SLAPP’d in San Diego: Court of Appeal Confirms Requirement that a Malicious Prosecution Plaintiff Prove it Prevailed as to Entire Prior Action

This post is part of an ongoing series on California’s anti-SLAPP law from the perspective of Los Angeles appellate and trial attorney, Jeff Lewis. The First Amendment and California’s anti-SLAPP law have long been held to protect litigation related activities. Filing a lawsuit, for example, is protected by the First Amendment. Statements made in court proceedings are likewise protected. If a defendant is sued for such litigation activities, the defendant can usually quickly obtain a dismissal by filing an anti-SLAPP motion.

In Lane v. Bell, a plaintiff had lost most but not all of the claims pled in a prior action. In a subsequent action for malicious prosecution, the defendant (who was previously the plaintiff) filed an anti-SLAPP motion. Key to resolving the anti-SLAPP motion was whether the prior plaintiff’s victory as to one cause of action precluded the later claim for malicious prosecution? The Fourth Appellate District concluded it did. To prove a claim for malicious prosecution, a prior defendant must prove that in the prior action he prevailed as to the entire action. The Court of Appeal held that the anti-SLAPP motion was properly granted because the prior plaintiff had prevailed on at least one cause of action.

Jeff Lewis is an experienced First Amendment attorney 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.

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 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.

New California Law Strengthens Consumers’ Right to Post Online Reviews

Earlier this month, California became the first state to pass legislation that further protects a consumer’s right to post a truthful review online. AB-2365, authored by State Assemblyman John A. Perez, was signed by Governor Jerry Brown on September 9 and creates Civil Code, section 1670.8. That section imposes penalties on persons who attempt to get consumers to waive their right to make statements about the services or goods in a contract. The law is intended to curb a trend in anti-consumer contracts where consumers are asked to sign a contract waiving their rights to post review.  In one widely reported instance, a dentist asked patients to assign to the dentist the copyright of any online review and imposed daily penalties of $100 for failure to comply.  In another case, a Utah copy was forced to pay a six figure judgment following their negative review of KlearGear over a $20 desktop toy.  The KlearGear contract had a non-disparagement clause in it.  Under the new California law, any contractual provision that includes a waiver of a right to make statements about the goods or services is declared unlawful and may result in civil penalties of between $2,500 and $10,000 for each violation.

The full text of Civil Code, section 1670.8 is below:

Continue reading “New California Law Strengthens Consumers’ Right to Post Online Reviews”

SLAPP’d in Los Angeles: What types of Lawsuits are Protected by California’s Anti-SLAPP Law

This post is the second in a series on California’s anti-SLAPP law from the perspective of Los Angeles appellate and trial attorney, Jeffrey Lewis.  In the prior post, I described in general what California’s anti-SLAPP law is and how it protects persons sued for exercising their First Amendment rights.  Not all lawsuits, however, are entitled to protection under California’s anti-SLAPP statute.  Only those “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” will be subject to a special motion to strike under California’s anti-SLAPP law.  (Code Civ. Proc, § 425.16, subd. (a).)  Generally speaking, the three groups of activities that are protected by the anti-SLAPP law are: a) accessing the courts; and b) making statements in connections with a judicial, legislative or executive proceeding; and c) statements made in a public forum concerning an issue of public interest.  If the court concludes that a defendant has been sued based on the defendant either accessing the court or making statements protected by the First Amendments, the anti-SLAPP law will apply.  California courts have broadly construed the application of anti-SLAPP protection.  For example,

When CNN declined to provide closed captioning services for the hearing impaired, a group sued CNN for violations of California and federal laws protecting disable persons.  The network brought an anti-SLAPP special motion to strike. The Ninth Circuit held that CNN’s decision was an action protected by the First Amendment thus triggering anti-SLAPP protection.  (Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir. 2014) 742 F.3d 414, 423)

The Orange County Register published an article on its website and allowed readers to post comments.  One reader complained about disparaging comments made about another reader.  When the newspaper declined to remove the comments, a reader sued the newspaper.  The Court of Appeal ultimately held that a commenting forum concerning areas of public interest “is a quintessential way” to facilitate free speech rights and applied the anti-SLAPP law to the case.  (Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398, 405).

Lawyers who filed foreclosure and unlawful detainer actions were sued based on allegations that they knew the foreclosures were not valid.  Because the filing of the prior unlawful detainer actions were statements made in a judicial proceeding, the lawyers’ conduct was protected by the First Amendment and California’s anti-SLAPP law.  (Trapp v. Naiman (2013) 218 Cal.App.4th 113, 120; see also JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1521 [holding that “Filing a lawsuit is an act in furtherance of the constitutional right of petition, regardless of whether it has merit.”].)

