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Aaron Morris: Anti-SLAPP Attorney에서 제공하는 콘텐츠입니다. 에피소드, 그래픽, 팟캐스트 설명을 포함한 모든 팟캐스트 콘텐츠는 Aaron Morris: Anti-SLAPP Attorney 또는 해당 팟캐스트 플랫폼 파트너가 직접 업로드하고 제공합니다. 누군가가 귀하의 허락 없이 귀하의 저작물을 사용하고 있다고 생각되는 경우 여기에 설명된 절차를 따르실 수 있습니다 https://ko.player.fm/legal.
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1 Close Encounters with UFO Hot Spots: Area 51, Roswell, and the Great ET Road Trip 39:50
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좋아요The truth is out West! We’re hopping on the ET Highway and venturing to the most notorious alien hot spots, including Roswell’s infamous crash site, Area 51’s eerie perimeter, and a mysterious desert watchtower. Join us as journalist Laura Krantz, host of the podcast Wild Thing , beams up to share stories from the front lines of UFO reporting—from strange sightings and quirky festivals to a mailbox where people leave letters to extraterrestrials. Maybe you’ll even decide for yourself: Is Earth a tourist stop for spaceships? UFO hot spots you’ll encounter in this episode: - UFO Watchtower (near Great Sand Dunes National Park, Colorado) - Roswell, New Mexico - Area 51, Nevada - Extraterrestrial Highway (aka State Route 375), Nevada - Little A’Le’Inn, ET Highway, Nevada - E.T. Fresh Jerky, ET Highway, Nevada - Alien Research Center, ET Highway, Nevada - The Black Mailbox, ET Highway, Nevada Via Podcast is a production of AAA Mountain West Group .…
California SLAPP Law
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Aaron Morris: Anti-SLAPP Attorney에서 제공하는 콘텐츠입니다. 에피소드, 그래픽, 팟캐스트 설명을 포함한 모든 팟캐스트 콘텐츠는 Aaron Morris: Anti-SLAPP Attorney 또는 해당 팟캐스트 플랫폼 파트너가 직접 업로드하고 제공합니다. 누군가가 귀하의 허락 없이 귀하의 저작물을 사용하고 있다고 생각되는 경우 여기에 설명된 절차를 따르실 수 있습니다 https://ko.player.fm/legal.
Anti-SLAPP Motions and SLAPP-back Actions
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Aaron Morris: Anti-SLAPP Attorney에서 제공하는 콘텐츠입니다. 에피소드, 그래픽, 팟캐스트 설명을 포함한 모든 팟캐스트 콘텐츠는 Aaron Morris: Anti-SLAPP Attorney 또는 해당 팟캐스트 플랫폼 파트너가 직접 업로드하고 제공합니다. 누군가가 귀하의 허락 없이 귀하의 저작물을 사용하고 있다고 생각되는 경우 여기에 설명된 절차를 따르실 수 있습니다 https://ko.player.fm/legal.
Anti-SLAPP Motions and SLAPP-back Actions
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1 SLAPP035 – Understanding the Public Interest Requirement 23:21
23:21 나중에 재생 나중에 재생 리스트 좋아요 좋아요23:21
나중에 재생 나중에 재생 리스트 좋아요 좋아요In 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.…
1 SLAPP034 – Are Calls to the Police Still Protected Speech? 15:46
15:46 나중에 재생 나중에 재생 리스트 좋아요 좋아요15:46
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 34 of the California SLAPP Law Podcast, we examine the amendment to Civil Code section 47, which changed calls to the police from being absolutely privileged, to only conditionally privileged. Attorneys who sue for calls to the police, do so at their peril, as opposing counsel learned. And we are happy to report that Morris & Stone created a new legal precedent, having to do with what we have long referred to as “all-or-nothing” anti-SLAPP motions. In Baral v. Schnitt , the California Supreme Court held that individual allegations of protected speech can be stricken from a complaint. But what if a defendant brings an anti-SLAPP motion that asks only to strike the entire complaint? How should the court handle it, when the defendant then changes course, and asks in the reply brief for individual allegations to be stricken? Listen to Episode 34 for the answer.…
1 SLAPP033 – How to Defeat an anti-SLAPP Motion with Inadmissible Evidence 20:15
20:15 나중에 재생 나중에 재생 리스트 좋아요 좋아요20:15
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 33 of the California SLAPP Law Podcast, we revisit the California Supreme Court decision of Sweetwater Union High School District v. Gilbane Building Co. Our client was sued by an attorney, and we had the action dismissed by way of an anti-SLAPP motion. The attorney appealed, and in his briefs, he never mentioned the Sweetwater holding, and we sure were not going to bring it up. The Court of Appeal brought it up anyway. Would the attorney be able to reverse the ruling, based on evidence that might be admissible at trial? We also discuss how sometimes the best thing to do is nothing. We were brought in to oppose an anti-SLAPP motion, but when the trial court kept continuing the hearing, I told the client, “wait for it, wait for it . . .” And I tell the tale of nice woman who ran afoul of the anti-SLAPP statute with her cross-complaint, and was faced with a massive attorney fee application. She could not afford to hire us, but a little guidance from the wings saved her from disaster.…
