When I suggest that a caller should pursue a certain strategy, I sometimes continue to monitor the case to see if my advice was taken to heart. Sadly it is often the case that my advice was ignored and the caller suffered a terrible result.

Some of the most costly examples are when I recommend to a client that they should dismiss or not pursue their complaint because it is clearly a SLAPP.

Example 1: The Case of the Mad Appellant

The first example involved an attorney’s blog where he reported on interesting appellate opinions. The caller, we’ll call him Bob, had pursed an unsuccessful lawsuit followed by an unsuccessful appeal. The resulting published opinion from the Court of Appeal included some interesting legal precedents, so the attorney (who had nothing to do with the case) wrote about the opinion, summarizing the facts of the case.

Bob felt like the attorney had misstated the facts, and sued for defamation on that basis. He directed me to a passage in the attorney’s article and compared it to the way the Court of Appeal had summarized the facts. In Bob’s mind, the differences were enough to make the attorney’s version a false statement of fact, but I viewed it as a distinction without a difference.

The defendant’s attorney had written to warn Bob that if he did not voluntarily dismiss the defamation complaint, they would respond with an anti-SLAPP motion. The attorney had given Bob seven days to dismiss the case, and two weeks had already passed. Bob wanted to know what he should do.

I reviewed the complaint, and it was clear that an anti-SLAPP motion would almost certainly be successful. Reporting on a court decision would likely be found to be a matter of public interest, and there are additional protections for such articles under Civil Code § 47(d). Further, on a defamation claim, a statement is not false just because certain facts are misstated, so long as the “gist or sting” of the statement is accurate. The fine distinction Bob was making about the differences between the opinion and the article did not alter the gist or sting of the factual statements.

I told Bob he had been given a gift by the attorney’s warning that an anti-SLAPP motion was in the offing. I explained that once the anti-SLAPP motion is filed, the attorney will be entitled to recover attorney fees, even if Bob then elects to dismiss the complaint. I told him he needed to win the race to the courthouse to get his dismissal on file before the defendant filed an anti-SLAPP motion. Bob would not necessarily be giving up the case. He could dismiss without prejudice and perhaps find a creative claim that would not run afoul of the anti-SLAPP statute.

“Why not just call the attorney and agree to dismiss the case?” asks someone in the back row. Thank you for engaging. That would likely work, but what if the attorney stuck to his deadline, and for the past week has been preparing the anti-SLAPP motion? Now the attorney is incentivized to file the motion in order to recover the attorney fees incurred in drafting the motion. He or she might rush to get the motion filed knowing that the plaintiff intends to dismiss. Besides, most all courts use electronic filing these days. In less time than it would take to reach the attorney, the dismissal could be prepared and filed.

Bob thanked me for my time but disagreed with my analysis. He had researched the issue and was convinced that he could defeat any anti-SLAPP motion. Some potential clients struggle with the concept that the harm caused by a statement does not dictate whether it is defamatory. Revealing an entirely truthful fact about someone could be devastating to their life, but it doesn’t make it actionable. I think that was Bob’s issue.

I didn’t hear from Bob for more than a year. He called, and after reminding me who he was and the facts of the case, he said, “I should have listened to you.”

You see, Bob had decided to stand firm. He had found an attorney who said I was crazy with the heat, and that there was no way the attorney’s blog would satisfy the first prong of the anti-SLAPP analysis.

Bob did not dismiss the action, and opposing counsel made good on his threat to bring an anti-SLAPP motion. As predicted, the motion was granted, and Bob unsuccessfully appealed the ruling on the anti-SLAPP motion.

So was Bob calling just to tell me how right I had been? No. Between the original anti-SLAPP motion and the appeal, the defendant had incurred over $100,000 in attorney fees, and judgment against Bob had been entered in that amount. If Bob had listened to me and dismissed the complaint, he would have owed nothing. According to Bob, the attorney was negligent in failing to tell him he should dismiss, as I had. Bob wanted to sue his attorney for the fees he had been ordered to pay.

I declined. I had advised Bob of that potential outcome. I felt it was disingenuous to hold an attorney responsible for an outcome Bob knew was possible. And a different judge on a different day might have concluded that an attorney’s blog did not satisfy the anti-SLAPP statute. It was not necessarily negligent for the attorney to pursue the motion.

If only Bob had listened to me.

Example 2: Everything I Said Was True

I was contacted by a potential client, let’s call him Bill, who wanted me to bring an anti-SLAPP motion against a defamation case. He had posted a review about a business and its owner, basically accusing both of defrauding him. They took umbrage with the remarks, and sued for defamation. Bill wanted me to dispose of the action with an anti-SLAPP motion, claiming he could prove everything he said in the review was true.

I reviewed the complaint and advised him that an anti-SLAPP would not be successful. It was the classic situation where the defendant would likely prevail on the first prong of the anti-SLAPP analysis – establishing that the statements satisfied the anti-SLAPP statute – but since in the anti-SLAPP context the plaintiff’s evidence is taken as true, there would just be no way to prevail on the second prong.

I told him how it would play out.

Bill would file the anti-SLAPP motion, stating that the plaintiffs had lied to him about the transaction. He would support the anti-SLAPP motion with his own declaration, attesting to all the misrepresentations made by plaintiffs. With it thus established that the misrepresentations had been made, the review was truthful and not defamatory. Since the post was a review of the business and its owner, the court would almost certainly find that the first prong of the anti-SLAPP analysis was satisfied as a matter of public interest.

So far so good.

But then the plaintiffs would oppose the motion. They would simply provide a declaration stating that they never made any of the misrepresentations alleged by defendant. Since their evidence must be taken as true, that means they did not make any misrepresentations to Bill, making his post claiming they defrauded him false and defamatory. (The actual standard on the second prong is whether plaintiff has stated a prima facie case “if the plaintiff’s evidence is credited.”)

The court is not permitted to weigh the evidence, so it must disregard Bill’s declaration. The court would have to “credit” plaintiffs’ evidence that they never made any misrepresentations. Plaintiffs thus stated a prima facie case for defamation, and the anti-SLAPP motion would be denied.

I told Bill he should just defend the case, or work out a resolution with the plaintiffs, and not to bring an anti-SLAPP motion. Bill sent me multiple ChatGPT analyses reaching a different conclusion, trying to convince me to bring an anti-SLAPP motion, but I stood firm on my conclusions.

More than a year later, Bill called again.

You see, Bill had rejected my advice, and found an attorney willing to bring an anti-SLAPP motion. As predicted, the anti-SLAPP motion had been denied. But even then, Bill wouldn’t let it go. He instructed the attorney to appeal the ruling on the anti-SLAPP motion, and that appeal also failed.

Bill had spent over $60,000 in attorney fees on the original motion and the appeal, and he wanted me to negotiate a refund of those fees from his attorney. His reasoning was that since I was the one who had told him not to bring an anti-SLAPP motion, I was in the best position to explain to his attorney that he never should have filed the motion or the appeal, and should voluntarily refund some or all of the fees.

I declined. I pointed out that he was aware of what I said, but still decided to move forward. How was the attorney any more culpable than him? True, a client is entitled to rely on the advice of their attorney, and the attorney had apparently recommended filing the anti-SLAPP motion. But Bill also had my input, so at a minimum he knew this was a possible result, and was now seeking to make the attorney responsible for his decision to roll the dice.

And the reality is that even though I could predict the failure of an anti-SLAPP motion, the attorney was not necessarily negligent in bringing one. The plaintiffs could conceivably have filed an honest declaration, admitting that they did indeed make the representations alleged by defendant, arguing instead that those statements were true. In that case, the judge could have concluded that the statements were misleading, and determined that the plaintiffs were not likely to prevail on the defamation action.

If only Bill had listened to me.

The post Sometimes the Best anti-SLAPP Strategy is to Win the Race to the Courthouse appeared first on California SLAPP Law.

An anti-SLAPP motion can be viewed as a somewhat one-sided mini-trial, where the plaintiff is required to show sufficient evidence to establish a likelihood of succeeding on their claims. It’s one-sided because the plaintiff’s evidence is “accepted as true,” and the defendant’s evidence is considered only to determine if it establishes an affirmative defense as a matter of law.

But therein lies the rub. The plaintiff must produce sufficient evidence to establish a probability of success, while at the same time being prevented from gathering that evidence due to the discovery stay the motion imposes. Perhaps more frustrating, the plaintiff may have the evidence, but the evidence is inadmissible due to issues that could be easily addressed with a little discovery. For example, a plaintiff was provided with a company email from and anonymous source that clearly defames him, but that email is inadmissible hearsay unless and until he conducts discovery to authenticate it. Should such a case be dismissed pursuant to an anti-SLAPP motion even though the supporting evidence exists, but is not yet admissible?

In the decision of Sweetwater Union High School District v. Gilbane Building Co., the California Supreme Court came up with a brilliant way to address this conundrum. Sweetwater clarifies that the inquiry is not whether the proffered materials are themselves admissible in their present form, but whether the facts asserted are reasonably capable of being admitted at trial.

The Factual Background: Bond Contracts and Bribery

In Sweetwater, the Sweetwater Union High School District sought to void construction management contracts awarded after voters approved Proposition O, a bond measure funding capital improvements. According to the District, representatives of the contractor entities provided gifts, meals, travel, entertainment tickets, and other financial inducements to school officials — including the superintendent and board members — in violation of Government Code section 1090.

A criminal investigation followed. Several district officials and contractor representatives entered guilty or no-contest pleas. Their change-of-plea forms included factual narratives attesting under penalty of perjury that gifts were provided with the intent to influence the awarding of contracts.

But when the District filed a civil action seeking disgorgement and contract avoidance, the defendants responded with an anti-SLAPP motion. The trial court denied the motion, due in part to the lack of admissible evidence, and the Court of Appeal affirmed. The Supreme Court granted review to resolve conflicting appellate authority on what evidence may be considered at the second prong of the anti-SLAPP analysis, where the plaintiff is required to present their evidence.

The Legal Framework: The Second Prong

As the Court reiterated, anti-SLAPP analysis proceeds in two steps. If the defendant meets the first prong—showing the claim arises from protected activity—the burden shifts. At the second prong, the plaintiff must demonstrate a probability of success.

The inquiry is “summary-judgment-like,” but it is not summary judgment. The court does not weigh evidence or resolve conflicts; it determines whether the plaintiff has made a prima facie showing sufficient to sustain a favorable judgment if the evidence is credited.

Critically, the statute directs the court to consider “the pleadings, and supporting and opposing affidavits stating the facts.” The recurring problem had been whether courts may consider materials that are hearsay in form—such as plea forms or grand jury transcripts—when evaluating that showing.

Form vs. Admissibility: Two Distinct Questions

The Supreme Court separated the issue into two components:

Form: Does the proffered material qualify as an affidavit, declaration, or equivalent?

Substantive admissibility: Are the facts asserted reasonably capable of admission at trial?

On the first question, the Court held that change-of-plea forms signed under penalty of perjury satisfy Code of Civil Procedure section 2015.5 and may be treated as declarations.

Even more significantly, the Court held that grand jury transcripts—though not “subscribed” by the witness—may be considered as the functional equivalent of declarations because they are sworn testimony under penalty of perjury. In doing so, the Court disapproved contrary appellate authority that had applied the former-testimony hearsay exception too rigidly in the anti-SLAPP context.

Although a seemingly obvious point, the Court emphasized that affidavits and declarations are themselves hearsay. They are permitted at the anti-SLAPP stage not because they satisfy a hearsay exception, but because the statute authorizes their use for purposes of the motion.

