Friday, March 9, 2012
Appealability of SLAPP orders in Federal Court under collateral order doctrine depends on state law
If you file a SLAPP motion in federal court these days and that motion is denied, do you have an immediate appeal right under the collateral order doctrine first set forth in Cohen v. Beneficial Industrial Loan Corp. (1949)? More recently, Batzel v. Smith (9th Cir. 2003) 333 F.3d 1119 was the first SLAPP case to reach the 9th Circuit, address this question, and apply the collateral order doctrine to the immediate appeal provision set forth in California's anti-SLAPP law. The 9th Circuit, however, reached an opposite conclusion in Englert v. MacDonell (2009) and held that the collateral order doctrine did not apply to Oregon's anti-SLAPP law. In Metabolic Research v. Ferrel (9th Cir 2012) 2012 DJDAR 1862, the 9th Circuit reached a similar conclusion holding that the collateral order doctrine did not make orders denying SLAPP motions under Nevada law appealable. The key to each of these decisions is the plain language of each state's respective anti-SLAPP statutes. Because California law has the biggest and baddest anti-SLAPP statute, with limited exceptions, it will be applied to pendent state law claims in federal court just as it is in California Court. Conversely, because Oregon and Nevada have more wimpy anti-SLAPP statutes that do not provide for an immediate appeal for a losing SLAPP defendant, the collateral order doctrine is not going to create an immediate appeal right in federal court.
Sunday, February 19, 2012
Yes, Defamations really can be SLAPPs - Hecimovich case Highlights Need for Immediate Appeal in SLAPP cases
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.
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.
Monday, January 30, 2012
Libel Suit Based On YouTube Video not a SLAPP
The San Francisco Recorder published an article on 1/27/12 about a recent unpublished SLAPP case Brain Research Labs LLC (BRL) v. Thomas Howard Clarke, et al. (filed 1/26/12 No. A127544) from the First Dist. Div. 3. In BRL, Clarke a lawyer published a nine minute video on Youtube whose purpose was to solicit potential clients for a class action against BRL, the maker of Procera alleging that Procera is a dangerous and ineffective supplement and that BRL's claims about Procera are false and illegal. Hence, the solicitation of potential clients for a class action for false advertising, inter alia. In the video, the Court noted a number of libelous statements. Also, attorney Clarke and his client were interviewed in a short segment on KTVU about the case. Each of these communications formed the basis of BRL's libel and intentional interference action, inter alia. The attorney, defendant Clarke, filed an anti-SLAPP motion pursuant to CCP 425.16. As to prong one, the Court also determined that the commercial speech exemption under CCP 425.17(c) does not apply under the recent High Court ruling in Simpson-Strong-Tie Co. v. Gore (2010) 49 Cal.4th 12, 22. The Court reasoned per Simpson that because Clarke's statements in the video and KTVU segment were about BRL and Procera and not about Clarke's goods or services. Hence, the commercial speech exemption under CCP 425.17(c) did not apply.
Accordingly, the court found that the statements in the video about Procera and BRL concerned a matter of significant public interest as the public has an interest in consumer information and the burden shifted to BRL to show a probability of prevailing.
As to prong two, the court revisited the recent controversy over the application of the Mann rule, which holds that the plaintiff need only prove up any part of its claim and need not prove up all counts or theories within a single cause of action to prevail on prong two of a SLAPP motion. Mann v. Quality Old Time Service (2004) 120 Cal.App.4th 90, 106. The BRL Court noted the High Court's recent decision in Oasis West Realty v. Goldman (2011) 51 Cal.4th 811, 820-821, which recently applied and reaffirmed the Mann rule despite recent criticism of the Mann rule in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1195-1212 and Justice Jones disagreeing with majority on Mann rule pp. 1216-1220. (See my previous blog on the Mann rule controversy fall 2011 for a thorough discussion).
The defense asserted the litigation privilege of CC 47(b) and common interest privilege of CC 47(c). The Court rejected each of these defenses based primarily on the Rothman v. Jackson (1996) 49 Cal.App.4th 1134, a great read for libel cases where attorneys seek to litigate in the press. In order to be privileged under CC 47(b), the communication "must function intrinsically, and apart from any consideration of the speaker's intent, to advance a litigant's case, i.e. the litigant's ability obtain the remedies which can be awarded by courts."
The crux of defendant's argument is that the Youtube video as a whole is an attorney solicitation of client's for a potential class action suit in the future. But the court found that "there is no evidence in the record that defendants contemplated in good faith , and seriously considered filing, any litigation other than the Rotenberg action" (the main underlying action pending against BRL). "Accordingly, whether the Youtube video is privileged depends solely on its functional connection to the Rotenberg action."