We begin Episode 32 with the discussion of how Morris & Stone just defeated an anti-SLAPP motion. I reveal the common (and fatal) mistake made by defense counsel when they pursue anti-SLAPP motions. And on the topic of mistakes, based on my prior article , we turn to the three cases that counsel almost always cite improperly when defending against an anti-SLAPP motion. Listen and find out what these three cases really stand for: Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858. Weinberg v. Feisel (2003) 110 Cal.App.4th 1122. Flatley v. Mauro (2006) 39 Cal.4th 299. Finally, in the after-show, I reveal a successful strategy to obtain a trial continuance, even when the judge has already said no.…
1 SLAPP031 – A Gambler Bets Wrong on the Anti-SLAPP Statute 18:32
18:32 나중에 재생 나중에 재생 리스트 좋아요 좋아요18:32
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 31, in addition to an anti-SLAPP case, we examine another example of how opposing counsel blew an opposition to our Motion for Summary Judgment, by being unaware of the procedure rules. The limit for the memorandum of points on a typical motion is 15 pages, but a motion for summary judgment is a big deal, so the rules graciously allow 20 pages for that type of motion. The same rule applies to the opposition. But this attorney offered up a 60 page memo. How did we use that error to seal his doom? Listen to Episode 31 to find out. Next we turn to the case of Mike Postle, a professional gambler. Some accused Postle of cheating at a particular poker tournament. He took umbrage with that, and sued 12 of his accusers. We would have told poor Mr. Postle the tale of Joe the Alcoholic, which made clear that he could not prevail on his defamation claim. Listen for all the details, and the only possible silver lining in Postle’s debacle.…
Fun, fun, fun in the California sun at Morris & Stone. In just the past couple of weeks, we (1) Obtained a 3.9 million dollar defamation verdict for one client; (2) Got another client out of a 7 million dollar case on a motion for summary judgment, and (3) Were awarded our fees following a successful anti-SLAPP motion, even though the motion did not dispose of every cause of action. In Episode 30 of the California SLAPP Law Podcast, we discuss the facts of the aforementioned anti-SLAPP motion, and the motion for attorney fees that followed. This particular anti-SLAPP motion presented some really interesting issues, as did the motion for attorney fees. As to the anti-SLAPP motion, we examine whether it can ever be defamatory to call someone a crook . It might seem so, but how exactly does one define a crook in order to offer evidence that one is not a crook? As to the motion for attorney fees, how does the court handle such a request when the underlying anti-SLAPP motion was only partially successful? Along the way, we are again reminded why it is so crucial to know the procedural rules governing any motion you bring.…
1 SLAPP029 – Can Attorneys Sue Their Clients for Malicious Prosecution After a Fee Dispute? 18:13
18:13 나중에 재생 나중에 재생 리스트 좋아요 좋아요18:13
나중에 재생 나중에 재생 리스트 좋아요 좋아요In episode 28, we discussed the attorney who sued his own client for malicious prosecution. The client had challenged the fees charged by the attorney by way of the informal fee arbitration process, and when he lost the attorney turned around and sued for malicious prosecution. Incredibly, the court denied our motion, so we had to take it up on appeal. The Court of Appeal agreed with our position that a fee arbitration cannot be the predicate for a malicious prosecution case, and therefore the attorney could not possibly prevail on the second prong of the anti-SLAPP analysis. In Episode 29, we discuss the court’s decision, as well as the motion for attorney fees that followed. The attorney provided a 65-page report from an expert witness who challenged our fees and hourly rate, but the judge was having none of it.…
1 SLAPP028 – An Exception to the Absolute Police Report Privilege? 21:05
21:05 나중에 재생 나중에 재생 리스트 좋아요 좋아요21:05