The Critical Holding: “Reasonably Possible” Admissibility

The most important portion of Sweetwater addresses the second issue: whether the facts asserted must already be admissible in their present form.

The Court reaffirmed that plaintiffs must rely on evidence that would be admissible at trial. However, it rejected the argument that the plaintiff must establish, at the anti-SLAPP hearing, that every evidentiary foundation has already been laid. Instead, the governing standard is whether it is reasonably possible that the evidence described in affidavits, declarations, or their equivalents will be admissible at trial.

The Court drew a distinction between:

Evidence categorically barred by a substantive rule (e.g., absolute privilege, incurable hearsay, statements made only on information and belief); and

Evidence that is presently deficient for lack of authentication, foundation, or other curable preconditions.

The Court concluded that if the defect is incurable, the court must disregard the evidence. But if the defect is curable—if the witness could testify at trial, if foundation could be laid, if authentication could be supplied—the evidence may be considered.

The Court analogized to cases allowing consideration of materials at summary judgment where the only obstacle was a missing foundational showing that could be supplied later. In Sweetwater, there was no categorical bar. The plea statements appeared admissible as declarations against penal interest under Evidence Code section 1230. Moreover, the signers themselves—or other competent witnesses—could testify at trial.

Why This Matters: Anti-SLAPP Is Not a Trial on Admissibility

The Court’s reasoning reflects a practical reality: anti-SLAPP motions are filed early, discovery is stayed, and plaintiffs often lack access to live testimony. Requiring plaintiffs to overcome every evidentiary hurdle at this stage would convert the second prong into a premature evidentiary trial. That is not the statute’s purpose. The anti-SLAPP law is designed to eliminate meritless suits—not to abort potentially meritorious ones due to temporary evidentiary limitations.

In short, Sweetwater prevents defendants from weaponizing technical admissibility objections to defeat claims that have substantive evidentiary support.

Practical Implications for Plaintiffs

For plaintiffs opposing an anti-SLAPP motion, Sweetwater provides several strategic guideposts:

Use sworn materials wherever possible. Plea forms, deposition excerpts, transcripts of sworn proceedings, and declarations satisfy the statute’s reliability concerns.

Address admissibility affirmatively. Even though the material itself may be hearsay, explain how the facts asserted will be introduced at trial (e.g., live testimony, hearsay exception, business records foundation).

Distinguish between curable and incurable defects. If an objection concerns authentication, foundation, or unavailability, argue that the defect is curable and thus insufficient at this stage.

Invoke the discovery stay rationale. Emphasize that early timing and stayed discovery make complete evidentiary development impracticable.

Request limited discovery if necessary. Section 425.16(g) allows targeted discovery upon good cause—particularly useful if the defendant’s objection concerns foundational gaps.

The Bottom Line

Sweetwater restored balance to the second prong analysis. Plaintiffs must present competent evidence, but they need not prove full trial admissibility at an embryonic stage of the case. The operative question is whether the facts asserted are capable of being proved by admissible evidence at trial.

For lawyers litigating anti-SLAPP motions, Sweetwater is indispensable authority. It confirms that the second prong is a threshold screening device, not an evidentiary gauntlet.

The Supreme Court made clear that the statute’s purpose is to weed out meritless suits—not to provide defendants with a procedural trapdoor when plaintiffs possess sworn, substantive evidence of wrongdoing.

The post Sweetwater — How to Defeat an anti-SLAPP Motion with Inadmissible Evidence appeared first on California SLAPP Law.

I of course take great joy in extricating my client from a lawsuit with an anti-SLAPP motion. The client was stressed over being sued, facing over a year of litigation, and the possibility of having to pay a judgment. Then I swoop in and in relatively short order and with relatively modest fees, make all the problems go away. I even get their attorney fees paid by the Plaintiff.

But I also feel a little pain for the plaintiffs, especially when they are representing themselves. If an attorney files a SLAPP on behalf of their client, then shame on the attorney. They should know better. But what does Joe Citizen know about anti-SLAPP law? He feels he was done wrong, sues for redress, and ends up unwittingly filing a SLAPP.

The most fertile ground for these self-inflicted wounds are lawsuits for Malicious Prosecution. Bill sues Joe for something, and Joe ends up paying a lot of money to an attorney to fight the lawsuit. But ultimately Joe wins, so he sues Bill for Malicious Prosecution in order to get back his attorney fees. A perfectly legitimate goal. If he hits a home run, he might even get punitive damages. That’ll teach Bill.

But what Joe does not know is that EVERY action for Malicious Prosecution satisfies the first prong of the anti-SLAPP analysis. The anti-SLAPP statute, Code of Civil Procedure 425.16, subpart (e), protects:

(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.

Joe is suing Bill because Bill sued Joe. He is suing for a written statement (the complaint) made in a judicial proceeding. His Malicious Prosecution action therefore automatically satisfies the first prong of the anti-SLAPP analysis, namely, that it falls under the anti-SLAPP statute.

But we still have the second prong. Even though the first prong is satisfied, Joe can defeat the anti-SLAPP motion if he can present sufficient evidence to show that his Malicious Prosecution action can succeed.

The elements of Malicious Prosecution.

To make that showing, Joe must list all the elements of a Malicious Prosecution claim and show proof as to each element. So let’s begin with those.

Three elements must be pleaded and proved to establish the tort of malicious prosecution:

(1) A lawsuit was commenced by or at the direction of the defendant which was pursued to a legal termination in … plaintiff’s favor;

(2) the prior lawsuit was brought without probable cause; and

(3) the prior lawsuit was initiated with malice.

First, take note of number 1 – A lawsuit was commenced by or at the direction of the defendant which was pursued to a legal termination in … plaintiff’s favor. This element is why I have to explain to so many clients why they can’t file a cross-complaint for Malicious Prosecution against a plaintiff who has filed a frivolous complaint. You can’t sue for Malicious Prosecution until AFTER you have won the action, so it can’t be pursued in the SAME action. This element is also why I have on multiple occasions brought successful anti-SLAPP motions against cross-complaints containing a Malicious Prosecution claim.

And note also the “legal termination” language.

If Bill just got tired of the litigation costs and dismissed the complaint against Joe, that is not a determination on the merits, and hence would not support a Malicious Prosecution action.

On the other hand, if a Joe had filed a dispositive motion such as a motion for summary judgment, and THEN Joe decided to dismiss, that CAN be a basis for a Malicious Prosecution action. In that case, the reasoning goes, Joe did prevail on the merits because Bill read the motion and saw that he was going to lose, and that’s why he dismissed.

So those are some points that can trip up Malicious Prosecution plaintiffs, but the next two elements are the ones that most often get plaintiffs into trouble. It is not enough that the Plaintiff won the underlying action. He must also show that the underlying complaint was initiated WITHOUT PROBABLE CAUSE and WITH MALICE.

I’ll use two recent cases of mine to illustrate how tough it can be to meet those elements.

The Case of the Missing Wife.

In the first case, husband comes home from work after a hard day at the quarry to find his wife and children gone. The wife left a note, “I’ve taken the children on a vacation,” with no destination provided. That’s highly out of character, and the husband would certainly liked to have been included in a family vacation, but he expects his wife will call to explain.

But she doesn’t. A day goes by, two days go by, and husband finally calls the police on the non-emergency line to see if he should be doing something.

Wife had not answered any of the husband’s phone calls but when the police came up in her caller ID, she finally answered. She said she was leaving her husband, and was taking the children to be with her parents in Oklahoma for two weeks while she figures things out.

But then two weeks come and go, so husband goes to family court to seek custody. The judge orders the wife to return the children to California.

She doesn’t obey the order, so eventually she is arrested in Oklahoma and returned to California, and released on bail. The District Attorney decides to charge her with interference with child custody. You see, a parent has the absolute right to custody of her children, but so does the other parent. You can’t just unilaterally decide to deprive the other parent of their equal custody right.

As far as what she was charged with, it should have been a slam dunk, but for whatever reason the jury decided in her favor. I guess they just decided that it wasn’t that big of a deal that the father was kept from his children for over a month while the wife figured things out, even if she did defy the court’s order.

So having defeated the criminal charges, the wife turns around and sues the husband for Malicious Prosecution, claiming that she had prevailed in court (which she absolutely had), and that the charges were without probable cause because husband knew where the children were, even though she lied about how long they would be gone. She wants to be reimbursed for all of her attorney fees spent fighting the legal action and money for emotional distress.

The husband brilliantly retained me to fight the Malicious Prosecution claim. I of course responded with an anti-SLAPP motion. As stated above, EVERY Malicious Prosecution action automatically satisfies the first prong of the anti-SLAPP analysis. The plaintiff is suing because the (now) defendant sued. In fact, such claims logically should be entirely barred by Civil Code 47 under the absolute litigation privilege, except that the courts have carved out this exception.

The courts decided that there has to be some recourse when someone brings an action with malice and without probable cause, so the only two claims that are permitted are Malicious Prosecution and Abuse of Process, although a viable Abuse of Process claim is rarer than a unicorn. So really, a claim for Malicious Prosecution is the only claim that has a chance.

In my anti-SLAPP motion, I spent almost no time arguing the first prong of the anti-SLAPP analysis, because case law is so clear on that point. But Plaintiff, who originally represented herself, failed to see that reality, and tried to argue this was not a matter of public interest, but that is a nonsensical argument. If you go back above and read subparts (e)(1) and (2), you’ll see that there is no requirement that the litigation involved a matter of public interest.

In defense of the wife, the wording of the statute is confusing in that regard, and early court opinions did in fact conclude that in all cases a matter of public interest is required, but the California Supreme Court has since ruled otherwise.

But was the complaint initiated without probable cause?

So that takes us to the second prong. Can the wife produce sufficient evidence to prove that husband initiated a criminal investigation without probable cause?

In that regard, she had two nearly impossible hurdles.

In a typical Malicious Prosecution case – at least from the ones I have handled – it is a plaintiff in a CIVIL action who decides to sue the defendant. So all of the blame falls on the civil Plaintiff for that decision.

But when you call the police, who makes the decision to file charges? It’s the police, not the victim. And one very important fact in that regard (did you notice it?) is that husband called the non-emergency line. He wasn’t calling to report a crime, he was calling to report a concern. He wanted to know what he should do. He never once asked for his wife to be arrested. The District Attorney only decided to charge a crime when the wife failed to comply with the court order.

It is true that if someone reports a crime without any reason to believe a crime has been committed, that can be the basis for a Malicious Prosecution action. But a citizen is not required to know what constitutes a crime. All that is necessary is that the reporting party THINKS there is something inappropriate going on. The husband was being kept from his children, and thought, correctly, that there must be something that could be done.

So the wife failed at the very first element. She could not show that my client had initiated any complaint against her. It was the DA who had made that decision.

The Advice of Counsel Defense.

The same is true in the civil context. Let’s say you are rear ended and hire a personal injury attorney to sue for your injuries. The attorney tells you to sue for negligence and intentional infliction of emotional distress (“IIED”).

The negligence claim is entirely appropriate, but there is no basis for a claim for intentional infliction of emotional distress. It was negligence, not an intentional tort.

Under this scenario, even if you prevail on the claim for negligence, the defendant could sue you for the failed claim for IIED. A Malicious Prosecution action does not have to be an all-or-nothing action. Each claim is a possible basis.

But if you acted on the advice of your counsel, that absolves you from any liability for the IIED claim, and it all falls instead on the attorney. This is called the ADVICE of COUNSEL defense.

