Sunday, May 27, 2012
Abuse of Anti-SLAPP motions/Appeals met with Sanctions and State Bar Report
In prior blogs, I have commented at length on the controversy among various Courts of Appeal regarding the perceived abuses of the anti-SLAPP procedure by defendants, in particular, the immediate appeal right set forth in CCP 425.16, subd.(i) along with the free stay that comes with the appeal under CCP 916.. In Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180, our High Court noted that our Legislature has spoken by adding the immediate appeal right and broad construction provisions. Varian also observed that any Legislative solution to the problem of any perceived defense abuse of SLAPP appeals does not appear to be forthcoming. Instead, our High Court has encouraged Courts of Appeal to "expedite" any appeals from orders denying anti-SLAPP motions. In the recent SLAPP case, Personal Court Reporters, Inc. v. Gary Rand (Rand II) (filed 4/20/2012; No. B229358) 2012 DJDAR 5059, plaintiff, court reporters sued attorney Rand for breach of contract and common counts for failing to pay a $32,323.00 bill for court reporting services rendered. Rand filed an anti-SLAPP motion pursuant Code of Civil Procedure Section 425.16 arguing that because the court reporting services were performed in the course of the prior litigation and because Rand complained that the fees charged were "illegal, excessive, and unnecessary", the breach of contract arises from his prior petitioning activity. The defense said hogwash - this is a simple breach of contract action based on the act of failure to pay a bill. The court agreed and ruled that the failure to pay a bill cannot conceivably be a protected act of petition or free speech especially in light of the underlying California Back Specialists Medical Group v. Rand (Rand I) (2008) 160 Cal.App.4th 1032 [Medical providers took a lien against proceeds in a PI case where Rand was representing plaintiff. Rand obtained and enforced judgment, and disbursed the proceeds without paying off the lien holders. Medical providers sued claiming Rand failed to satisfy a valid lien. Rand filed a SLAPP motion. Court of Appeal held that cause of action arose from validity and satisfaction of liens, which were never in issue or being reviewed in the prior action.] In both cases, the court found that merely because the cause of action was "triggered" by the prior action does not mean that the liability arose from defendant's participation in that action. Following a recent trend, the Second District Division 4, sanctioned the attorney $22,000.00 in attorneys fees payable to plaintiff for filing a frivolous SLAPP appeal after the trial court had already denied the SLAPP motion and awarded sanctions for the trial court motion, which was affirmed. But in addition, the Court of Appeal reported the attorney to the State Bar. Hence, the concerns first articulated by Justice Richman in Grewal v. Jammu (2011) discussed in my prior 2012 blog on the Hecimovich v. Encinal case, regarding the perceived abuses of the anti-SLAPP procedure are being dealt with swiftly, firmly, and effectively by the appellate courts. Many Courts of Appeal are now issuing an order in every appeal from an order denying an anti-SLAPP motion asking the parties to submit to an expedited briefing schedule to ensure that the briefing process is complete within a certain period of time, usually six months. Hence, Justice Richman's cry for a wholesale repeal of the anti-SLAPP statute's immediate appeal provision set forth in section 425.16, subdivision (i) appears to be unwarranted.