나중에 재생 나중에 재생 리스트 좋아요 좋아요Some of our anti-SLAPP cases are breaking new legal ground through some very interesting fact patterns. Penal Code section 11172 You are probably aware that certain professionals are required to report any child abuse situation of which they become aware. Penal Code section 11172 was created in order to afford those mandated reporters immunity against defamation claims potentially arising from their reports. But that same statute includes the following wording as regards persons who are not mandated reporters: Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused. But hold on Maude. Civil Code 47 and Code of Civil Procedure 425.16 both afford what has always been held to be an absolute privilege for reports to the police. Does Penal Code section 11172 carve out an exception? Listen to Episode 28 for the answer. Can an attorney sue for malicious prosecution based on a fee arbitration? Ahhh, the benefits of hindsight. Episode 28 of the California SLAPP Law Podcast was recorded almost a year ago, but I never got around to editing and posting it. In addition to reporting on our recent victories at that time, it included the tale of an anti-SLAPP motion that had not gone in our favor, and was still up on appeal. I promised at the time to report on the results of the appeal. [Spoiler alert: We won on appeal and the anti-SLAPP motion was granted.] As I was editing the podcast today, I was struck by the fact that it seemed to come from another era; like finding a journal entry where you referred to stopping at a pay phone or expressed how much you liked your Angel Flight pants. I discuss how I traveled to San Francisco to argue the case to the Court of Appeal. Can you imagine? Actual, face-to-face argument to the court? What an archaic notion. In the next episode of the California SLAPP Law Podcast I will report on the opinion by the Court of Appeal, but if you can’t wait, you can read all about it on the California SLAPP Law website . You’ve got to know when to fold them . . . Finally, I tell the tale of a plaintiff who just did not know when to fold them . . . know when to walk away . . . know when to run. We defeated her case with an anti-SLAPP motion. It was apparent each step of the way that her counsel just did not know the law in this area. Ever helpful, we explained each step of the way what we were going to do if he proceeded with his plans, and what it would cost his client. After spending probably tens of thousands of dollars in activities we advised against, Plaintiff had to finally pay the piper.…
1 SLAPP027 – When a Motion to Dismiss is a Better Strategy than an Anti-SLAPP Motion 18:21
18:21 나중에 재생 나중에 재생 리스트 좋아요 좋아요18:21
나중에 재생 나중에 재생 리스트 좋아요 좋아요President Trump is never short on controversy, and said controversy leads to some interesting cases. In Episode 27 of the California SLAPP Law Podcast, we will discuss two Trump cases — one First Amendment and one anti-SLAPP — arising from the words and tweets of our sneerless leader. We’ll also discuss when a motion to dismiss can be a better option than an anti-SLAPP motion. The first case is Nwanguma v. Donald Trump , arising from his comments at a political rally before he was elected. When hecklers tried to shout him down, he said “get ’em out of here.” The crowd heeded his words and bodily removed the protesters, who then sued for battery and incitement. They claimed that by saying “get ’em out of here,” Trump incited the crowd to riot. Trump moved to dismiss, arguing that his words were mere hyperbole. How did the court rule? Listen to Episode 27 and find out! Next comes the infamous case of Stormy Daniels v. Donald Trump . Daniels sued Trump in two different forums for two different claims. In one, she is simply trying to get out the contract whereby she was paid for her silence. In the other, she had stated during a press conference that she had been threatened by a man who told her to be quiet about sleeping with Trump, even showing an artist’s rendering of the allege suspect from many years prior. Trump felt compelled to tweet that the story was a total “con job.” Her attorney, Michael Avenati, who would have known better if he listened to the California SLAPP Law Podcast, decided to sue for defamation for Trump’s usage of the phrase “con job.” As any regular listener would know, “con job” is just too imprecise to support a defamation claim. It is not verifiably false, and without a verifiably false statement, there can be no defamation. Trump brought an anti-SLAPP motion, which was granted. Not a good week for Avenati. In the same week that the court granted Trump’s anti-SLAPP motion, finding that Daniels would therefore be liable for all of Trump’s attorney fees, Avenati was found personally liable for a multi million dollar judgment by a former associate at his firm, and was given an eviction notice from his law offices for failure to pay rent. And stay around for the after show, where I discuss the happenings with Bell v. Feibush , some precedent I created six years ago.…