The only limitation is that you must have at all times been truthful with your attorney. If you told the attorney that after the accident the defendant would drive by your house and should taunts about the pain you were in, and THAT is why the attorney thought IIED was a valid claim, then that’s on you if that never happened.

So back to the wife, she also could not overcome the advice of counsel defense. In the criminal context, it is the DA who decides what charges to bring. The DA represents the government, not the victim. Even if the victim tells the DA they don’t want to prosecute, the DA is free to file charges. So the DA’s decision to charge the wife amounts to advice of counsel, and shields the husband who called the police from liability.

The Whistleblower.

The next example also involved the Advice of Counsel defense, although that was not how it was ultimately decided.

My future client had complained about an unsafe condition at her job, and was thereafter fired. She sued for wrongful termination. Originally she had named only the company as a defendant, but she later hired a new attorney, and that attorney told her she should also name the supervisor who had fired her. We’ll call him Mean Boss.

The case went to trial, and although three jurors agreed that she had been wrongfully terminated, in civil court only nine need to agree, so she lost the case.

The company didn’t sue for malicious prosecution, but Mean Boss did. But before he sued, he sent the former employee a demand letter, seeking reimbursement of the $150,000 he had spent defending himself.

I was initially retained just to respond to the letter, because the client was savvy enough to recognize that the threatened Malicious Prosecution action was likely a SLAPP. He thought perhaps if I explained to opposing counsel why the action they were threatening was a SLAPP, it might prevent the action from ever being filed.

Typically when I review a complaint and see that it is a SLAPP, I don’t advise the plaintiff of that fact. I don’t want to give them the opportunity to quickly amend the complaint and possibly avoid the anti-SLAPP motion. But here I was specifically retained to warn them off, so that is what I did. I wrote to opposing counsel and explained why his complaint would fail to my withering anti-SLAPP motion if he dared to file it.

But I guess my saber-rattling wasn’t up to snuff that day, or he thought he knew better than me, so he went ahead and filed for both Malicious Prosecution and Abuse of Process. As I explained above, a valid Abuse of Process claim is next to impossible to state, so right out of the gate I knew I had an almost guaranteed 50% victory, even if I lost on the Malicious Prosecution claim.

I ended up with half a dozen arguments in favor of granting the anti-SLAPP motion, but the two strongest were Advice of Counsel and established probable cause.

As to Advice of Counsel, Mean Boss had only been added because my client’s attorney had told her to do so. I supported the motion with a declaration from the client and her attorney attesting to this fact. How could Mean Boss prove that had not occurred?

But there was an added twist.

Prior to commencement of the wrongful termination trial, the defendants were so confident they could prove that she had not been fired as a result of her complaints about workplace safety, that they brought a motion for summary judgment. That motion was denied.

And what does it mean when a motion for summary judgment is denied? It means that the judge has considered all the evidence from both sides, and has determined that the case cannot be decided as a matter of law.

And what does it mean when a case cannot be decided as a matter of law? It means that the court concluded that the plaintiff has established that there is probable cause to proceed.

This is referred to as the Interim Adverse Judgment Rule.

The denial of the summary judgment motion established probable cause, and thereby automatically defeated any subsequent case for Malicious Prosecution. Now, the summary judgment motion must involve the same issues for the Adverse Judgment Rule to apply. For example, if the motion had been based on an argument that the Plaintiff missed the statute of limitations, and that was denied, that would not establish any probable cause on whether the Plaintiff had been fired because of her report of safety violations.

But here the issues were identical. Defendants had argued in the underlying case that she had been fired for reasons other than the report of unsafe conditions, and they were using those same arguments as proof that she knew her claims were without merit in support of the Malicious Prosecution action.

This had been my primary argument to opposing counsel in response to his demand letter. It’s not like I hid the ball.

Based on his subsequent opposition to my anti-SLAPP motion, I now know the flaw in his logic. He thought he could use the evidence elicited at the trial to go back and refute the judge’s ruling on the motion for summary judgment. He argued, “Well the judge was told this by plaintiff in opposition to the motion for summary judgment, but the trial later revealed she was lying.” But the fact that the jury does not agree with the Plaintiff’s testimony does not mean she is lying. Opposing counsel could not identify any alleged lies.

The judge went with the easiest argument, and ignored all my others. He found that the Interim Adverse Judgment Rule established probable cause, and GRANTED my anti-SLAPP motion as to both causes of action.

As these cases illustrate, an action for Malicious Prosecution can be fraught with peril. They can be won under the right circumstances, but there are high hurdles to overcome. In the second case, Mean Boss might have been better served suing the attorneys since that would have eliminated the Advice of Counsel defense as to them, but he still would have been tripped up by the Adverse Interim Judgment rule.

So why are Abuse of Process claims so hard to win?

Abuse of Process claims are protected by the Litigation Privilege afforded by Civil Code § 47. So long as the “process” was used for its intended purpose, it’s not an abuse.

For example, in one reported case, the defendant was sued for money due on a contract. But it was alleged that the process server lied about ever serving the complaint on the defendant. Plaintiff was then able to obtain a default judgment against the defendant, and then obtained a Writ of Execution and seized some of defendant’s property.

Defendant successfully quashed the summons, and then sued for Abuse of Process. It certainly sounds like abuse of process, doesn’t it? If the allegations were true, plaintiff had lied his way through the process to obtain an advantage, and seized the property knowing that he had no right to do so.

But the court concluded that the litigation privilege under Civil Code § 47 is absolute, and so long as the processes were being used for their intended purposes, even if perjury were involved, they were not actionable.

The circumstances are rare where the process used is not the proper process for that purpose.

The post Think Hard Before Filing a Malicious Prosecution Action appeared first on California SLAPP Law.

I am often asked to pursue SLAPPback actions, and find that the requests usually arise from a misunderstanding of the basis for such an action. I will explain here the basics of a SLAPPback action and why, at least in my practice, the circumstances that would justify a SLAPPback seldom arise.

What is a SLAPPback Action?

SLAPPback actions are created and governed by Code of Civil Procedure section 425.18. Section 425.18(b)(1) defines SLAPPback:

“SLAPPback” means any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.

That simple definition should clear up much of the confusion. A SLAPPback is simply a malicious prosecution action brought by a defendant who successfully brought an anti-SLAPP motion that resulted in a dismissal of the original action. It could also take the form of an abuse of process action, but that will seldom be the case, as I will explain below.

Note also that a SLAPPback is an entirely new lawsuit. The defendant, having successfully extracted himself from legal proceedings by way of a successful anti-SLAPP motion, jumps right back in by filing a malicious prosecution action. I sometimes get requests to bring a “SLAPPback motion,” but as you can see there is no such beast.

Why are SLAPPback actions so rare?

Conceptually, every successful anti-SLAPP motion could be followed by a SLAPPback action. By definition, if an action is dismissed on the basis of an anti-SLAPP motion, then it had no merit. To survive an anti-SLAPP motion the plaintiff need only show that his claim has “minimal merit.” If it could not even meet that standard, then it almost certainly was brought without probable cause; one of the necessary elements of a malicious prosecution action. 

But what are the damages?

The reason SLAPPback actions are so rare, in my experience, is the lack of viable damages. Again, a SLAPPback is simply a malicious prosecution action, and the damages recoverable for malicious prosecution are explained by the California Supreme Court in Bertero v. Nat’l Gen. Corp., 13 Cal. 3d 43 (citing all the way back to 1884!):

The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings. In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action including reasonable attorney’s fees (Stevens v. Chisholm (1919) 179 Cal. 557, 564; Eastin v. Bank of Stockton (1884) 66 Cal. 123, 125-126), compensation for injury to his reputation or impairment of his social and business standing in the community (Ray Wong v. Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18; Lerner v. Glickfeld (1960) 187 Cal.App.2d 514, 526), and for mental or emotional distress (Singleton v. Perry (1955) 45 Cal.2d 489, 495). … Civil Code section 3294 sanctions the recovery of exemplary damages in noncontract cases ‘. . . where the defendant has been guilty of . . . malice, express or implied’. This has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required. (Wolfsen v. Hathaway (1948) 32 Cal.2d 632, 647.) The malice in fact, may be proved under section 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences).

To summarize, a malicious prosecution plaintiff can recover damages for: (1) the attorney fees incurred in defending the original action; (2) injury to reputation; (3) mental and emotional distress; and (4) punitive damages.

So let’s go through those four types of recoverable damages, and see if a SLAPPback makes economic sense.

Attorney fees

If the defendant’s anti-SLAPP motion was brought as the first responsive pleading, then he will already have recovered all of his attorney fees pursuant to that motion. If the court reduced those fees for some reason, a SLAPPback does not provide a second chance to recover them. The reasonable attorney fees recoverable for the anti-SLAPP motion has already been determined.

It is often the case that there will be some fees that are not recovered pursuant to the anti-SLAPP motion, since the anti-SLAPP statute limits the fees to those directly related to the anti-SLAPP motion. For example, the defendant might have prepared and filed an answer to the complaint, before filing the anti-SLAPP motion. Or perhaps the attorney had to attend a case management conference. But in my experience, the fees that cannot be recovered by way of the anti-SLAPP motion are nominal, and do not justify the time and expense of a new action.

And for the final nail in the coffin, the malicious prosecution action is still subject to the American Rule for attorney fees — that the parties bear their own attorney fees unless there is a contract or statute to the contrary. So the malicious prosecution plaintiff incurs unrecoverable attorney fees in an effort to recover the fees incurred in the underlying action. In a typical scenario, the fees incurred prosecuting the malicious prosecution claim with greatly eclipse any fees incurred in the underlying action, since it was disposed of by an anti-SLAPP motion early in the action.

I was recently retained to represent a client who had unsuccessfully sued for wrongful termination, and was then sued for malicious prosecution. The plaintiff was seeking to recover approximately $300,000 he had incurred defending the underlying action. I prevailed on an anti-SLAPP motion (naturellement) on the simple basis that my client had not acted without probable cause. Some of the jurors found in his favor, just not enough. So now the plaintiff was on the hook for however much he paid his own attorney, plus the fees my client incurred for the anti-SLAPP motion. As a great philosopher once said, “You’ve got to know when to fold them . . .”

Injury to reputation

Although Bertero lists injury to reputation as a recoverable damage, and other cases do as well, there is almost no case authority on exactly what that means and how it would be calculated. The most cited case, Sagonowsky v. More (1998) 64 Cal.App.4th 122, states only that such damages are recoverable “because groundless allegations made in pleadings are public records.”

But statements made in court documents are absolutely privileged. If a malicious prosecution plaintiff sues for what was stated in the court documents, claiming that caused injury to his reputation, that would be subject to an anti-SLAPP motion. From the paucity of legal authority on this point, it appears that damages for injury to reputation is simply an extension of emotional distress damages. In other words, a malicious prosecution plaintiff can’t seek damages because the complaint alleges that he is “a stuck-up, half-witted, scruffy-looking nerf herder,” but he can seek damages generally because he knows that groundless allegations were made against him in pleadings that are public records.

Emotional distress

In my estimation, this is the only “real” damage that can be sought by a SLAPPback. No one wants to be sued, and the process can be extremely stressful. So in a traditional malicious prosecution action, as opposed to a SLAPPback, the defendant may well indeed have suffered emotional distress. The case may have gone on for years, with the defendant having to endure responding to discovery, sitting through depositions, and being grilled on the witness stand, all the while fearful that the jury might award significant damages.

