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.

California Supreme Court Affirms Absolute Defense to Malicious Prosecution Action

Have you ever written or received a letter threatening a malicious prosecution action? Often times the people writing and sending such letters are unaware that a malicious prosecution action is not a viable claim because of a plaintiff's interim success on a hearing on the merits. The Interim Adverse Judgment Rule is an absolute defense to a malicious prosecution action. In the first action, if there was a hearing on the merits of a claim such as a summary judgment motion and the plaintiff prevails, that victory affords a complete defense in a subsequent malicious prosecution action. This defense applies even where the plaintiff ultimately loses the first action. This month the California Supreme Court issued an opinion that confirmed the continuing vitality of this absolute defense even where the trial court in the first action determines after an interim victory that the action was brought in bad faith. The case of Parrishw v. Watkins (August 10, 2017 S228277) represents an effort to chip away at a solid and often relied on defense in malicious prosecution action.

The Failure to File Proper Appellate Briefs Can End in Disaster for Your Appeal

On July 27, 2017, the Third District Court of Appeal published a decision in Ewaid v. Nationstar Mortgage, LLC In that case, the court never reached the merits of the appeal because of the manner in which the appellate briefs were prepared. Appellant’s counsel did not state the applicable standard of review, did not cite or discuss relevant legal authority and did not file a reply brief. The result, the judgment against the appellant was affirmed and the appeal was a complete waste of time.

This decision provides an extreme example of how arguments can be lost due to the manner of presentation. Even experienced trial lawyers who do not regularly handle appeals can miss some of the nuances of appellate law practice and can get in the way of a Court of Appeal understanding and ruling on the merits of arguments.

Jeff Lewis is an experienced appellate attorney who can advise you about the specifics of your 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 your matter, consider retaining a certified appellate specialist as your lawyer or co-counsel on appeal. Don’t wing it, win it.

Summary of June 2017 Writ Workshop by LACBA Appellate Section

Earlier this week, I attended a fantastic panel by the LACBA Appellate Section on avoiding fatal mistakes in writs. The presentation was made by two writs attorneys of the Second District Court of Appeal. Many of the points were already known to me while some were knew. Below were the most important or interesting points I noted:

If a writ provides a set time (for statutory writs) or is governed by a 60 day deadline (for common law writs) do not wait until the last day to file your writ. In addition to the obvious risks of having a filing problem, waiting until the last day will often undercut the claim of exigency. File the writ at the earliest opportunity.
Trial counsel should be advised not to “waive notice” following a hearing. Doing so deprives appellate counsel of time to work on the writ.
The fact that a petition is supported by a declaration in lieu of a reporter’s transcript will not lessen the chances of the writ being granted. When a reporter’s transcript has been ordered but is not yet ready, the declaration should specify when it was ordered, from who and the expected completion date. When there was no court reporter present, a declaration can suffice but must fairly and completely describe the hearing.
There are differences in the judicial philosophies among districts, divisions and justices. Each has different views regarding calling the clerk, including illustrations in briefs and whether to file an uninvited opposition to a writ.

SLAPP’d by the State Bar: Lack of Subject Matter Jurisdiction Does not Deprive Superior Court of Jurisdiction to Award Attorney’s Fees

This post is part of a series on California’s anti-SLAPP law from the perspective of Los Angeles appellate and trial attorney, Jeffrey 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.

Earlier this year, the California Supreme Court has ruled that when a superior court lacks subject matter jurisdiction to hear the merits of a case, that court still has jurisdiction to award attorney’s fees in connection with an anti-SLAPP motion dismissing the case. (Barry v. State Bar of California (Jan 5, 2017 S214058).

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.

Three Ways to Guarantee that the Court of Appeal Ignores Your Arguments

How can an appellate specialist help you present your arguments on appeal? Sometimes having assistance in preparing a complete appellate record and supporting legal arguments with citations can ensure that the appellate court actually understands and hears the merits of your arguments. The Third District Court of Appeal issued an opinion on May 1, 2017 that is illustrative. In Stover v. Bruntz (May 1, 2017 No. C077206) two parties — Stover and Bruntz — represented themselves in an appeal. Several facts and arguments were not successful due to the brief writing and appellate record issues in the appeal.

Stover wanted to argue on appeal that by accepting the benefits of the lower court order, Bruntz had waived an argument. The Court of Appeal observed:

We note that, Stover’s brief also makes a passing reference questioning whether Bruntz can appeal the court’s order because she allegedly accepted certain child care support payments following the trial. But he does not support the argument with any reasoned analysis or citation to authority. We therefore deem the issue waived.

Bruntz attempted to refer to a motion for relief she had filed but the Court of Appeal wrote:

While Bruntz claims she filed a motion for relief pursuant to Code of Civil Procedure section 473.5, she does not include any such filing in her appendix on appeal. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364[“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two”].)

Bruntz also raised an argument without citing to the appellate record:

Bruntz also contends without any citation to the record that the court found the April 2007 order ambiguous which could not be enforced by contempt. The court’s order itself contains no such finding. The court, moreover, did find Stover in contempt for the six month period from February 2011 to July 2011, which was the subject of Bruntz’s second order to show cause for contempt. In light of the above, and given our conclusion that retroactive modification is only permitted to the date a motion to modify is filed, we need not address Bruntz’s improperly raised ambiguity argument. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte) [“If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived”].)