There are some important limitations on anti-SLAPP protections.  In the next post, I will cover those types of activities that courts have ruled are not protected activity covered by California’s anti-SLAPP statute.

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 Los Angeles: A Guide to California’s Anti-SLAPP Law

This post is the first in a series on California’s anti-SLAPP law from the perspective of Los Angeles appellate and trial attorney, Jeffrey Lewis. What is a SLAPP?  Consider the following:

  • Members of a group of homeowners speak out at a city council meeting against a real estate development and are then sued by the developer for slander.
  • A plaintiff loses a lawsuit and then finds himself as a defendant sued for malicious prosecution.
  • A Yelp user posts a negative review of a business and then gets sued by the business for defamation.

Each of these situations describes a Strategic Lawsuit Against Public Participation or “SLAPP.” These civil lawsuits are 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 months or 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. However, not all lawsuits qualify as “SLAPPs” and are entitled to protection under Section 425.16. Lawsuits that arise from the following activities may qualify for protection under the anti-SLAPP statute:

(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, or
(4) 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.

(Code Civ. Proc., § 425.16 subd.(e).)
Proving that the lawsuit arose from constitutionally protected activity is only the first step in the anti-SLAPP process.  Even if the lawsuit arises from protected activity, the court is not required to dismiss it. In the next part of this series, I will describe specific examples of the types of statements and activities that have found to be protected by the anti-SLAPP statute.  In later posts, I will describe how courts rule on anti-SLAPP motions, how the California legislature amended the anti-SLAPP law to reduce its use and the impact of these amendments on SLAPPback actions.

Jeffrey Lewis is an 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.

Ninth Circuit Issues First Amendment Ruling in Court Filings Access Case

On Tuesday, the Ninth Circuit issued an important opinion concerning the First Amendment in Courthouse News Service v. Michael Planet (Apr. 8, 2014 11-57187).  Courthouse News Service (“CNS”) had filed the lawsuit against the Ventura Superior Court’s clerk, Michael Planet, challenging the Ventura Court’s policy delaying prompt access to newly filed civil complaints. CNS alleged that in some case access was delayed by over 30 days.  CNS argued that it had a First Amendment right to same day access to those filings.  District Judge Manuel L. Real had abstained from ruling on the dispute pursuant to the abstention doctrine established in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941).  The Pullman abstention doctrine allows federal courts to decline to hear cases concerning federal issues where the case can also be resolved with reference to a state-based legal principle.  Judge Real also abstained from hearing the case on the grounds that the relief sought by CNS was an unwarranted intrusion by the federal judiciary with the orderly administration of the superior court and the spending priorities of the California judiciary.

In an opinion authored by Judge Kim McLane Wardlaw, the Ninth Circuit reversed the dismissal.  It held that use of the Pullman abstention doctrine was not appropriate in the context of this First Amendment dispute.   In underscoring the important First Amendment principles raised by CNS’s allegations, the Ninth Circuit noted that the right of the press to access judicial filings is “essential not only to its own free expression but also to the public’s.”  In reversing Judge Real’s decision, the Ninth Circuit did not rule that CNS has the First Amendment right to same day access to court filings.  However, it did rule that the district court must hear the case on the merits and was not entitled to abstain from ruling under the Pullman abstention doctrine.  Although the Ninth Circuit did not reach the merits of CNS’ First Amendment claims, this is nonetheless an important First Amendment case because it curtailed the ability of defendants to avoid or defer First Amendment challenges based on the Pullman abstention doctrine.

Other resources about this case:

 

 

 

Ninth Circuit extends First Amendment protection to bloggers

Today the Ninth Circuit issued its opinion in Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014).  The decision extended to bloggers the same First Amendment protections that are afforded to traditional journalists.  From the opinion:

This case requires us to address a question of first impression: What First Amendment protections are afforded a blogger sued for defamation? We hold that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.

The Ninth Circuit found that attempts to distinguish between bloggers and traditional media outlets for purposes of defamation liability were “unworkable”:

In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones

This case represents an important expansion of protection for persons who use the internet to communicate, report news and express opinions.  Defamation liability will not be imposed absent some showing of intent and actual damages, the same legal standards governing defamation actions against traditional journalists.

(Hat Tip to Ben Shatz at Southern California Appellate News).