But how much emotional distress does a defendant suffer when the case is disposed of with a single motion, often within 30 days of the complaint being served?

Here is the exercise I employ when one of my clients wants to bring a SLAPPback after we prevail on the anti-SLAPP motion:

OK. You recovered all of your attorney fees, but you can recover for emotional distress. Did you suffer emotional distress as a result of being sued?

Hell yes! I could not believe I was being sued for posting an honest review on Yelp.

All right. So picture you are on the witness stand. You’ve just testified that you were really, really, really upset that you were sued. You couldn’t sleep at night, worrying about the lawsuit. Now comes the cross-examination.

Ms. Jones, you testified that you were really, really, really upset that my client sued you for what you posted on Yelp. Did you seek help from a mental health professional?

No.

Did you miss any work?

No.

Did you suffer any physical manifestations of the emotional distress?

I had trouble sleeping.

How long after you were served with the complaint, did you hire Mr. Morris?

It took about two weeks.

And I don’t want you to tell me about your conversations, because that is privileged, but at some point you learned about anti-SLAPP motions, correct?

Yes. He was wonderful. What a guy.

And how long was it, after you hired Mr. Morris, that you brought the anti-SLAPP motion?

He filed it the following week.

Did you understand that the anti-SLAPP motion sought to strike the complaint?

Yes.

And was the complaint stricken?

Yes.

And when did that occur?

About 30 days after I hired Mr. Morris.

So you received the complaint, hired Mr. Morris two weeks later, it is decided to bring a motion that will result in the complaint being stricken if successful, he files the motion a week after that, and the motion was granted about 30 days later, correct?

Yes.

So you knew after just two weeks that there was a motion that could dispose of the complaint, and that result was achieve about five weeks later, correct?

Yes.

And you want these jurors to award money to you for emotional distress, for the approximately two, or perhaps as much as seven weeks, you worried about this complaint, correct?

Well, yes. I was really, really, really upset.

Be aware that any emotional distress claim opens the door for intrusive discovery. After all, you are seeking money from the defendant for the way he, she, or it made you feel, so it is fair and appropriate that defendant be able to explore whether there may have been other stressors in your life that contributed to your stress.

Punitive damages

Punitive damages are indeed recoverable in a malicious prosecution action. Such damages are designed to punish defendants for their bad conduct, to deter them and others from engaging in such activity in the future.

But punitive damages are not unmoored from reality. The law requires them to be proportionate to the damages suffered. There is no hard and fast measure of what punitive damages can be in proportion to the compensatory damages, but one naturally dictates the other.

If the jury awards only a small amount for the attorney fees and emotional distress damages, that indicates that they don’t think what the defendant did was particularly evil. Those same jurors are not then going to turn around and award significant punitive damages in order to discourage that behavior in the future. They just did not see the behavior as a big deal.

Conversely, if the jurors were offended enough that they awarded $500,000 in compensatory damages, that does not mean that punitive damages will follow. Punitive damages are judged by a different standard. The jury must find by “clear and convincing” evidence that the defendant acted with “malice, oppression, or fraud.”

Just because an action was dismissed by way of an anti-SLAPP motion, that does not mean that the plaintiff acted with malice. The litigation privilege provides a perfect example. Self-represented plaintiffs sue for defamation for things said in court, not realizing that statements in court are absolutely privileged. Such a complaint is properly stricken, but should punitive damages be awarded against a party who did not know the law? The plaintiff was just ignorant, not malicious (although malice can sometimes be shown by a defendant’s flagrant failure to check the facts).

My own policy (other attorneys may differ) is that I don’t consider the potential punitive damages when determining the viability of a case. If the actual and assumed damages are insufficient to warrant moving forward, then punitive damages likely won’t be significant, if awarded at all.

Jurors are unlikely to understand or appreciate the nuances of defamation law and an anti-SLAPP motion.

To make a SLAPPback worth pursuing, you must get the jurors so emotionally invested and worked up that they want to award you damages. That is a challenging task in the context of trying to explain the nuances of protected speech.

Let’s again use the example of a Yelp review. The defendant posted a negative review of a business, and the plaintiff business owner was so upset by the review that he sued for defamation. But the court ultimately decided that the review was a matter of opinion, and granted the defendant’s anti-SLAPP motion on that basis.

The defendant then becomes the plaintiff, and sues the business for malicious prosecution, claiming he was upset about being sued for his Yelp review. He provides his heartfelt testimony to the jury, explaining how he just wanted to tell his tale of a bad experience with this contractor, who painted his living room with Benjamin Moore Alabaster, when he CLEARLY asked for Benjamin Moore Swiss Coffee. No one should ever suffer that horrific fate. He was just trying to protect the public.

For his part, the defendant contractor testifies that he has been a contractor for 23 years, and has never had a single complaint. The customer had never asked for Alabaster paint, and in fact had gone on and on about how good the paint looked when the job was done. He only made up this story about the wrong paint color to avoid paying the final invoice, and threatened to post a negative Yelp review if the contractor didn’t agree to waive the final payment. He doesn’t understand why the customer would do this, and why the judge decided that the lies were protected. He even cries a little in front of the jury.

You tell me who wins.

It’s even tougher in the context of a absolute privilege. My very first anti-SLAPP motion ever involved a defendant who had called a city council member “corrupt” during  a council meeting. The councilmember took umbrage with the remark, and sued for defamation. But pursuant to Civil Code section 47 and the anti-SLAPP statute, statements made during a city council meeting are absolutely privileged. There was no evidence the councilmember could present that would overcome that absolute privilege, so my anti-SLAPP motion had to be granted.

But imagine if I had followed up with a SLAPPback. The jurors would all be sitting there thinking, “You want me to believe that you can say whatever you want about a councilmember, even if it is a lie, and they just have to take it? That doesn’t seem fair.” The judge would of course explain the law, but there is no guarantee that the jurors would understand.

Why can’t a SLAPPback be based on Abuse of Process?

As set forth at the beginning of this article, a SLAPPback can be based on Abuse of Process, but such a claim almost always fails. When I am asked to review a complaint containing a claim for Abuse of Process, I get all warm inside, because that always makes the complaint a SLAPP, at least as to that claim. The reason is that the “process” used by the plaintiff in the underlying action, no matter how knowingly false and evil, will not amount to abuse of process if the process was used for its intended purpose. An abuse of process claim will almost always be barred by the litigation privilege.

The case of Rusheen v. Cohen, 37 Cal. 4th 1048, illustrates the point. In that case, it was alleged that Cohen and his attorney had filed declarations, falsely attesting to service of the complaint, in order to take a default judgment against Rusheen. Using the allegedly fraudulently obtained default judgment, Cohen then obtained a writ of execution in order to seize Rusheen’s property. Rusheen sued for Abuse of Process, and Cohen responded with an anti-SLAPP motion, which was granted by the trial court, and upheld by the California Supreme Court. The court held that even if everything Rusheen alleged was true, the acts still arose from litigation and were therefore absolutely privileged under the litigation privilege.

If the alleged egregious facts of Rusheen v. Cohen would not support a claim for Abuse of Process, you’ll be hard pressed to find facts that would. But Abuse of Process claims cannot be pronounced dead just yet. The case of Brown v. Kennard, 94 Cal.App.4th 40 catalogs a few decisions where Abuse of Process claims survived the litigation privilege. Compare them to your facts to see if your case might support such a claim.

Conclusion

Do not take from any of this that a SLAPPback is never viable. Not every anti-SLAPP motion is decided in seven weeks. If there were significant attorney fees unrelated to the anti-SLAPP motion that you want to recover, or some special circumstance that would support the award of emotional distress damages, then go for it. Just make a reasonable assessment.

The post What is a SLAPPback Action? appeared first on California SLAPP Law.

Wow. I was in court this morning on a demurrer (which I won, naturellement), but the court’s ruling on an anti-SLAPP ruling in the same case hit me vicariously like a 100 mile an hour fast ball to my nether region. As the defense attorney painfully learned, every anti-SLAPP motion is a potential procedural minefield, and the hidden mines only increase in number when an attorney decides to try an untested procedure.

The defamation case in question involves three defendants. I represent Defendants 1 and 2, a husband and wife, and the third defendant (Defendant 3) is represented by another firm.

The complaint is ridiculous, but there was no basis upon which to bring an anti-SLAPP motion as to my clients. There was a strong basis, however, as to Defendant 3. Counsel for Defendant 3 wisely filed an anti-SLAPP motion, and the plaintiffs also quite wisely read the writing on the wall, and dismissed the action as to that Defendant.

So we have a situation that often arises with anti-SLAPP motions. The complaint is dismissed before the motion is decided. But case law is perfectly clear that even though the complaint is dismissed, the defendant is still entitled to attorney fees for the motion IF the court decides the complaint was indeed a SLAPP.

But how is that handled? The moment a party bringing an anti-SLAPP motion is dismissed from the case, the anti-SLAPP motion becomes “moot.” After all, an anti-SLAPP motion is a motion to strike. If the case is dismissed, there is nothing to strike. Case law is very clear that upon dismissal, a court no longer has jurisdiction over the case as to a determination of the merits. The court can only engage in housekeeping matters that necessarily follow a dismissal. For example, a defendant is entitled to recover litigation costs, so the court can award those costs, and if challenged, could rule on a motion to tax costs.

The question of whether attorney fees were recoverable on an anti-SLAPP motion where the case was dismissed before the hearing, and whether the court retained jurisdiction to hear such a motion, was not initially clear, and was answered through evolving case law. The courts eventually concluded that even though the case is dismissed, in order to honor the purpose behind the anti-SLAPP statute, a court retains jurisdiction to award attorney fees even after a dismissal.

The raison d’être for the anti-SLAPP statute is to discourage plaintiffs from using litigation as a means to silence protected speech. If a plaintiff could file an harassing lawsuit in order to force defendant to incur the time and expense of defending against that action, but then escape the consequences of filing the harassing action by simply dismissing it prior to the anti-SLAPP motion, the anti-SLAPP statute would be rather pointless.

So here is how I handle the situation.

I spent many hours preparing a persuasive anti-SLAPP motion. But upon reading my motion, counsel for plaintiff slaps their forehead, mutters “what was I thinking?” and immediately dismisses the case. In most instances, they think they have dodged the attorney fee motion bullet by dismissing before the hearing on the motion, and are later shocked to learn that is not how it works.

Thankfully, the time spent on the anti-SLAPP motion was not wasted. It already resulted in a dismissal of the action. Additionally, the arguments set forth in the motion will now be used to argue for attorney fees. You see, just because the plaintiff dismissed the action in the face of my anti-SLAPP motion, it does not necessarily follow that the complaint was a SLAPP. For example, the plaintiff may have simply decided to drop the action because it was getting too expensive to prosecute. His attorney told him it would cost $20,000 to oppose the motion, and he just could not afford it, so he dismissed.

I’m only entitled to recover the attorney fees incurred in bringing the anti-SLAPP motion if the complaint was indeed a SLAPP, and that has yet to be decided. But how can the court make that determination if the anti-SLAPP motion is now moot and it has no jurisdiction to make that determination? It does so in conjunction with the motion for attorney fees.

I prepare a motion for attorney fees and I weave in the great arguments from my anti-SLAPP motion to convince the court that the complaint was indeed a SLAPP.