Under the well-settled Nguyen v. Proton Technologies (1999) 69 Cal.App.4th 140, 142-143, 148, 150-152, the court found that even if the Youtube video as a whole is categorized as an attorney solicitation, not all of the individual statements made within the video are protected by the litigation privilege. Because the statements in the Youtube video did not focus solely on Procera but also discussed on other supplements made by BRL and other manufacturers that had no nexus to the Rotenberg action.
The video and the statements within it were overbroad and exceeded the scope of issues necessary to advance the objectives of the Rotenberg action.
More importantly, under Rothman, supra, publishing the video on Youtube made it accessible to the general public and could be accessed by anyone, regardless of whether he or she had a potential claim or interest in participating in the litigation. Hence, the publication of the attorneys solicitation was "excessive."
Similar reasoning applies to the CC 47(c) common interest privilege.
As a result, the Court affirmed the trial court order denying the SLAPP motion as to BRL's claims.
In my opinion, this case is a great read because it covers a host of well-established litigation and common interest privilege cases while addressing many recent SLAPP cases regarding the mixed cause of action analysis on prong one, the commercial speech exemption of CCP 425.17(c), and the Mann rule on prong two.
I have represented many SLAPP defendants as well as plaintiffs in libel actions as well as many attorney defendants in malicious prosection and abuse of process claims where the various privileges have been raised. Contrary to the opinions of some of the attorneys quoted in the S.F. Recorder article, I do not see any real cutting-edge issues in the BRL case other than the application of well-established litigation privilege cases (primarily Rothman and Nguyen v. Proton) to a 21st century medium of the internet. I do not see any real distinction between a settlement demand letter in Proton and the Youttube video. Nor do I see a distinction between the excessive publication i.e. "litigating in the press" in Rothman and the Youtube video or the KTVU interview of Clarke here. Either way the analysis is the same.
Your comments are welcome!!!
Accordingly, the court found that the statements in the video about Procera and BRL concerned a matter of significant public interest as the public has an interest in consumer information and the burden shifted to BRL to show a probability of prevailing.
As to prong two, the court revisited the recent controversy over the application of the Mann rule, which holds that the plaintiff need only prove up any part of its claim and need not prove up all counts or theories within a single cause of action to prevail on prong two of a SLAPP motion. Mann v. Quality Old Time Service (2004) 120 Cal.App.4th 90, 106. The BRL Court noted the High Court's recent decision in Oasis West Realty v. Goldman (2011) 51 Cal.4th 811, 820-821, which recently applied and reaffirmed the Mann rule despite recent criticism of the Mann rule in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1195-1212 and Justice Jones disagreeing with majority on Mann rule pp. 1216-1220. (See my previous blog on the Mann rule controversy fall 2011 for a thorough discussion).
The defense asserted the litigation privilege of CC 47(b) and common interest privilege of CC 47(c). The Court rejected each of these defenses based primarily on the Rothman v. Jackson (1996) 49 Cal.App.4th 1134, a great read for libel cases where attorneys seek to litigate in the press. In order to be privileged under CC 47(b), the communication "must function intrinsically, and apart from any consideration of the speaker's intent, to advance a litigant's case, i.e. the litigant's ability obtain the remedies which can be awarded by courts."
The crux of defendant's argument is that the Youtube video as a whole is an attorney solicitation of client's for a potential class action suit in the future. But the court found that "there is no evidence in the record that defendants contemplated in good faith , and seriously considered filing, any litigation other than the Rotenberg action" (the main underlying action pending against BRL). "Accordingly, whether the Youtube video is privileged depends solely on its functional connection to the Rotenberg action."
Under the well-settled Nguyen v. Proton Technologies (1999) 69 Cal.App.4th 140, 142-143, 148, 150-152, the court found that even if the Youtube video as a whole is categorized as an attorney solicitation, not all of the individual statements made within the video are protected by the litigation privilege. Because the statements in the Youtube video did not focus solely on Procera but also discussed on other supplements made by BRL and other manufacturers that had no nexus to the Rotenberg action.
The video and the statements within it were overbroad and exceeded the scope of issues necessary to advance the objectives of the Rotenberg action.
More importantly, under Rothman, supra, publishing the video on Youtube made it accessible to the general public and could be accessed by anyone, regardless of whether he or she had a potential claim or interest in participating in the litigation. Hence, the publication of the attorneys solicitation was "excessive."
Similar reasoning applies to the CC 47(c) common interest privilege.
As a result, the Court affirmed the trial court order denying the SLAPP motion as to BRL's claims.
In my opinion, this case is a great read because it covers a host of well-established litigation and common interest privilege cases while addressing many recent SLAPP cases regarding the mixed cause of action analysis on prong one, the commercial speech exemption of CCP 425.17(c), and the Mann rule on prong two.
