The newly published Hecimovich v. Encinal School Parent Teacher Organization (2012 No. A130852) 2012 DJDAR 1901 has all the right ingredients for a textbook SLAPP suit. First, it has seven causes of action all arising essentially from the same communicative conduct regarding an alleged problem volunteer coach of a 4th grade basketball team - communications connected to an issue of public interest under subdivision (e)(4) of section 425.16 of the Code of Civil Procedure. Second, the complaint alleged claims clearly subject to anti-SLAPP treatment, each sounding in defamation without pleading any specific communications or factual assertions that were defamatory. Third, the complaint was filed by a pro per attorney against the PTA and four of its members. Finally, the trial judge determined that the gravamen of plaintiff's complaint was defamation and went on to hold that defamation cannot be a protected activity within the anti-SLAPP analysis. and denied the anti-SLAPP motion on prong one without reaching the merits on prong two. Can you guess the result? In an insightful opinion penned by Justice Richman, the First District, Division Two Court of Appeal resoundingly REVERSED.
One point worth noting is that Justice Richman in another recent case, Grewal v. Jammu (2011) 191 Cal.App.4th 977, which also discussed in the Encinal case, pointed out how defendants were abusing the automatic appeal right set forth in subdivision (i) of section 425.16 and section 904.1(a)(13) of the Code of Civil Procedure and that the Legislature should consider repealing that provision, which was first enacted as urgency legislation in October 1999 as AB 1675. A number of cases have have noted the apparent increase in meritless SLAPP appeals by losing defendants but have not gone so far as to urge a wholesale repeal of that provision. For example, our High Court in Varian Medical Systems v. Delfino (2005) 180 Cal.4th 180, 195-196 noted the vast potential for losing SLAPP defendants to abuse the automatic appeal right by filing a meritless SLAPP appeal solely for purposes of delay as the immediate appeal right comes with a free automatic stay on all trial court proceedings "embraced within the appeal" under CCP 916 as Justice Richman rightly pointed out in Grewal. But the remedy suggested by our High Court in Varian, supra, was not a Legislative one. Rather, it was a judicial remedy. While, our High Court acknowledged the potential for losing SLAPP defendants to abuse the immediate appeal right and take advantage of the free stay, the High Court noted that the Legislature has already spoken commanding a broad construction of the statute and adding the immediate appeal right. They were presumably aware of the legal effect of the appeal depriving the trial court of subject matter jurisdiction of all issues "embraced within the appeal." Thus, the Court reasoned, we can only "encourage" Courts of Appeal to resolve appeals filed by losing SLAPP defendants/cross-defendants as expeditiously as possible. Pursuant to our High Court' admonition, I have seen many Courts of Appeal, on their own motion, put such appeals on the fast track for expedited briefing and disposition. Moreover, Courts of Appeal have more frequently been awarding SLAPP fees to prevailing plaintiffs where the trial court determines that the SLAPP motion and/or SLAPP appeal was frivolous or brought solely for delay under CCP 425.16(c), which incorporates the old CCP 128.5 standard by reference with respect to awards of attorney's fees to prevailing SLAPP plaintiffs. Carpenter v. Jack-in-Box (2007) 151 Cal.App.4th 454.
In one of the first anti-SLAPP cases to be appealed under the new amendment in October 1999, I represented a defendant on a SLAPP motion that was clearly based on a newspaper article that quoted my clients version of a pending lawsuit he had against his former employer and his employer was also quoted in that same article. My client sent the article to all of the company shareholders - no one else - they were all interested in the outcome of the dispute against the company in which they all hold a direct financial stake. The complaint alleged intentional interference with contract and prospective advantage and was plainly meritless as it had no evidentiary support. We originally filed a petition for writ or mandate from the trial court order denying the SLAPP motion. The petition was summarily denied without any reasons as most writ petitions are. But a few days later, the immediate appeal right set forth in AB 1675 passed in October 1999 as urgency legislation. We appealed, obtained complete reversal as to all seven causes of action, and obtained a substantial fee award as a result. Although I see Justice Richman's point about the increased potential for losing SLAPP defendants to abuse the appeal right in recent years, given safeguards in place, I believe that the immediate appeal right along with the mandatory fee provision are fundamental to the anti-SLAPP statute's stated purpose of "encouraging" citizens to participate in matters of public significance and to deter abuse of the judicial process with meritless SLAPP suits. One reason for the immediate appeal right is to prevent unnecessary trials and discovery procedures which rack up enormous fees and take time - thereby exacerbating the chilling of the pending SLAPP suit. More importantly, it is more urgent that the Court of Appeal intervene early in the process to get it right.