The combination of the two arguments is very synergistic, because with a motion for attorney fees I am also arguing and attesting that all of the time I spent on the motion was necessary and appropriate. So, for example, I can argue that the statements made at a City Council meeting are privileged, and simultaneously explain that the amount of time spent on the motion was necessary because it presented the novel issues of whether that privilege is impacted by the defendant’s knowledge that City Council meetings are broadcast on a public access channel, and whether that broadcast is still a “place open to the public.”

In ruling on my motion for attorney fees, the court also considers whether the anti-SLAPP motion was appropriate, and if it agrees my presentation satisfied the two prongs of the anti-SLAPP analysis (it always has done so in the context of a motion for attorney fees), it then decides on the amount of the attorney fees to be awarded.

Interestingly, case law holds that in determining whether my client was the prevailing party and hence entitled to attorney fees, the court can consider who best achieved their litigation goal. The defendant enters the analysis with a preset bias in their favor, because they achieved the intended goal of disposing of the action, and the dismissal by plaintiff “is strong evidence of the merits of the motion.”

Another option.

Some attorneys include the request for attorney fees in the anti-SLAPP motion. This procedure can be especially advantageous in courts with slow dockets. If it takes three months to have an anti-SLAPP motion heard, and it doesn’t contain a request for attorney fees, then it will take another three months to have the motion for attorney fees heard.

Despite the advantage of having both motions decided at the same time, there are a couple of reasons that I do not proceed in that manner. First, I am typically dealing with sophisticated anti-SLAPP motions, and need every line of the 15 pages available to me to flesh out my arguments. I’d be giving up precious space if I included the request for attorney fees.

Additionally, my fees would largely be projections. Since plaintiff has to have the opportunity to respond to the request, the fee request must be contained in the opening brief. At that point, I have no idea what the opposition will include, and how much time it will take to reply to that opposition. Plaintiff has the same 15 page limit, but there is no limit to the length or number of declarations and exhibits. On a number of occasions, the reply has taken far longer to prepare than the original motion. If I included the attorney fee request in the original motion, the best I could argue is that “I anticipate it will take an additional seven hours to review the opposition to the motion and prepare a reply.” That estimate could end up being wildly understated.

But more relevant to this article, a combined motion can create even more confusion if the plaintiff elects to dismiss the case. Theoretically, if the defendant brings a combined motion and the plaintiff dismisses the case, the court could still hear the motion, only as to the attorney fees. Indeed, that would be amazingly efficient, since the entire argument about why the complaint was a SLAPP is already contained therein. However, I have never seen it work this way, for the following reasons.

Here is a little “inside baseball.” Most judges have research attorneys who do an initial analysis of any pending motions. For every type of motion, there is a worksheet, and the very first section of that worksheet relates to the specific procedural requirements for that motion. Why read a motion if it doesn’t comply with procedural rules? For example, a demurrer requires that the defense counsel meet and confer with plaintiff’s counsel to discuss whether the demurrer can be avoided by an amendment, and defense counsel must attach a declaration to the demurrer attesting that he or she complied with this requirement. On the worksheet for demurrers, the procedural section will list these requirements. The research clerk first checks to see if a declaration is attached. If not, he or she dances a little jig, because they don’t have to work up the motion, due to the fatal procedural error.

And so it is with an anti-SLAPP motion. The procedural section will ask, “Has the complaint or the challenged causes of action been dismissed?” If so, the jig is again danced, and the motion is taken off calendar. The motion for attorney fees is never seen. I suppose the procedural section could me amended to ask, “Has the complaint or the challenged causes of action been dismissed? If yes, does the motion include a request for attorney fees?” But why set up a scenario for extra work when the matter can just be kicked down the road?

So what did the attorney for Defendant 3 do wrong?

Counsel for Defendant 3 decided to go a different route. There happened to be a Case Management Conference scheduled shortly after plaintiff had dismissed Defendant 3, but before the hearing on the anti-SLAPP motion.

At the Case Management Conference, where case scheduling is discussed, Plaintiff’s counsel explained that Defendant 3 had been dismissed, and that the Judge should therefore take the pending anti-SLAPP motion off calendar. But counsel for Defendant 3 convinced the Judge to go ahead and keep the motion on calendar, since a decision on the motion was necessary to determine entitlement to attorney fees.

I knew at the time that would not work. This was not a combined motion. Setting aside that the Judge had no jurisdiction to rule on the motion after the dismissal, no judge is going to take hours to review an anti-SLAPP motion just to issue an advisory ruling so a party will know whether to then pursue a motion for attorney fees. I couldn’t say anything during the Case Management Conference (colloques between counsel during a hearing is frowned upon), but I later politely explained to counsel for Defendant 3 that I have never seen the situation handled in this manner, and how I suspected that come the day of the hearing, the Judge would conclude that he could not rule on the motion. Despite my warnings, counsel elected to stay the course.

Today was that day. Not only did the Judge rule that he had no jurisdiction to decide the anti-SLAPP motion, he ruled that Defendant 3 could no longer seek attorney fees.

Why? Rule of Court 3.1702 provides:

A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court-including attorney’s fees on an appeal before the rendition of judgment in the trial court-must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case . . .

The time for filing a notice of appeal is 60 days, so the motion for attorney fees must be brought within 60 days of the judgment, and where the plaintiff voluntarily dismisses the action, that dismissal is treated as the final judgment for purposes of Rule 3.1702. It had been over five months since Plaintiff dismissed Defendant 3. Because counsel elected to wait for the ruling on the anti-SLAPP motion, he was far past the 60 day deadline to file the motion for attorney fees.

Rule 3.1702 does offer some wiggle room, stating that “for good cause, the trial judge may extend the time for filing a motion for attorney’s fees in the absence of a stipulation or for a longer period than allowed by stipulation.” Counsel for Defendant 3 was left to beg and plead for the Judge to exercise that discretion and allow for a late attorney fee motion. The Judge denied the request, basically applying an equitable standard.

Code of Civil Procedure 473 allows for a motion to vacate an order or judgment on the basis of “mistake, inadvertence, surprise or excusable neglect.” The Judge applied that standard (even though Rule 3.1702 does not mention it) and saw no basis to grant any relief.

I have no idea how much Defendant 3 paid to the attorney to bring the anti-SLAPP motion, but it is going to be a painful discussion when counsel explains that there is now no way to recover those fees.

But it could be worse. Counsel can make things right be waiving or refunding the cost of the anti-SLAPP motion. Far worse is when I see an attorney lose an anti-SLAPP motion because of some procedural mistake. In that situation the client is not only deprived of recovering their fees, they are forced to continue defending against an action that should have been dismissed. Here, counsel did successfully extract their client from the action, even if they did drop the ball at the goal line.

Judges hate anti-SLAPP motions, because they are so time consuming to review and decide. In fact, some judges now limit the number of such motions that they will consider on a given calendar day. That’s why the hearings are often months in the future. The calendaring system will only allow for two anti-SLAPP motions on a given day, and if those two slots are taken, the next incoming motion is rolled over to the next available date, and so on and so on. The record to date for one of my motions was seven months. I dutifully prepared the anti-SLAPP motion within 60 days of service of the complaint, and when I went to the court website the reserve the hearing date, the first available date was seven months in the future. That’s bad enough, but while we were waiting for the seven months to pass, there was a scheduled Case Management Conference. The purpose of a Case Management Conference is to make sure the case is moving along. The judge makes sure all the named defendants have been served, and often asks about how discovery is proceeding. Of course, an anti-SLAPP motion stays all discovery, so no discovery had occurred in the action. Incredibly, the Judge had the gall to cop an attitude, asking how it is possible that the case was over seven months old but no one had yet conducted any discovery. Through gritted teeth I explained no discovery could occur because of his ridiculous law and motion calendar. I may not have used the word ridiculous.

Keeping in mind that judges hate anti-SLAPP motions, never afford them an opportunity to avoid the process on some procedural basis.

The post Watch Out for this Fee Motion Timing Trap appeared first on California SLAPP Law.

Here are the facts, as set forth in the Court’s ruling, with additional information from news sources:

Michael Kassan is the former CEO and Chairman of MediaLink. According to its website, MediaLink is “the media & marketing industry’s most trusted and connected advisor, . . . specializing in defining the optimal path forward.”

MediaLink is a United Talent Agency (“UTA”) company, and apparently there was some acrimony between Kassan and UTA. Kassan sued UTA lawyer Bryan J. Freedman in Los Angeles Superior Court for slander and libel stemming from a statement the attorney made to Deadline (a news publication) in which he called Kassan a “pathological liar.” Freedman responded with an anti-SLAPP motion.

In analyzing whether a complaint is a SLAPP, context is everything.

“Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.) “Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of . . . contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” (Ibid.) “In drawing the distinction between opinion and fact, California courts apply the totality of the circumstances test to determine whether an allegedly defamatory statement is actionable.” (Ibid.)

In applying the totality of the circumstances test, “editorial context is regarded by the courts as a powerful element in construing as opinion what might otherwise be deemed fact.” (Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 693.) “[T]he publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader.” (Id. at p. 688.) “Part of the totality of the circumstances used in evaluating the language in question is whether the statements were made by participants in an adversarial setting.” (Ferlauto, supra, 74 Cal.App.4th at p. 1401.) “Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.” (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.)

Here, the statement that Kassan was a “pathological liar” was made in the context of a highly publicized, contentious dispute between Kassan and UTA involving allegations in both directions. The Deadline article itself described the conflict as a “dogfight,” “messy battle,” and “great drama” involving the “embarrassing disintegration” of a $125 million deal. (Def.’s Ex. A.) Kassan’s own representatives “shot back,” referring to UTA as “[d]esperate people” making false and “absurd” accusations in “a pathetic attempt to tarnish his reputation.” Kassan’s representatives further accused UTA of filing a “frivolous” lawsuit to “mislead people” about Kassan. The article describes Kassan as “controversial” and “[n]o stranger to corporate intrigue.”

This context is critical to the totality of the circumstances test because it shows that the statement was made in an adversarial setting and heated dispute wherein the participants were expected to use epithets and hyperbole which an average reader would not take as fact. The article shows that Kassan himself accuses UTA of lying. Courts have found that accusations similar to calling someone a “liar” were nonactionable. (See Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 389 [“his statements that Franklin ‘stole’ copyrighted material, ‘compromised’ DDi, and ‘plagiarized’ data appear in context as rhetorical hyperbole”]; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 279 [“Assuming that Scherer called plaintiff a thief and a liar, that statement was not, as a matter of law, defamatory under the undisputed circumstances here”].)

Making hyperbolic language actionable.

Here, Freedman’s use of the word “fact” was less dispositive than the substance and context of the statements themselves. (See Herring Networks, Inc. v. Maddow (9th Cir. 2021) 8 F.4th 1148, 1153-60 [TV personality’s statement that a certain news outlet “really literally is paid Russian propaganda” was hyperbole even if it was arguably provable whether the outlet received money from Russia].) Freedman’s follow-up comment was a continuation of the ongoing dispute between the parties. The Court held that it did not transform the characterization of Kassan as a pathological liar from an expression of opinion into one of fact.

Even an opinion can still be actionable.

Does Civil Code § 47 apply?

Civil Code section 47(b) makes privileged a publication made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.” (Civ. Code, § 47(b).) “To be privileged a statement must (1) be made in a judicial proceeding, (2) by litigants or other authorized participants, (3) aim to achieve the litigation’s objects, and (4) have some logical connection or relation to the proceeding.” (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134.)

The statement about Kassan’s character is arguably not a publication made in the course of a judicial proceeding nor logically connected to one, and arguably does not achieve the litigation’s objectives. As with above, because reasonable minds may differ as to the application of the privilege, it does not preclude the defamation claims as a matter of law.