1 SLAPP026 – Don’t Sue for Defamation Unless the Statements Really are False 14:13
14:13 나중에 재생 나중에 재생 리스트 좋아요 좋아요14:13
나중에 재생 나중에 재생 리스트 좋아요 좋아요Canada, eh? Those hosers in Ontario didn’t get around to passing an anti-SLAPP statute until 2015, and they’re still trying to figure it out. In this episode of the California SLAPP Law Podcast, we travel to the great white north to examine an anti-SLAPP motion that was denied by the trial court, but granted by the appellate court. It beautifully illustrates the most fundamental point of a defamation case that oh so many attorneys still don’t understand. A statement is not defamatory unless it is false, no matter what the quantum of harm it may cause.…
1 SLAPP025 – Anti-SLAPP Motion Defeats Gone With the Wind Actress 23:26
23:26 나중에 재생 나중에 재생 리스트 좋아요 좋아요23:26
나중에 재생 나중에 재생 리스트 좋아요 좋아요de Havilland v. FX Networks, LLC If you sell t-shirts bearing the images of the Three Stooges, can you be sued for violating their right of publicity? And if you create and broadcast an 8-part docudrama centering on Bette Davis and Joan Crawford, can Olivia de Havilland sue you for including the details of HER life in that story? Well, the just decided case of de Havilland v. FX Networks, LLC answers both those questions. I enjoyed this anti-SLAPP case because it beautifully illustrates how some judges just don’t understand precedent. Olivia de Havilland, who is now 102 years old, did not like the way she was protrayed in the FX docudrama, “Feud: Bette and Joan,” centering on deceased actresses Bette Davis and Joan Crawford. In case you don’t recognize the name, de Havilland portrayed Melanie in Gone With the Wind. She was the one Scarlett was always jealous of, as I recall. She sued FX, claiming the portrayal of her in the show amounted to the unauthorized use of her name and likeness for commercial gain. FX responded with an anti-SLAPP motion. The trial court, Judge Holly Kendig presiding, denied the anti-SLAPP motion, relying in large part on a California Supreme Court decision called Comedy III Productions v. Gary Saderup, Inc. FX appealed. Listen to Episode 25 to see how it all turned out. What is the current status of the requirement that an anti-SLAPP motion be heard within 30 days of filing? Previously, Fair Political Practices Commission v. American Civil Right Coalition, Inc. and Decker v. U.D. Registry had held that the 30-day requirement was jurisdictional. Now Karnazes v. Ares holds that it is the clerk’s burden to set the hearing within 30 days. But does that mean counsel is safe if a hearing is outside the 30-day deadline. Listen to find out.…
1 SLAPP024 – Supreme Court Clarifies Whether Amended Complaint Resets 60-Day Clock for Anti-SLAPP Motion 23:35
23:35 나중에 재생 나중에 재생 리스트 좋아요 좋아요23:35
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 24 of the California SLAPP Law Podcast, we tackle two important anti-SLAPP issues. Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism The conventional wisdom until now, as expressed in cases such as Yu v. Signet Bank/Virginia, was that an amended complaint creates an new 60-day period to file an anti-SLAPP motion. Then along came the Court of Appeal decision of Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism. In that case, the plaintiff originally sued on two causes of action, to which the defendant demurrered. When the plaintiff filed a third amended complaint, which added two new causes of action, the defendant finally filed an anti-SLAPP motion, challenging all the claims, including the two that had been there all along. The trial court refused to consider the challenge to the previously existing claims, stating they were past the 60 days since they could have been previously challenged. The Supreme Court agreed. This is a quantum shift in the prior case law, but will the consequences be as severe as the holding seems to indicate? Listen to Episode 24 to find out, and for the best strategies for dealing with the Newport Harbor reasoning. Dowling v. Zimmerman Certainly not a new case, but we use it to discuss whether an appeal stays collection of costs and attorney fees following a successful anti-SLAPP motion.…
1 SLAPP023 – Privileged Speech Can Survive Anti-SLAPP Motions 21:18
21:18 나중에 재생 나중에 재생 리스트 좋아요 좋아요21:18