I have represented many SLAPP defendants as well as plaintiffs in libel actions as well as many attorney defendants in malicious prosection and abuse of process claims where the various privileges have been raised. Contrary to the opinions of some of the attorneys quoted in the S.F. Recorder article, I do not see any real cutting-edge issues in the BRL case other than the application of well-established litigation privilege cases (primarily Rothman and Nguyen v. Proton) to a 21st century medium of the internet. I do not see any real distinction between a settlement demand letter in Proton and the Youttube video. Nor do I see a distinction between the excessive publication i.e. "litigating in the press" in Rothman and the Youtube video or the KTVU interview of Clarke here. Either way the analysis is the same.
Your comments are welcome!!!
Monday, December 19, 2011
A SLAPP AGAINST PLAINTIFF'S EXPERT TESTIMONY IN MED MAL CASES
An interesting but troubling hole in our anti-SLAPP/First Amendment jurisprudence has recently been brought to my attention by a number southern California attorneys who represent plaintiffs in medical malpractice cases. Typically, large healthcare provider organizations (HMOs), iner alia, throughout California have binding arbitration agreements in their health care policy/provider agreements with patients/insureds. In most instances, it is the defendant provider that pays for the arbitrators to sit on panels. As a result, many believe their is inherent bias in the arbitration forum. Many on the plaintiff's side of the bar say that the forced arbitration clause is the first assault on plaintiff's due process and petition rights when they have suffered an injury due to medical negligence. I come from a family of physicians but I am also a professional patient myself. While I believe that there are too many frivolous medical malpractice cases, I also believe there are not enough meritorious ones that should be filed or that there are too many meritorious cases where the plaintiff is not adequately compensated. But regardless of what you or I may believe on whether tort reform is needed or not, a sinister affront to the First Amendment petition rights of plaintiff's expert witnesses in medical malpractice arbitrations and lawsuits appears to be taking place right under our noses.
Many lawyers who represent plaintiff's in medical negligence cases have noticed a nefarious pattern and practice of large medical provider/defendants. For example, plaintiff's expert testifies in a medical negligence case. Expert testimony from the defense is also presented. Win or lose, many of these large organizational defendants will then file a letter complaint to the private accreditation board/medical association for the specialty to which the plaintiff's medical expert belongs and makes his livelihood from. Kind of like ABOTA for lawyers - it is a purely private accredication and professional specialty organization with its own standards of achievment and ethics. Many of these private organizations have their own rules for regulating conduct of its members as well as for admission, suspension, public censure, and expulsion from the group. Public discipline or loss of accreditation - let's say to a cardiac surgeon or an eye surgeon - would be devastating to their reputation, career, and livelihood. These complaints are routinely lodged against plaintiff's medical experts only and they seek to have the physician expert who happens belong to one of these prestigious organizations disciplined, suspended, or expelled as the price for daring to provide expert testimony for a plaintiff against a large HMO or medical organization. According to members of plaintiff's med mal bar, many physician specialists who have testified as experts now find themselves defending against disciplinary complaints initiated by letters from these provider groups. This attack on the petition rights of plaintiff's medical experts to provide medical expert witness testimony in a judicial or quasi-judicial forum has had a direct chilling effect on plaintiff's right to bring a medical malpractice suit and obtain competent legal representation. Experts are everything in medical malpractice cases. The key allegation that invariably shows up in these complaint letters to various prestigious private medical organizations is that the Doctor provided an expert opinion that is false, misleading, or deceptive in violation of the organizations rules of ethics for its members. Lawyers know from defamation 101 that there is no such thing as a false opinion. Because these arbitrations in which the experts testify are private proceedings that are often not authorized by law and may not be reviewable by writ of mandate, which is required to put it within the ambit of the litigation privilege and the anti-SLAPP statute under Kibler v. Northern Inyo County Hospital Medical Group (2006) 39 Cal.4th 192. More importantly, the private acceditation organizations for various medical specialities promulgate their own membership and ethics rules and hearing procedures, which are neither authorized by law nor reviewable by writ of mandate. Often these medical assocations are out of state. So the plaintiff's medical expert is now on trial out of state in a purely private forum without the protections of the Anti-SLAPP laws, the litigation privilege, or the First Amendment. Even if the Doctor prevails at the disciplinary hearing, the cost, expense, and risk to the Doctor's career and livelihood chills the Doctor's willingness to testify as an expert again. Hence, a new involuntary conspiracy of silence has arisen.
Our legislature at the state and federal level needs to enact a law that will deter this kind of abuse of disciplinary proceedings against those who testify as expert witnesses. If the Doctor, after prevailing at the administrative hearing, attempts to sue the defendant provider organization for malicious prosecution in court, he will surely be met with a fierce anti-SLAPP motion.
I am no expert in medical malpractice cases, arbitrations, or private disciplinary proceedings. But I do see big hole in the First Amendment/Anti-SLAPP protections afforded doctors who testify in good faith from having to fend off these kinds of disciplinary complaints with private prestigious medical associations just because they testified as an expert on behalf of a med mal plaintiff.