In sum, while the privileges under Civil Code section 47 do not preclude the defamation claims as a matter of law, the defamation claims fail as a matter of law because they are based on a nonactionable statement of opinion. Because the complaint targets protected activity, and Plaintiff has failed to demonstrate a probability of success, the claims must be stricken under Code of Civil Procedure section 425.16.

Free Speech can be very free.

The post Context is Everything in Determining if a Statement is Defamatory appeared first on 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.

The post SLAPP035 – Understanding the Public Interest Requirement appeared first on California SLAPP Law.

Does an anti-SLAPP appeal stay the entire action?

Seemingly, this question has been clearly answered ever since the Supreme Court ruling in Varian Medical Systems v. Delfino, way back in 2005, but I still see a lot of confusion on the topic.

The truth is that an appeal from a ruling on an anti-SLAPP motion (granting or denying) does as a general rule stay the action, but there is some nuance. Certain activities can still continue, and the stay may not apply to all claims and parties.

This week, we were surprised that the opposing counsel did not file any opposition to our motion for attorney fees, following our successful anti-SLAPP motion. I was hopeful that the lack of a response was intentional, based on the modest fee request. But I suspected that it had something to do with the appeal he had filed. Upon receiving my Notice of Ruling, granting the requested attorney fees, he called to say that he was shocked that I would go forward with the motion, knowing an appeal was pending. But as I explained to him, an appeal does not stay a motion for attorney fees.

An appeal also does not stay collection of those attorney fees.

In another case, we prevailed on an anti-SLAPP motion against an attorney, who was representing herself in a defamation action against my client. After the victory, as is my practice, I asked her if she wanted to pay the current attorney fees in order to avoid the extra expense of the motion for attorney fees.**

She chortled, “You can’t bring a motion for attorney fees, because I filed a notice of appeal regarding the ruling on the motion.”

After I prevailed on my motion for attorney fees, as is my practice, I called counsel to ask if she wanted to pay the (now greater) fees in order to avoid the extra fees for my time spent on collection, and the embarrassment of having her wages garnished at her law firm. (Yes, unlike typical collection efforts, the time spent on collecting attorney fees following an anti-SLAPP motion is recoverable.)

She chortled (what can I say? She’s a chortling fool), “You can’t seek to collect those attorney fees while an appeal is pending.”

Quick sidebar: This is a common misunderstanding, because it is true that the collection of “routine” fees and costs is stayed just by filing an appeal. No appeal bond is required. See Chapala Mgmt. Corp. v. Stanton, 186 Cal.App.4th 1532, 1546 (2010). But cases like Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1434 (2001) have held that attorney fees awarded following an anti-SLAPP motion are more akin to sanctions, and collection is not stayed pending appeal. To stop collection, an appeal bond must be posted.

We garnished the attorney’s wages and received 25% of each of her paychecks while we awaited a ruling on the appeal. We defeated her appeal, and this time she took us up on our offer for her to immediately pay the remaining balance plus the additional fees incurred to oppose the appeal, thereby saving herself the cost of another attorney fee motion and continued garnishment.

Allow me to take you through the Varian Medical Systems decision, because it lays out a good summary of the historical background on this point, and explains what is stayed pending appeal. These are the facts as summarized by the Supreme Court.

Appeals from Anti-SLAPP motions.

Defendants and appellants Michelangelo Delfino and Mary Day were former employees of Varian Medical Systems (“Varian”). Varian fired Delfino for allegedly harassing certain coworkers. Two months later, Day resigned in sympathy. (I guess it took awhile for the sympathy to kick in.)

After leaving Varian, Delfino and Day allegedly began posting numerous derogatory messages about Varian and other employees of Varian (“plaintiffs”) on the Internet. In response, plaintiffs filed an action against Delfino, alleging numerous federal and state causes of action.

Plaintiffs later filed a third amended complaint, alleging seven causes of action*** predicated on defendants’ Internet postings about plaintiffs. Each defendant then filed, for the first time, a special motion to strike plaintiffs’ complaint. The trial court denied the motions, finding that: (1) the motions were untimely; (2) plaintiffs’ causes of action did “not arise from ‘any act … in furtherance of [the] right of petition or free speech under the United States or California Constitution in connection with a public issue;’ ” and (3) plaintiffs demonstrated a “probability they will prevail on their claims.” That’s about as complete a loss as you can get.

Defendants appealed. Delfino also filed an ex parte application with the trial court and a petition for writ of supersedeas with the Court of Appeal, seeking to stay further trial court proceedings pending resolution of the appeal pursuant to section 916. The trial court denied the application, and the Court of Appeal summarily denied the petition. It also denied Delfino’s petition for review.

After a trial, the jury found defendants liable for libel, invasion of privacy (appropriation of name), breach of contract, and conspiracy, and awarded plaintiffs a total of $425,000 in compensatory damages. The jury further found that defendants acted with malice, fraud, or oppression, and awarded certain plaintiffs $350,000 in punitive damages. The trial court also issued a permanent injunction against defendants.

Quick sidebar: Damages are great, but injunctive relief is often the primary goal of a defamation plaintiff. Victims of defamation call my office, wanting me to immediately seek an injunction to stop the defamation they are suffering. But prior to trial, such an injunction would be unconstitutional prior restraint. However, after a trial has determined that the statements in question are indeed defamatory, the court is then free to order the defendant not to repeat them, at risk of contempt proceedings if they do. See Balboa Island Village Inn, Inc. v. Lemen (2007).

Following the entry of judgment, the Court of Appeal dismissed as moot defendants’ appeal from the order denying their anti-SLAPP motions. Soon after, defendants appealed the judgment. The Court of Appeal modified the injunction but affirmed in all other respects. In doing so, the court disagreed with Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, and held “that Code of Civil Procedure section 916 did not automatically stay trial of the lawsuit … and that therefore the trial court did not lack jurisdiction to conduct the trial.”

According to the court, the denial of an anti-SLAPP motion is a matter separate from the merits of the lawsuit itself, and the subsequent trial had “no direct impact on the appeal from the order” denying the motion. Thus, the courts in this case had the discretion to grant a stay but did not have to do so. Acknowledging that courts may erroneously refuse to grant a stay despite a meritorious appeal, the Court of Appeal nonetheless concluded “that the benefit of preventing such rare mistakes by automatically staying all trials pending an appeal from an order denying an anti-SLAPP motion is outweighed by the danger of encouraging meritless anti-SLAPP motions and appeals as trial strategy to simply delay the trial of meritorious cases.”

The issue presented on appeal.

The California Supreme Court granted review solely on the issue of whether “an appeal from the denial of a special motion to strike under the anti-SLAPP statute (§ 425.16) effects an automatic stay of the trial court proceedings.”

Defendants argued that an appeal from the denial of an anti-SLAPP motion automatically stays all further trial court proceedings on the merits. Plaintiffs countered that such an appeal does not effect an automatic stay of any trial court proceedings on the merits because those proceedings would have no effect on the appeal. According to plaintiffs, courts have the discretion to stay further proceedings but are not compelled to do so.

Appeal standard.

Subject to certain exceptions not relevant here, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (§ 916, subd. (a).) The purpose of the automatic stay provision of section 916, subdivision (a), “is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The automatic stay prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)

Section 916, subdivision (a) states in full: “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”

To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings “upon the matters embraced” in or “affected” by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. “[W]hether a matter is ’embraced’ in or ‘affected’ by a judgment or order within the meaning of section 916 depends on whether post-judgment or post-order proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.” (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381.) “If so, the proceedings are stayed; if not, the proceedings are permitted.” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.)

The fact that the post-judgment or post-order proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to “enforce, vacate or modify the appealed judgment or order.” (Elsea, 4 Cal.App.4th at p. 629 [“The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending”].) Or the proceeding must substantially interfere with the appellate court’s ability to conduct the appeal. (See, e.g., Hollaway v. Scripps Memorial Hosp. (1980) 111 Cal.App.3d 719, 723-724 [holding that a pending appeal precludes the trial court from issuing an order relieving the parents as plaintiff’s guardians and appointing new counsel for plaintiff because the order interferes with the conduct of the appeal].)

A trial court proceeding also affects the effectiveness of an appeal if the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable. Thus, an appeal from the denial of a motion to vacate a spousal support order precludes the trial court from terminating its jurisdiction over spousal support because the termination of jurisdiction is irreconcilable with possible outcomes on appeal. (See In re Marriage of Varner (1998) 68 Cal.App.4th932, 937.) Similarly, an appeal from an order declaring that the plaintiffs take nothing by way of deficiency after a judicial foreclosure precludes the trial court from setting aside the foreclosure, because it would permit the plaintiffs to recover a deficiency judgment notwithstanding the appeal. (See Nelson v. Orosco (1981) 117 Cal.App.3d 73, 80.) And an appeal from a judgment on the pleadings precludes a trial court from granting leave to amend the complaint because affirmance of the judgment is irreconcilable with an order granting leave to amend. (Olson v. Superior Court (1969) 274 Cal.App.2d 311, 314.)

Finally, a proceeding affects the effectiveness of the appeal if the very purpose of the appeal is to avoid the need for that proceeding. In that situation, the proceeding itself is inherently inconsistent with a possible outcome on appeal and must therefore be stayed under section 916, subdivision (a). Thus, an appeal from the denial of a motion to compel arbitration automatically stays all further trial court proceedings on the merits. (See Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924, 925.)

Ancillary or collateral matters.

By contrast, an appeal does not stay proceedings on “ancillary or collateral matters which do not affect the judgment [or order] on appeal” even though the proceedings may render the appeal moot. (Betz, 16 Cal.App.4th at p. 938.) For example, the Legislature has established that certain proceedings, by law, are collateral to the merits of an appeal despite their potential effect on the appeal. Thus, the Legislature, through its enactments, has established that a motion for a new trial is collateral to the judgment and may proceed despite an appeal from the judgment. (See In re Estate of Waters (1919) 181 Cal. 584, 587 (Waters ); see also Neff v. Ernst (1957) 48 Cal.2d 628, 634.) And the language and history of the lis pendens statute establish that a proceeding to expunge a lis pendens is collateral to an appeal from the judgment in the underlying action. (See United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d377, 383-386.)

A post-judgment or post-order proceeding is also ancillary or collateral to the appeal despite its potential effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal. (See Horowitz, 159 Cal.App.3d at pp. 382-383 [finding no automatic stay because the result of the proceeding could have been achieved through other procedures regardless of the outcome of the appeal].) Thus, an appeal from the denial of a preliminary injunction does not stay further trial court proceedings on the merits. Because the injunction “amounts to a mere preliminary or interlocutory order to keep the subject of litigation in status quo pending the determination of the action on its merits” (Gray v. Bybee (1943) 60 Cal.App.2d 564, 571), the affirmance or reversal of its denial does not and cannot eliminate the need for additional proceedings on the merits. Section 916 therefore does not automatically stay such proceedings. (See MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623; Gray, at p. 571.) Likewise, an appeal from an order denying a motion to disqualify counsel does not automatically stay further trial court proceedings on the merits because such proceedings would occur regardless of whether the reviewing court affirms or reverses the order. (See Reed v. Superior Court (2001) 92 Cal.App.4th 448, 453-455.)

Answering the question.

With this legal background, we now turn to the issue of whether trial court proceedings on the merits following an appeal from the denial of an anti-SLAPP motion are embraced in or affected by that appeal.