The point of this digression? The Hecimovich case presents a cogent example of why the immediate appeal right is necessary in SLAPP cases, where First Amendment free speech and petition rights are being targeted by the lawsuit. First, in my 18 years of handling SLAPP cases, it has been my observation that defamation and malicious prosecution cases are the most difficult torts to analyze from a legal and factual perspective. Along with abuse of process, these two are the most complicated and least understood torts at common law. They don't teach us these torts in law school and we have only begun to teach anti-SLAPP jurisprudence to our Law students. (At least I have been teaching anti-SLAPP, malicious prosecution, and defamation law to Civil and UD Clinic students at University of San Diego School of Law since 2001). Malicious prosecution, defamation, and abuse of process are made for the Courts of Appeal. Because First Amendment rights are more fundamental than other rights and because a meritless lawsuit based on protected petition or speech activity is an evil at which the statute is aimed, it is imperative that SLAPP targets/defendants retain this immediate appeal right subject to an expedited appeal and having to pay SLAPP fees to the plaintiff for a frivolous defense SLAPP appeal.
As the Court pointed out in the Encinal case, a google search of "problem coaches in youth sports" yielded 108,000,000 hits - s subject of tremendous public interest. It now appears that google has become the standard for what is an issue of widespread public interest under subdivision (e)(4) of the anti-SLAPP statute. This is to be distinguished from the issue of public interest to a limited but defined portion of the community under subd. (e)(4) discussed in Ruiz v. Harbor View Community Association (2005) 134 Cal.App.4th 1456 discussing Damon v. Ocean Hills Journalism (2000) 85 Cal.App.4th 474.
But the obvious nature of the SLAPP suit becomes readily when one looks at the merits on prong two. None of the causes of action were sufficiently plead. Plaintiff failed to offer evidence of the allegedly defamatory communications, malice, or any of the other elements of his various contract and tort claims. Finally, plaintiff could not overcome the defendants showing as a matter of law that any assertedly illegal communications were protected by the common interest privilege of CC 47(c) as they were published only to interested members of the PTA who had control of hiring and firing of volunteer coaches like Hecimovich and produced evidence of malice.
The SLAPP 101 lesson goes back to the early cases like Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 817-824 and Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415-1417 - The favored causes of action of the SLAPP plaintiff are Defamation, Intentional Infliction of Emotional Distress, fraud, intentional interference with contract or prospective advantage and various business torts. The sine qua none of a SLAPP suit is its lack of merit Add to this list, malicious prosecution and abuse of process, which are almost always subject to anti-SLAPP treatment. Jarrow Formulas v. La Marche (2003) 31 Cal.4th 728; Rusheen v. Cohen (2005) 37 Cal.4th 1048. Even breach of contract and declaratory relief claims can be SLAPP suits. Navellier v. Sletten (2002) 29 Cal.4th 82, 90-94; Equilon Enterprises LLC v. Consumer Cause (2002) 29 CAl.4th 53. It is not the label but the facts alleged as the basis for liability for each cause of action that determines whether a given cause of action may be subject to a special motion to strike on prong one.
On a final note, this is precisely the kind of case that may draw a SLAPPback malicious prosecution suit under CCP 425.18. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260; Hutton v. Law Offices of Herbert Hafif (2007) 150 Cal.App.4th 157.
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