted.   If the appellant’s appendix is incomplete, the respondent can prepare and file a respondent’s appendix at the time the respondent’s brief is filed.  Whichever method is used, a designation of the record needs to be filed with

Reporter’s Transcripts.

I Hired an Appellate Specialist, Now What?

The process of pursuing a civil appeal in California can be a bit of a mystery for the first time litigant or trial lawyer.  This post is the first in a series on explaining the process of a civil appeal.  The first and most critical step is to ensure that a proper and timely notice of appeal is filed.

Is the Order Appealable?  Not all judgments and orders are immediately appealable.  Some orders can only be reviewed by way of a statutory writ (such as orders on motions to expunge lis pendens, to disqualify judges and resolving Public Records Act requests).  A crucial and initial step is analyzing whether and how to seek review of the order or judgment, by writ or direct appeal.  If the order disposed of all claims between any two given parties, an appeal may lie.  If there are claims remaining to be litigated between the two parties, such as a pending cross-complaint, a discretionary writ may be the only way to seek review now rather than after entry of a final judgment.

Timing is Everything. In California, the normal deadline to file a notice of appeal is 60 days from when a party or clerk provides notice of entry of judgment. The deadline is jurisdictional. If the deadline is missed there is no right of appeal. Sometimes a different deadline applies if no party or clerk gave notice of entry of judgment or if any party filed a motion for new trial, vacate the judgment, for judgment notwithstanding the verdict or for reconsideration of an appealable order. When an order is entered by the court and you want to challenge it on appeal, consideration must be given as to whether the normal 60 day deadline applies or if one of the exceptions to the rule governs.

The notice of appeal is filed with the trial court along with the appropriate filing fee.  Assuming that the notice is timely and the judgment or order is appealable, the next step in the process is the designation of the record on appeal.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ 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 an appeal in Los Angeles or Orange County, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.