We begin with the appealed order – the denial of the anti-SLAPP motion.

The Legislature enacted the anti-SLAPP statute to prevent and deter “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Because these meritless lawsuits seek to deplete “the defendant’s energy” and drain “his or her resources” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074), the Legislature sought ” ‘to prevent SLAPPs by ending them early and without great cost to the SLAPP target’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65). Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. (See Simmons, at p. 1073.) In doing so, section 425.16 seeks to limit the costs of defending against such a lawsuit. (See Equilon Enterprises, at p. 65 [noting that the “short time frame for anti-SLAPP filings and hearings” and the “stay of discovery” pending resolution of the motion evidences the Legislature’s intent to minimize the litigation costs of SLAPP targets].)

Because granting an anti-SLAPP motion results in the dismissal of a cause of action on the merits (see Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [holding that the court should grant an anti-SLAPP motion “if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim”]), an appellate reversal of an order denying such a motion may similarly result in a dismissal. Such an appellate outcome is irreconcilable with a judgment for the plaintiff on that cause of action following a proceeding on the merits. Moreover, such a proceeding is inherently inconsistent with the appeal because the appeal seeks to avoid that very proceeding. Indeed, “[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.” (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317; see also Fabre v. Walton (Mass.2002) 781 N.E.2d 780, 784 [“The protections afforded by the anti-SLAPP statute against the harassment and burdens of litigation are in large measure lost if the petitioner is forced to litigate a case to its conclusion before obtaining a definitive judgment through the appellate process”].) In this respect, an appeal from the denial of an anti-SLAPP motion is no different than an appeal from the denial of a motion to compel arbitration. (See Prudential-Bache, 201 Cal.App.3d at p. 925.)

The history of the anti-SLAPP statutes supports this conclusion that section 916 stays all further proceedings on the merits during the pendency of an appeal from the denial of an anti-SLAPP motion. In 1999, the Legislature enacted section 425.16, subdivision (j) – which makes “[a]n order granting or denying a special motion to strike … appealable under Section 904.1” – as part of Assembly Bill No. 1675 (1999-2000 Reg. Sess.). The Legislature found it necessary to enact subdivision (j) because, without the ability to appeal, a SLAPP “defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated.”

The Legislature reiterated this intent in 2003 when it enacted section 425.17– which exempted certain types of actions from the special motion to strike procedure established in section 425.16. (See Eu v. Chacon (1976) 16 Cal.3d 465, 470 [“Although a legislative expression of the intent of an earlier act is not binding upon the courts in their construction of the prior act, that expression may properly be considered together with other factors in arriving at the true legislative intent existing when the prior act was passed”].) In creating this exemption, the Legislature expressly made the denial of an anti-SLAPP motion based on the section 425.17 exemption not appealable. (§ 425.17, subd. (e).) The Legislature did so because “[e]xisting law provides that an order denying a special motion to strike is appealable to the court of appeal” and “that the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby.” Thus, the Legislature found it necessary to render the “stay and appeals provisions inapplicable when a trial court denies a special motion to strike on the grounds that a cause of action is exempt” under section 425.17. In doing so, the Legislature confirmed its intent that an appeal from the denial of an anti-SLAPP motion on non-section-425.17 grounds automatically stays further trial court proceedings on the merits. See Mattel, supra, 99 Cal.App.4th 1179, 1183 (an appeal from the denial of an anti-SLAPP motion automatically stays further trial court proceedings on the merits).

But what about causes of action not affected by the motion?

To be clear, an appeal from an anti-SLAPP motion does not always stay the action. Although rare, a situation can arise where there are remaining causes of action that are not affected by the motion. In such a case, the matter can proceed on those claims while the appeal proceeds, but in most instances the court will simply stay the matter so there need be only one trial.

Take as an example, a case where the plaintiff sues for defamation and conversion, and the claims are unrelated other than as to the parties. If an anti-SLAPP motion was granted or denied as to the defamation claim, theoretically the case could still proceed on the conversion claim while the appeal on the anti-SLAPP ruling was still pending. However, I’ve never seen that occur. Better to wait for a ruling on the appeal than to run the risk of having to conduct two trials.

I’ve seen some very frustrated plaintiffs’ attorneys in cases where there are multiple defendants, and their desire to continue litigating claims against other defendants is thwarted because one defendant (we’ll call him Sam) brought an anti-SLAPP motion and appeal. They feel like they should be permitted to, say, conduct discovery as to the other defendants, but even that would almost certainly implicate Sam. For example, if a deposition was taken of one of the other defendants, Sam would feel compelled to attend, or at least determine if it was necessary to attend. Sam would have to continue to incur the time and expense of monitoring all the goings on in the case, thereby defeating the limited involvement envisioned by the anti-SLAPP statute.

But note, that is not the same thing as, for example, a motion for attorney fees following a successful anti-SLAPP motion. That is merely a housekeeping matter that can proceed even while the appeal is pending.

Footnotes

** I don’t anticipate that the opposition will simply write me a blank check, but we can argue back and forth about the amount without having to do so in conjunction with a formal motion for attorney fees. Any rational attorney should realize that the court is going to award attorney fees, since they are required to do so. Even if opposing counsel assumes the court will reduce my requested fees (not a good assumption historically; I am almost always awarded all my requested fees because my requests are so low), at the very least, they should ask how much I am asking for and take it from there.

*** The causes of action included: (1) unfair competition; (2) false advertising ; (3) libel; (4) invasion of privacy — false light; (5) invasion of privacy — appropriation of name; (6) conspiracy; and (7) breach of contract.

The post Does an anti-SLAPP appeal stay the action? [Updated] appeared first on California SLAPP Law.

I grow so weary.

Every time I submit a motion for attorney fees following a successful anti-SLAPP motion, I am met with at least one of the following arguments, that ten minutes of research would reveal are nonsense. I am convinced that most of the attorneys know what they are saying is wrong, but with no ability to make a viable argument against the fees, they elect to make all the usual crazy arguments in the hope they can slip one or more past the judge.

Here are the top 6 bad arguments attorneys make in opposition to my motions for attorney fees.

1. He didn’t provide his invoices.

I have never attached my invoices to a fee motion. The law is exceedingly clear that an attorney need only attest to the time he spent on the matter. The declaration is under penalty of perjury, and that is sufficient to establish the time. Margolin v. Regional Planning Comm. (1982) 134 Cal.App.3d 999, 1007.

But I go far beyond that. With a few key strokes, our billing program spits out all the time entries that went into the actual invoices, and I just cut and paste that into my declaration, deleting any entries that are unrelated to the anti-SLAPP motion. I attest to this fact in my declaration, and no judge has ever had a problem with that approach.

So why not just attach the invoices, since they contain the same information? First, because entries relating to communications with the client might reveal my thought processes and violate the attorney-client privilege. Also, the invoices would reflect all the time I spent on the case that was not related to the anti-SLAPP motion, and includes other information about payments and such. The client may have limited funds, and I might have decided to handle the anti-SLAPP motion with a small initial retainer. That would create an additional argument, with the opposition proclaiming, “The defendant only paid $5,000 for the motion!” (As you’ll see in a moment, the amount the client paid is irrelevant to the analysis.)

2. He didn’t provide his fee agreement.

Attorney fees are awarded on what is called the “lodestar” method. The fee award is based on a reasonable number of hours spent on the anti-SLAPP motion, times a reasonable hourly rate based on the experience of the attorney.

The rate the attorney is charging the client is irrelevant to the analysis. An attorney might decide to charge the client a reduced hourly rate. Indeed, the attorney might be charging the client nothing, with the understanding that he or she will get paid by the other side if they prevail on the motion. In such cases, the courts actually allow a multiplier, where the attorney might get, say, 1.5 times the reasonable hourly rate, to compensate the attorney for the added risk of handling the case on the contingency arrangement.

Despite these realities, plaintiff’s counsel will often argue that I should not be awarded the requested hourly rate because there is no proof that the client was actually charged that amount. In one case, the attorney thought she was being clever and served a discovery request for the fee agreement and invoices. I served an objection because the information was irrelevant. In her opposition she made a big deal of my failure to produce the documents, but the judge agreed they were entirely irrelevant.

3. There is no proof the client has paid the fees.

This is related to the above. In opposing the motion for attorney fees, the plaintiff’s counsel will state, “He has provided no proof that the client paid the amounts indicated,” usually in bold type, sometimes underlined with all caps.

In one case, I won attorney fees against an attorney who was representing himself (there’s a saying about that). He appealed the ruling on the anti-SLAPP motion and the attorney fee motion, and incredibly argued on appeal that no evidence had been presented to show that the client had paid the fees, or (and this is the fun part) that should the fees be awarded, they would actually go to the client. He lost on all counts, and completely missed the entire point of attorney fees following an anti-SLAPP motion.

“[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. The fee-shifting provision was apparently intended to discourage such strategic lawsuits against public participation by imposing the litigation costs on the party seeking to ‘chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ The fee-shifting provision also encourages private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement. By its terms, Code of Civil Procedure section 425.16 permits the use of the so-called lodestar adjustment method under our long-standing precedents . . .” Ketchum v. Moses, 24 Cal.4th 1122, 1131 (2001)

Whether the client has paid the fees is irrelevant to the loadstar calculation. Indeed, the anti-SLAPP statute and the cases that have interpreted it specifically sought to protect the poor defendant who does not have the resources to fight a SLAPP.

4. He used block billing.

Although an attorney can simply attest to the time spent on the anti-SLAPP motion, enough detail must be provided for the judge to determine whether the time spent on individual tasks was reasonable.

True block billing does not provide sufficient detail. The entries might simply show:

1-4-2025 Research for anti-SLAPP motion; Drafting anti-SLAPP motion. 7.2 hours

1-5-2025 Research for anti-SLAPP motion; Drafting anti-SLAPP motion. 6.5 hours

1-6-2025 Research for anti-SLAPP motion; Drafting anti-SLAPP motion. 5.3 hours

That is block billing, and the judge has no ability to determine how much time was spent on research versus drafting, and whether those hours were reasonable. (But even there, the judge has seen the anti-SLAPP motion, and if the total hours seem reasonable for the motion, he or she might not be concerned by the block billing.)

But the thing is, while I might technically block bill, it does not prevent the judge from determining whether the time was reasonable. Here is a typical entry:

1-4-2025 Research for and drafting of anti-SLAPP motion, including searching for and analyzing cases discussing whether HOA meetings fall under subparts (e)(1) and (2), as an “official proceeding authorized by law” or (e)(3) and (4) as a matter of public interest; emailed latest draft to client for review. 4.9 hours.

Almost always, the attorneys will feel compelled to argue that is block billing, because the judge cannot possibly know how much time was spent on the motion, and how much time was spent on the email. They usually conclude the argument by saying the entire time should be denied due to that uncertainty.

The argument has never worked. The attorneys fail to realize that the judge does not need to know how much time was spent on the email. The only determination the judge needs to make is whether 4.9 hours was a reasonable amount of time for all the activities listed.

5. The complaint was an obvious SLAPP.

Usually because of a lack of understanding that the anti-SLAPP statute goes far beyond defamation claims, opposing counsel sometimes argues that the complaint is so obviously NOT a SLAPP, that I should sanctioned for even daring to bring such a frivolous motion. Then, naturellement, I prevail on the anti-SLAPP motion.

In opposition to the attorney fee motion, that same attorney will then argue that the complaint was so OBVIOUSLY a SLAPP, it should have taken me mere minutes to draft the anti-SLAPP motion.