Based on my information and belief, this pattern and practice is systematically being committed against Doctors who testify as experts on behalf of plaintiffs in med mal cases. But even if this practice was just as frequently aimed at defense experts, either way this practice is wholly repugnant to the both the parties' and the witnesses' First Amendment petition rights. Consequently, this gaping hole in our anti-SLAPP/First Amendment jurisprudence is unacceptable and must be plugged up with appropriate state and federal legislation.
Comments appreciated!!!
Many lawyers who represent plaintiff's in medical negligence cases have noticed a nefarious pattern and practice of large medical provider/defendants. For example, plaintiff's expert testifies in a medical negligence case. Expert testimony from the defense is also presented. Win or lose, many of these large organizational defendants will then file a letter complaint to the private accreditation board/medical association for the specialty to which the plaintiff's medical expert belongs and makes his livelihood from. Kind of like ABOTA for lawyers - it is a purely private accredication and professional specialty organization with its own standards of achievment and ethics. Many of these private organizations have their own rules for regulating conduct of its members as well as for admission, suspension, public censure, and expulsion from the group. Public discipline or loss of accreditation - let's say to a cardiac surgeon or an eye surgeon - would be devastating to their reputation, career, and livelihood. These complaints are routinely lodged against plaintiff's medical experts only and they seek to have the physician expert who happens belong to one of these prestigious organizations disciplined, suspended, or expelled as the price for daring to provide expert testimony for a plaintiff against a large HMO or medical organization. According to members of plaintiff's med mal bar, many physician specialists who have testified as experts now find themselves defending against disciplinary complaints initiated by letters from these provider groups. This attack on the petition rights of plaintiff's medical experts to provide medical expert witness testimony in a judicial or quasi-judicial forum has had a direct chilling effect on plaintiff's right to bring a medical malpractice suit and obtain competent legal representation. Experts are everything in medical malpractice cases. The key allegation that invariably shows up in these complaint letters to various prestigious private medical organizations is that the Doctor provided an expert opinion that is false, misleading, or deceptive in violation of the organizations rules of ethics for its members. Lawyers know from defamation 101 that there is no such thing as a false opinion. Because these arbitrations in which the experts testify are private proceedings that are often not authorized by law and may not be reviewable by writ of mandate, which is required to put it within the ambit of the litigation privilege and the anti-SLAPP statute under Kibler v. Northern Inyo County Hospital Medical Group (2006) 39 Cal.4th 192. More importantly, the private acceditation organizations for various medical specialities promulgate their own membership and ethics rules and hearing procedures, which are neither authorized by law nor reviewable by writ of mandate. Often these medical assocations are out of state. So the plaintiff's medical expert is now on trial out of state in a purely private forum without the protections of the Anti-SLAPP laws, the litigation privilege, or the First Amendment. Even if the Doctor prevails at the disciplinary hearing, the cost, expense, and risk to the Doctor's career and livelihood chills the Doctor's willingness to testify as an expert again. Hence, a new involuntary conspiracy of silence has arisen.
Our legislature at the state and federal level needs to enact a law that will deter this kind of abuse of disciplinary proceedings against those who testify as expert witnesses. If the Doctor, after prevailing at the administrative hearing, attempts to sue the defendant provider organization for malicious prosecution in court, he will surely be met with a fierce anti-SLAPP motion.
I am no expert in medical malpractice cases, arbitrations, or private disciplinary proceedings. But I do see big hole in the First Amendment/Anti-SLAPP protections afforded doctors who testify in good faith from having to fend off these kinds of disciplinary complaints with private prestigious medical associations just because they testified as an expert on behalf of a med mal plaintiff.
Based on my information and belief, this pattern and practice is systematically being committed against Doctors who testify as experts on behalf of plaintiffs in med mal cases. But even if this practice was just as frequently aimed at defense experts, either way this practice is wholly repugnant to the both the parties' and the witnesses' First Amendment petition rights. Consequently, this gaping hole in our anti-SLAPP/First Amendment jurisprudence is unacceptable and must be plugged up with appropriate state and federal legislation.
Comments appreciated!!!