As to both parties, the Court of Appeal observed:

Both parties’ briefs make numerous factual assertions without any supporting citation to the relatively sparse record, which does not contain a reporter’s transcript or settled statement of the trial proceedings.

The Stover v. Bruntz decision provides extreme examples of how arguments can be lost due to the manner of presentation. The parties in this case were self-represented. However, even experienced lawyers who do not regularly handle appeals can miss some of the nuances of appellate law practice and can get in the way of a Court of Appeal understanding and ruling on the merits of arguments.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your 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 your matter, consider retaining a certified appellate specialist as your lawyer or co-counsel on appeal. Don’t wing it, win it.

SLAPP’d in Boston: Massachusetts High Court Waters Down First Amendment Protection

California’s anti-SLAPP law protects persons who are unfairly targeted in a lawsuit arising from activities protected by the First Amendment. A defendant who is sued for speaking out at a city council meeting or filing a lawsuit can invoke the anti-SLAPP statute and obtain a quick dismissal of a frivolous case. California’s courts have long held that there is no “intent to chill” requirement to obtain a dismissal. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67). The plaintiff’s intentions in filing a lawsuit are “ultimately beside the point.” (Ibid.)

Today, Massachusetts’ high court issued a decision that substantially waters down anti-SLAPP protection in that state. In Blanchard v. Steward Carney Hospital, Inc. (May 23, 2017 No. SJC-12141), the high court ruled that a plaintiff can avoid a dismissal if it can demonstrate that the lawsuit was not filed primarily to chill a defendant’s First Amendment rights. This is a low-threshold that will be easily met by the great majority of plaintiffs in Massachusetts opposing anti-SLAPP motions. Hopefully, California will not follow this direction and introduce a “good faith” intention exception to California’s robust anti-SLAPP statute.

Review of the EverLast Notebook

This is a review of the EverLast Notebook. I heavily rely on technology in the courtroom. My trial exhibits and examination notes are loaded on to my iPad and organized with TrialPad and Microsoft OneNote. But I have never been comfortable writing notes on my iPad. It does not feel comfortable and my writing is illegible and skips around. Instead of handwriting notes on my iPad, my normal practice is to handwrite notes on normal paper and use Microsoft Lens to import the notes into OneNote. I backed the Kickstarter campaign for the Everlast Notebook with some skepticism. The Everlast Notebook promises to be a reusable notebook with fast integration with cloud services such as e-mail, Dropbox and OneNote. I thought I would be disappointed in the writing surface, the pen or the ghosting effect left by numerous uses. My expectations were low, my experience was high. The EverLast Notebook delivers as promises. The provided Frixion Pilot pen is in every sense a normal pen. It writes on the notebook smoothly without smearing. If you don’t like the provided pen, there are a number of colors and styles of Frixion pens on the market.

Each page of the notebook has symbols at the bottom which when checked off provide instructions to your smartphone about where to place photos of the page: email, dropbox, OneNote and other cloud services.

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The free app is easy to set up and easy to use. The app combined with the symbols take one step away from Microsoft Lens: telling the phone exactly where to store the notes. In the case of OneNote, you can specify a page, section and notebook. A big advantage over Microsoft Lens due to Microsoft Lens’ clunky and slow destination selection interface. The biggest surprise is how easily and thoroughly the notebook pages clean up. Everlast delivers on this promise. With a moist rag, the ink wipes away like a dry erase board with no residue or ghosting. A truly reusable notebook. I will be taking this notebook into my next trial.

SLAPP’d in LA: California Supreme Court Narrows the Reach of California’s Anti-SLAPP Law

This month the California Supreme Court issued an opinion that narrows the application of California’s anti-SLAPP law. In Park v. Board of Trustees of the California State University (May 4, 2017 No. S229728), the Supreme Court considered the following question: What nexus must a defendant show between a challenged claim and the defendant‘s protected activity for the claim to be struck?

In Park, a professor applied to a university for tenure. The application was denied. He sued the university alleging discrimination. The university responded with an anti-SLAPP motion. The university argued that the communications leading up to the decision to deny his application were protected by the First Amendment and subject to the anti-SLAPP law. The trial court denied the motion and found that the decision to deny tenur

The trial court denied the motion. It agreed with Park that the complaint was based on the University‘s decision to deny tenure, rather than any communicative conduct in connection with that decision, and that the denial of tenure based on national origin was not protected activity, so the University had not carried its burden of showing Park‘s suit arose from protected activity within the meaning of section 425.16, subdivision (e). Accordingly, the trial court did not reach the second step of the anti-SLAPP inquiry. The Court of Appeal reversed and the California Supreme Court restored the trial court ruling finding that the anti-SLAPP motion should not have been granted. The Supreme Court reviewed a number of appellate court decisions that have properly respected the difference between “activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.” The Park decision represents an important limitation on the scope of anti-SLAPP motions that might otherwise insulate abusive judicial and legislative activities from judicial review.

Slapp’d in Butte County: Funding a Lawsuit Held Protected by the First Amendment

Last month, the Third District Court of Appeal issued its ruling in Sheley v. Harrop (March 20, 2017 No. C077747). In Sheley, the court ruled that funding a lawsuit is an activity protected by the First Amendment and California’s anti-SLAPP law. In footnote 8 of the opinion, the Sheley court ruled:

We disagree with the court to the extent that it concluded that spending money to fund a lawsuit does not constitute protected activity within the meaning of the statutory scheme.

This opinion represents a significant expansion of protection of the First Amendment for defendants targeted in a lawsuit.