The most extreme example of this was an attorney who sued his client for malicious prosecution, because the client had the gall to take him to fee arbitration. I responded with an anti-SLAPP motion, and the attorney could not contain his outrage that I would make such an argument. In that case, my motion was denied by the trial court, but I had the ruling reversed on appeal, meaning that the plaintiff attorney was now liable for all the fees for the original motion and the appeal. In opposition to my motion for attorney fees, after arguing both in the trial court and the Court of Appeal that my anti-SLAPP theory was utterly ridiculous, he stated that it was so obvious that I should have been able to handle the motion and appeal in just a few hours. The court rejected his argument.

6. His hourly rate is too high.

This would be a perfectly valid argument to make, if in fact my hourly rate was too high. According to the Laffey Matrix – a guide to the reasonable hourly rates for attorneys based on their experience and region – I could command an hourly rate in excess of $1,000 per hour based on my 35 years of experience. I charge far, far less than that amount.

But that doesn’t stop opposing counsel from making the argument. In one of the more humorous examples, plaintiff’s counsel hired an expert to opine on the reasonableness of my fees. He claimed that the maximum any attorney could charge, no matter how experienced, would be about $65 per hour less than what I was seeking. He based his opinion entirely on the location of my office. He claimed that attorneys in the bordering city could charge the higher amount, but that my city was mostly residential. Apparently attorney fees are based on the number of surrounding highrises. Total nonsense. Different regions have different rates – attorneys in the Los Angeles area charge more than attorneys in Tucson – but it doesn’t change from block to block.

The judge rejected the expert’s opinion, and noted that my hourly rate was “notably modest.” I always feel like the attorney and his expert lose all credibility when they make such a ridiculous claim. But I thank him for generating that quote from the judge, which I now include in all my fee applications.

And because some attorneys feel compelled to argue about everything, in one instance where I provided that “notably modest” quote from the judge, along with the name of the judge and the case number, opposing counsel (unsuccessfully) argued that the court should ignore the comment, because I had not provided the actual minute order where the statement was made.

The post Top 6 Worst Arguments Against Attorney Fees appeared first on California SLAPP Law.

We just today received an opinion from the Court of Appeal, affirming our victory on an anti-SLAPP motion. Nothing earth shattering there; that is a relatively common occurrence at Morris & Stone.

But what makes this opinion more exciting than most is that the Court adopted a concept we have been advancing for years, without much success. The problem has not been that past courts have necessarily disagreed with our position, it’s just that they do not need to rule on the specific point in order to find in our favor, so the point is not discussed.

A Special Motion to Strike is still a motion to strike; it’s just special.

With a standard motion to strike, the moving party is required to set forth in the notice of motion specifically what they are seeking to strike. If the movant seeks to strike an entire paragraph, that paragraph can be identified by number, but if they want to strike individual words or sentences, those must be quoted verbatim.

This just makes sense, under the concept of due process. If a defendant moves to strike portions of a complaint, the plaintiff can’t properly respond to the motion if those portions are not identified. Quite properly, therefore, a court won’t entertain a motion to strike that simply states, “the court should strike any improper allegations contained in the complaint.”

And yet, as obvious at that concept may appear, that is precisely what occurs in almost every special motion to strike I oppose. The notice of motion will state only that the defendant is seeking to strike the entire complaint, but in response to my opposition, defendant changes tactics and asks that any individual allegations that arise from protected conduct be stricken, without ever identifying those allegations.

The vast majority of the time, the request does not become an issue, because the court simply denies the motion. But in opposing the motion, in addition to my other arguments, I always argue that the court CANNOT decide to split the baby and strike individual allegations, because the defendant did not identify them in the notice of motion. It would be highly unfair, and a violation of due process, for the court to go through the complaint with a scalpel and cut out individual allegations, when I have been given no opportunity to respond. 

Yet, on a couple of occasions, the court has done just that. The judge accepts the defendant’s invitation to seek out and destroy allegations of protected conduct. Where I was the attorney who drafted the complaint, I don’t recall this ever happening. As you can imagine, I am hyper-vigilant as to possible SLAPP claims, so I make sure there are no such allegations in the complaint. But I am often brought in to defend against an anti-SLAPP motion as to a complaint prepared by other counsel. They sometimes throw in an allegation for background that is arguably protected conduct.

A quick sidebar: When drafting a complaint, be very careful with the use of “incorporation by reference.” Attorneys almost universally set forth all the background allegations, and then under each successive Cause of Action, they begin with a paragraph that incorporates all the prior allegations. By doing so, they are indicating that all of those allegations are a basis of liability for each Cause of Action.

So, for example, purely to set the scene as to when the conflict began and/or to show the animosity between the parties, the attorney will allege in paragraph 7 that “defendant called the police on March 11, 2023.” Now the attorney gets down to alleging the First Cause of Action for defamation, which is based on what the defendant said to the National Enquirer. But without any thought, the attorney begins with the boilerplate paragraph, incorporating all the prior allegations into the defamation claim. Whammo blammo, the attorney has just alleged that the defamation claim is based, at least in part, on that call to the police. The defendant can now bring an anti-SLAPP motion on that basis.

When the judge ignores the lack of due process and decides sua sponte to select and strike a paragraph or two, that really gums up the works. That means the motion was granted in part, arguably making defendant eligible for attorney fees. Plaintiff’s counsel will have to cross his or her fingers, and hope that they will be able to persuade the judge not to award attorney fees on the basis that the victory was purely illusory.

Back to today’s victory.

Our client is a contractor, who did a brilliant job reconstructing the defendant’s home after it was partially destroyed by wildfires. But the defendant saw conspiracies everywhere, and took to the internet to tell lie after lie about our client. For example, he came up with the crazy claim that our client used materials from other projects on his home.

The contractor sued for defamation, and when he was met with an anti-SLAPP motion, we were retained to oppose that motion.

The anti-SLAPP motion sought to strike the entire complaint under a number of theories, including that the statements were all entirely true.

Another quick sidebar: Attorneys! Stop bringing anti-SLAPP motions based on the defense that the statements are true! Truth is indeed a defense to defamation, but it is next to impossible to prevail on that basis in the anti-SLAPP context, since the plaintiff’s evidence must be taken as true. The court is not permitted to weigh the evidence. Here, the defendant claimed that our client had committed fraud against the insurance company, by billing for materials already paid for on other projects. The complaint alleged that this was a false statement, and the plaintiff attested that it was false in his declaration. How, then, could the defendant possibly establish as a matter of law that the statement was true?

The notice of motion did not seek to strike any individual allegations, but upon seeing our opposition, defense counsel switched gears, and argued instead that individual allegations should be stricken.

In that regard, there were no allegations of protected conduct, so defense counsel engaged in some shenanigans in an attempt to confuse the court. As required, the complaint alleged the individual allegations made by defendant that plaintiff alleged were defamatory. So, for example, defendant had published something like:

The fire damaged seven windows in the living room area of my home, which the contractor replaced with mismatched windows taken from other projects already paid for by other insurance claims. Plaintiffs submitted new claims to my insurer, which was a fraud.

In the complaint, plaintiffs quoted this passage and then alleged as follows:

This statement was false and defamatory because the windows were not replaced with mismatched windows, those windows were not taken from other projects, and had not been paid for by other insurance claims.

In order to claim that the statements were true, defense counsel broke them down into small fragments without any context, as follows:

Plaintiffs cannot prevail under the second prong of the anti-SLAPP analysis, because each of the statements were true:

– The fire did damage seven windows.

– The windows were in the living room area of the home.

– The windows were mismatched, because they were different than the kitchen windows.

– Plaintiffs did submit new claims to defendant’s insurer.

The sentence fragments as stated were essentially true, but clearly plaintiffs were not claiming that these fragments are what made the statements false and defamatory. The trial court saw through this nonsense, and denied the anti-SLAPP motion, and that denial was upheld on appeal. Most satisfyingly, the Court of Appeal finally addressed the improper effort to strike individual allegations, when no such request was made with the motion:

As an alternative to striking Plaintiffs’ whole complaint, Defendant asks us to strike individual portions of their complaint “identified throughout this brief and in the Table of Statements for which [the Court of Appeal] finds Plaintiffs failed to meet their burden.”

Defendant included a “Table of Statements” in his opening brief. His table lists 22 of the statements Plaintiffs attacked as libels.

Each of the 22 statements requires a different set of legal arguments, authorities, facts, and record citations. Defendant’s request in effect is for this court to develop, at his demand, 22 different, detailed, and individual legal and factual analyses. His briefing omits these 22 analyses.

Appellants may not enlist the court as their legal assistant to develop arguments they merely suggest. The duty to present legal analysis belongs to the parties. It would be unfair for one side to loft an undeveloped legal idea, to rely on the court to work it out, and to leave the opposing party with nothing concrete to tackle in the briefing. (Cf. Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 565 [failing to develop a reasoned argument supported by authority improperly forces the court to decode a bare assertion that the judgment, or part of it, is erroneous]; United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [to demonstrate error, an appellant must supply the court with cogent argument supported by analysis and record citations].)

Defendant’s lack of individualized argumentation on his 22 ideas forfeited these grounds for appeal.

I wish the Court of Appeal, in this published opinion, had given more detail. As worded, it appears that the primary objection is on procedural grounds; the court will not perform the task of determining the arguments. But the important language is there, with the Court stating that “It would be unfair for one side to loft an undeveloped legal idea, to rely on the court to work it out, and to leave the opposing party with nothing concrete to tackle in the briefing.” That quote will now be standard in all future briefs when I make my “all or nothing” argument.

August 7, 2024 Update:

The core of this action is the defendant’s manifest vitriol toward someone who performed a service for him — the contractor who repaired his home. An attorney, knowing that past behavior, should pause for a moment to consider whether they may have the same experience if they work for the client. The contractor was trashed online despite the great work he did. The attorney should have realized he might suffer the same fate, regardless of the quality of his work.

This action was file in January 2021, defendant brought the anti-SLAPP motion in April 2021, and we successfully opposed that motion in June 2021. But through the appeal process, and multiple concomitant extension requests, the matter was delayed for over three years. If delay was the goal, then defense counsel has done a superlative job. But I suspect his client is not pleased. So far he is zero for two. He lost on the anti-SLAPP motion and the appeal, no doubt at great expense. At some point the client had to have asked, “So four years and $60,000 later, you are telling me that we have accomplished nothing?!”

Not surprisingly, with the matter finally back on the docket and heading toward trial, defense counsel filed a motion, asking to be relieved as counsel, set to be heard tomorrow. In every fee agreement I have ever seen, the client agrees to sign a substitution of attorney if the attorney wishes to withdraw. When an attorney has to file a motion to be relieved, that usually means there is a dispute between the attorney and the client. Nothing is accomplished by forcing the attorney to bring a motion — absent some extenuating circumstance, the court isn’t going to force the attorney to continued to represent the client — so refusing to sign the substitution is almost always a “screw you.”

It appears counsel should have paused a little longer before deciding to represent the defendant.

But fortunately for us, he did, because it created a legal precedent we have already been able to cite probably half a dozen times in the four months since the opinion was published. Although there is nothing wrong with doing so, I keep waiting for the opposition to respond, “Morris is citing his own damn case!” To let them know I am doing just that, I even drop some not so subtle hints like, “Pointing to the BRILLIANT argument by plaintiff’s counsel, the Court of Appeal agreed that the portions to be stricken must be identified, and not left to the court to divine.” Thus far the clues seem to have gone over the heads of opposing counsel.

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