Friday, November 25, 2011
SLAPP Fees Orders - Appeal Connundrum
Beginning with Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322 and Johnston v. Corrigan (2005) 127 Cal.App.4th 553, it was simply assumed that orders granting or denying SLAPP fee awards were immediately appealable prior to judgment just as orders granting or denying SLAPP motions have been since the amendment to CCP 425.16 and 904.1(a)(13) in October 1999 - AB 1675. But in 2005, the Second District in Doe v. Luster (2nd. Dist., Div. 7, 2006) 145 Cal.App.4th 139 for the first time gave some real thought to the issue - albeit in a limited factual context that, I believe, undermines the holding that orders granting or denying SLAPP fee awards prior to judgment are not appealable orders. Doe v. Luster premised its holding on the fact that interlocutory fee orders are not appealable. Doe went through an exhaustive analysis of the cases on point and showed that because there is no statutory provision that specifically makes pre-judgment SLAPP fee orders appealable, the Courts of Appeal lack jurisdiction to hear such appeals. The facts in Doe involve a plaintiff who successfully opposed a SLAPP motion. The SLAPP motion was denied in its entirety. Defendant appealed the order denying the SLAPP motion. While Defendant's SLAPP appeal was pending, plaintiff filed an attorney's fee motion pursuant to subd. (c) of CCP 425.16 claiming that defendant's SLAPP motion was either frivolous or solely intended to cause unnecessary delay. The trial court denied the fee motion finding essentially that defendant's SLAPP motion was not frivolous. Plaintiff appealed the order denying the SLAPP fee motion. Defendant filed a motion to dismiss, which the Court of Appeal granted after oral argument on the motion. While the Court's ruling was right on the money on these facts, it is questionable as to whether the holding in Doe applies in a situation where the defendant obtains a substantial pre-judgment award of attorneys' fees after prevailing on a SLAPP motion where all causes of action were stricken pursuant to CCP 425.16 leaving nothing further for the court to decide. In Doe, the fee order was truly interloctory - the plaintiff's claims had not been stricken or dismissed - each of plaintiff's claims survived - as the trial court denied the SLAPP motion in its entirety. Then the plaintiff filed a pre-judgment motion for SLAPP fees, which was denied. In contrast, the situation where a defendant is awarded a substantial sum of SLAPP attorney's fees pre-judgment after striking all claims pursuant to a SLAPP motion stands in my mind on a wholly different footing - nothing is left to be decided by the trial court. I believe the Doe court makes an artificial distinction between an order merely granting the SLAPP motion in its entirety and stricking all the claims and an order granting a SLAPP motion in its entirety stating that each of plaintiff's claims are "Dismissed." In the latter situation, a fee order is appealable as an order after judgment. In the former situation, the same fee order is not appealable because it is considered a "pre-judgment" order. Now here comes the rub. What if you are a plaintiff who has lost the SLAPP motion in the trial court, the court has awarded $100K to the prevailing SLAPP defendant. You have a clearly meritorious appeal. Pursuant to Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1431-1434 (I was lead counsel for prevailing defendant), you are able and willing to put up a bond as security for the attorney's fees. But now you are unable to appeal and the defendant has purposefully failed to obtain a judgment and has objected to your attempt to file a judgment. The Court refused to file a judgment because of the one final judgment rule and because of the automatic stay imposed by CCP 916 under Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180. In the meantime, the defendant is enforcing that judgment against your client because you have no appeal which you can bond. Now what do you do?
The good news is that you appeal anyway because there is a direct and significant conflict of authority. Under the recent decision Chitsazzadeh v. Kramer & Kaslow (filed 9/27/11 2nd Dist., Div. 3 No. B222988), see footnote 2 the Court held: "An attorney fee award in connection with the denial of a special motion to strike is sufficiently interrelated with the denial that the fee award is reviewable on appeal from the order denying the special motion to strike. (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275; BUT SEE Doe v. Luster (2006) 145 Cal.App.4th 139, 145-150.)"
In fact you must appeal to cover yourself. A plaintiff or defendant would not want to wait until final judgment to appeal the fee award if it was in fact immediately appealable with the order on the SLAPP motion. If you wait until final judgment is entered, you take the risk that the Court of Appeal may rule that the pre-judgment SLAPP fee order was immediately appealable under Chitsazzadeh and is thus untimely and that the Court lacks jurisdiction to hear an untimely appeal. See Martin v. Inland Empire Utilities Agency (4th Dist., Div. 2, 2011) 2011 WL 3621599. No matter what court you are in, you need to do both - you must appeal immediately from the pre-judgment SLAPP fee order. Id. The worst that can happen is that the Court of Appeal dismisses the appeal as premature. Then you may file a writ or you can wait until final judgment to file your appeal from the SLAPP fee order. Finally, you must to do everything you can to stay enforcement of the judgment pending the SLAPP appeal pursuant to Dowling, supra and CCP 917.1(a)(1).
Comments Welcome!!!
James J. Moneer, Esq.
The good news is that you appeal anyway because there is a direct and significant conflict of authority. Under the recent decision Chitsazzadeh v. Kramer & Kaslow (filed 9/27/11 2nd Dist., Div. 3 No. B222988), see footnote 2 the Court held: "An attorney fee award in connection with the denial of a special motion to strike is sufficiently interrelated with the denial that the fee award is reviewable on appeal from the order denying the special motion to strike. (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275; BUT SEE Doe v. Luster (2006) 145 Cal.App.4th 139, 145-150.)"
In fact you must appeal to cover yourself. A plaintiff or defendant would not want to wait until final judgment to appeal the fee award if it was in fact immediately appealable with the order on the SLAPP motion. If you wait until final judgment is entered, you take the risk that the Court of Appeal may rule that the pre-judgment SLAPP fee order was immediately appealable under Chitsazzadeh and is thus untimely and that the Court lacks jurisdiction to hear an untimely appeal. See Martin v. Inland Empire Utilities Agency (4th Dist., Div. 2, 2011) 2011 WL 3621599. No matter what court you are in, you need to do both - you must appeal immediately from the pre-judgment SLAPP fee order. Id. The worst that can happen is that the Court of Appeal dismisses the appeal as premature. Then you may file a writ or you can wait until final judgment to file your appeal from the SLAPP fee order. Finally, you must to do everything you can to stay enforcement of the judgment pending the SLAPP appeal pursuant to Dowling, supra and CCP 917.1(a)(1).
Comments Welcome!!!
James J. Moneer, Esq.
Monday, October 24, 2011
In Defense of The Mann rule - the SLAPP Equalizer
In so far as prong one is concerned, the anti-SLAPP statute's application to a given cause of action, the Legislature has made clear that CCP section 425.16 is to be broadly construed. Once defendant meets this prong one showing ( i.e. that the cause of action arises at least in part from protected speech or petition activity described in subd. (e) of section 425.16), the burden shifts to plaintiff to show a probability of prevailing on the merits of each claim in order to defeat the SLAPP motion on prong two. In mixed SLAPP causes of action - i.e. causes of action that base liability in part on protected activity and in part on non-protected activity - the groundbreaking case of Mann v. Quality Old Time Service (2004) 120 Cal.App.4th 90, 106 holds essentially that the SLAPP statute is to be broadly construed to apply to a cause of action and shift the burden to plaintiff in mixed SLAPP causes of action in accordance with the preamble. But on prong two, Mann created a well recognized prong-two rule for the plaintiff to use in discharging its burden on prong two - the notorious Mann rule.
The Mann rule essentially holds that in any cause of action subject to anti-SLAPP treatment on prong one, the plaintiff need only prove up any part of its claim to defeat the anti-SLAPP motion on prong two. A court need not parse causes of action and strike only those parts of a claim that plaintiff cannot prove up. Example: Jean Newton is a vet tech that has worked for ABC animal hospital for 2 years. Dr. Borjal is the owner and manager. Newton sues Borjal and the Clinic for retaliation on the following grounds: (1) Dr. Borjal demanded Newton to perform sexual favors; Newton refused the Dr. 's demands; and she was terminated the next day; and (2) Dr. Borjal reported Newton to the police for stealing narcotics from the Clinic the day she was terminated and participated as a witness in the subsequent criminal prosecution. This is clearly a mixed cause of action. Defendant can easily meet its first prong burden by showing that at least one act of petitioning activity is a basis of liability - i.e. the false police report and participation in the criminal trial. This is protected petition activity under subdivisions (e)(1) and (2). It is also barred by the absolute litigation privilege of CC 47(b) on the merits. So to the extent the retaliation were excluisively based on the police report and criminal trial activity, the cause of action would be stricken as a meritless SLAPP suit. But this cause of action has several counts. The first count bases liability squarely on the act of firing her in retaliation for refusing sexual favors - no protected SLAPP petitioning or speech activity here. Assume there is no privilege or Statute of limitations defense otherwise barring the claim. If plaintiff can offer a declaration with proper foundation averring that the Dr. demanded sex from her, that she refused, and that she was fired the next day, and that she suffered specific harm as a result, she has adduced competent admissible evidence that, if credited, by the trier of fact would entitle her to judgment
as a matter of law on a retaliation claim. One could argue that the result under Mann is that the litigation privilege allegations survive to chill another day. Here, the plaintiff has shown a probability of prevailing on "any part of its claim" regardless of whether it is protected activity or unprotected activity, like the termination.
The Mann rule has recently been vituperatively criticized by one Justice in the First Dist. Division 5 Court of Appeal. It started out as Justice Needham's thought provoking dissent in the 2010 Haight-Ashbury Free Clinic v. Happening House (2010) 184 Cal.App.4th 1539. This dissent has more recently morphed into 20-pages of dicta in the majority opinion in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169. Justice Needham engaged in an exhaustive analysis of why the Mann rule impairs that anti-SLAPP statute's efficacy in striking meritless SLAPP suits.
The first argument is based on the plain language of the the statute arguing essentially that the Legislature intended something different when it used the terms "cause of action" and "claim"
in subd (b)(1). He is correct that the false police report allegations and participation in the criminal trial would survive to chill another day under Mann. He argues that the plain language of the statute, Legislative History, and the broad construction would dictate that Mann be rejected. However, the broad plain language construction was intended to get as many causes of action that arise even partly from petition or free speech activity within the broad swath of the SLAPP statute's early screening test on prong one. But as Justice Jones pointed out in a cogent concurring opinion, the Mann rule has been the well established precedent in this State for over seven years now and the Legislature has amended the anti-SLAPP statute at least three times since the Mann rule was first announced in 2004. More importantly, when one examines the Legislative History of the statute, it is apparent that the definition of a SLAPP suit was one that entirely lacked merit was filed to chill First Amendment speech and petition rights. These suits that were filed by wealthy land developers against environmental activists has no potential merit. According to the plain language of the statute itself, a SLAPP suit is defined as a lawsuit that arises from the protected speech or petition activity AND lacks merit. In the Legislative History and the writings of Pring and Canaan - two professors who discovered and defined the phenomenon of SLAPP suits - found that "the sine qua none of a SLAPP suit is it lack of merit."
So the intent and the law is that you can sue people all day long for speaking out or petitioning as long as the suit has some merit. This interpretation is buttressed by numerous California Supreme Court decisions beginning with Navallier v. Sletten (2002) 29 Cal.4th 82, 92 stating that plaintiff may discharge its secondary burden of showing a probability of prevailing by showing the claims have "minimal merit". Navellier predated Mann by two years. Here, allowing Newton's claim under the Mann rule to proceed is consistent with the policy and purpose of the anti-SLAPP statute especially when considered in light of the early stage at which the SLAPP motion is brought, the no leave to amend rule in Simmons v. Allstate 92 Cal.App.4th 1063, and the automatic stay on discovery under subd, (g).
While Justice Needham certainly has some good points, in my opinion, the biggest problem with adopting the rule he would suggest is administrability. He has not satisfactorily shown how a court, without unduly complicating matters, gets around the problem of striking parts of causes of action based on protected activity and allowing the nonprotected activity to survive. Nor has he even discussed how attorneys fees and costs might be apportioned under that rule when a part of a cause of action is stricken.
Most importantly, the one thing that stopped Justice Needham from making his 20 pages of dicta in Wallace into conflicting authority was his acknowledgment that our Supreme Court has recently approved of the Mann rule and applied it in a closely related context and found no reason why the Supreme Court would disapprove of applying Mann in the way it was applied in the Newton v. Borjal example above. Wallace v. McCubbin (2011) 196 Cal.App.4th 1169 citing (Oasis West Realty v. Goldman (2011) 51 Cal.4th at 820). Fortunately, it was Oasis that stopped the Wallace majority from creating authority that would conflict with Mann and necessitate Supreme Court review. After all is a claim that is based on at least some actionable conduct a lawsuit that constitutes "abuse of the judicial process"? [CCP 425.16, subd. (a)]
As a SLAPP specialist who represents both defendants and plaintiffs, I believe that Mann rule creats an appropriate state of equipoise. In fact, it is the only counterbalancing rule that gives some credence to a plaintiff's due process rights in the context of a SLAPP motion on prong two and comports with the policy and purpose of the anti-SLAPP statute as envisioned by the Legislature. The Mann rule is the ultimate equalizer balancing the clear advantage a moving SLAPP defendant has over a plaintiff once the SLAPP motion is filed in state court.
Comments welcome
By James J. Moneer, Esq.
The Mann rule essentially holds that in any cause of action subject to anti-SLAPP treatment on prong one, the plaintiff need only prove up any part of its claim to defeat the anti-SLAPP motion on prong two. A court need not parse causes of action and strike only those parts of a claim that plaintiff cannot prove up. Example: Jean Newton is a vet tech that has worked for ABC animal hospital for 2 years. Dr. Borjal is the owner and manager. Newton sues Borjal and the Clinic for retaliation on the following grounds: (1) Dr. Borjal demanded Newton to perform sexual favors; Newton refused the Dr. 's demands; and she was terminated the next day; and (2) Dr. Borjal reported Newton to the police for stealing narcotics from the Clinic the day she was terminated and participated as a witness in the subsequent criminal prosecution. This is clearly a mixed cause of action. Defendant can easily meet its first prong burden by showing that at least one act of petitioning activity is a basis of liability - i.e. the false police report and participation in the criminal trial. This is protected petition activity under subdivisions (e)(1) and (2). It is also barred by the absolute litigation privilege of CC 47(b) on the merits. So to the extent the retaliation were excluisively based on the police report and criminal trial activity, the cause of action would be stricken as a meritless SLAPP suit. But this cause of action has several counts. The first count bases liability squarely on the act of firing her in retaliation for refusing sexual favors - no protected SLAPP petitioning or speech activity here. Assume there is no privilege or Statute of limitations defense otherwise barring the claim. If plaintiff can offer a declaration with proper foundation averring that the Dr. demanded sex from her, that she refused, and that she was fired the next day, and that she suffered specific harm as a result, she has adduced competent admissible evidence that, if credited, by the trier of fact would entitle her to judgment
as a matter of law on a retaliation claim. One could argue that the result under Mann is that the litigation privilege allegations survive to chill another day. Here, the plaintiff has shown a probability of prevailing on "any part of its claim" regardless of whether it is protected activity or unprotected activity, like the termination.
The Mann rule has recently been vituperatively criticized by one Justice in the First Dist. Division 5 Court of Appeal. It started out as Justice Needham's thought provoking dissent in the 2010 Haight-Ashbury Free Clinic v. Happening House (2010) 184 Cal.App.4th 1539. This dissent has more recently morphed into 20-pages of dicta in the majority opinion in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169. Justice Needham engaged in an exhaustive analysis of why the Mann rule impairs that anti-SLAPP statute's efficacy in striking meritless SLAPP suits.
The first argument is based on the plain language of the the statute arguing essentially that the Legislature intended something different when it used the terms "cause of action" and "claim"
in subd (b)(1). He is correct that the false police report allegations and participation in the criminal trial would survive to chill another day under Mann. He argues that the plain language of the statute, Legislative History, and the broad construction would dictate that Mann be rejected. However, the broad plain language construction was intended to get as many causes of action that arise even partly from petition or free speech activity within the broad swath of the SLAPP statute's early screening test on prong one. But as Justice Jones pointed out in a cogent concurring opinion, the Mann rule has been the well established precedent in this State for over seven years now and the Legislature has amended the anti-SLAPP statute at least three times since the Mann rule was first announced in 2004. More importantly, when one examines the Legislative History of the statute, it is apparent that the definition of a SLAPP suit was one that entirely lacked merit was filed to chill First Amendment speech and petition rights. These suits that were filed by wealthy land developers against environmental activists has no potential merit. According to the plain language of the statute itself, a SLAPP suit is defined as a lawsuit that arises from the protected speech or petition activity AND lacks merit. In the Legislative History and the writings of Pring and Canaan - two professors who discovered and defined the phenomenon of SLAPP suits - found that "the sine qua none of a SLAPP suit is it lack of merit."
So the intent and the law is that you can sue people all day long for speaking out or petitioning as long as the suit has some merit. This interpretation is buttressed by numerous California Supreme Court decisions beginning with Navallier v. Sletten (2002) 29 Cal.4th 82, 92 stating that plaintiff may discharge its secondary burden of showing a probability of prevailing by showing the claims have "minimal merit". Navellier predated Mann by two years. Here, allowing Newton's claim under the Mann rule to proceed is consistent with the policy and purpose of the anti-SLAPP statute especially when considered in light of the early stage at which the SLAPP motion is brought, the no leave to amend rule in Simmons v. Allstate 92 Cal.App.4th 1063, and the automatic stay on discovery under subd, (g).
While Justice Needham certainly has some good points, in my opinion, the biggest problem with adopting the rule he would suggest is administrability. He has not satisfactorily shown how a court, without unduly complicating matters, gets around the problem of striking parts of causes of action based on protected activity and allowing the nonprotected activity to survive. Nor has he even discussed how attorneys fees and costs might be apportioned under that rule when a part of a cause of action is stricken.
Most importantly, the one thing that stopped Justice Needham from making his 20 pages of dicta in Wallace into conflicting authority was his acknowledgment that our Supreme Court has recently approved of the Mann rule and applied it in a closely related context and found no reason why the Supreme Court would disapprove of applying Mann in the way it was applied in the Newton v. Borjal example above. Wallace v. McCubbin (2011) 196 Cal.App.4th 1169 citing (Oasis West Realty v. Goldman (2011) 51 Cal.4th at 820). Fortunately, it was Oasis that stopped the Wallace majority from creating authority that would conflict with Mann and necessitate Supreme Court review. After all is a claim that is based on at least some actionable conduct a lawsuit that constitutes "abuse of the judicial process"? [CCP 425.16, subd. (a)]
As a SLAPP specialist who represents both defendants and plaintiffs, I believe that Mann rule creats an appropriate state of equipoise. In fact, it is the only counterbalancing rule that gives some credence to a plaintiff's due process rights in the context of a SLAPP motion on prong two and comports with the policy and purpose of the anti-SLAPP statute as envisioned by the Legislature. The Mann rule is the ultimate equalizer balancing the clear advantage a moving SLAPP defendant has over a plaintiff once the SLAPP motion is filed in state court.
Comments welcome
By James J. Moneer, Esq.
Thursday, August 11, 2011
SLAPP Trap for Unwary: Recent case shortens SOL for malicious prosecution against attorneys
In March of 2011, Vafi v. McCloskey (2011) 193 Cal.App.4th 874 held that the shorter one-year statute of limitations applied to malicious prosecution actions brought against attorneys instead of the two-year that applies to malicious prosecution actions generally against non-lawyers.
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