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 23 of the California SLAPP Law Podcast, we examine two cases that consider how privileged speech should be viewed during the two-prong anti-SLAPP analysis. As you will hear, the fact that the speech was privileged does not mean it automatically falls under the anti-SLAPP statute. Edalati v. Kaiser Foundation Health Plan, Inc. This unpublished case is our starting point. In Edalati , a dentist learned that Kaiser Foundation Health Plan had sent a letter to dozens of her patients, falsely informing them that the dentist was on a government list for Medicare abuse. Kaiser realized it’s mistake and sent out a retraction letter, but by that point the damage had been done. The dentist sued for defamation, and Kaiser responded with an anti-SLAPP motion. Kaiser’s letter clearly falls under the common interest privilege of Civil Code section 47, but is that enough to prevail on an anti-SLAPP motion? Lefebvre v. Lefebvre In opposition to Kaiser’s anti-SLAPP motion, the dentist in Edalati relied on the case of Lefebvre v. Lefebvre . In that case, a wife, in the hope that it would help in a custody dispute, filed a false police report against her husband, claiming he had threatened to kill her and their children. He was arrested and charged. He was found not guilty, and then sued his ex-wife for defamation. The wife brought an anti-SLAPP motion. The report to the police enjoys an absolute privilege, so the anti-SLAPP motion must have been granted, right? Don’t be so sure. Listen to this latest episode to find out. Here’s a hint. The case law discussed in this episode offers a means to save attorneys and their clients from an award of attorney fees when they end up on the wrong side of an anti-SLAPP motion. A great, FREE program The publisher stopped supporting and offering a fantastic program called Notescraps that I use every day in my practice. I not only prevailed on them to keep offering the program, I got them to give it to you for free (it used to be $20). I tell you how to get it on this episode. Book ’em Danno. And finally, just for fun, I tell the tale of my encounter with some officious deputies at the courthouse. I still made it to court and still won my motion.…
1 SLAPP022 – Abuse of Process Claims and Anti-SLAPP Motions 32:11
32:11 나중에 재생 나중에 재생 리스트 좋아요 좋아요32:11
나중에 재생 나중에 재생 리스트 좋아요 좋아요Hooray for Hollywood! In Episode 22 of the California SLAPP Law Podcast, we discuss four cases involving the film industry that have all resulted in anti-SLAPP motions. We also dive deep into abuse of process claims , and determine if such claims can ever survive an anti-SLAPP motion. And in the process, we discuss a trial strategy that I successfully utilized in achieving a case involving the Automotive Repair Act. Cases discussed in this Episode: Kelly Van v. James Cameron (unpublished). In this case, and author named Kelly Van sued James Cameron and a cast of thousands, claiming that Avatar was a ripoff of her book, Sheila the Warrior; the Damned . When she lost the copyright action in Federal Court, she sued in state court, claiming that she only lost the federal action because the defendants had lied. So she was suing for statements made in another case. Sounds like a SLAPP to me. Timothy Forsyth v. Motion Picture Association of America, Inc. In this class action, the plaintiff claims that depictions of smoking in the movies are killing our children. They claim it is a violation of the movie rating system to give a movie a PG-13 rating if the movie depicts smoking (such as Gandalf smoking his pipe in the Lord of the Rings movies). So the plaintiff gets to tell the movie industry how to rate movies? Sounds like a SLAPP to me. Paul Brodeur v. Atlas Entertainment (unpublished). In the 70s, Paul Brodeur told the world that microwave ovens were dangerous, but he never said the cook the nutrients out of food. In the film American Hustle, a fictional charater makes the fictional statement that Paul Brodeur said that microwaves cook the nutrients out of food. So Brodeur gets to tell the movie industry how to write the fictional dialog of its fictional characters? Sounds like a SLAPP to me. Michael Hawkins v. Christian Slater (Superior Court case) For a brief shining moment in Camelot, Christian Slater reunited with his actor father, Michael Hawkins. They had had a turbulent relationship, but Slater announced in an interview that he was happy to have his father back in his life, describing his father as a “manic-depressive schizophrenic.” His father sued for defamation, and Slater brought an anti-SLAPP motion. So Hawkins thinks that Slater is qualified to offer a medical diagnosis, such that his statement would be taken as a verifiable statement? Sounds like a SLAPP to me. Rusheen v. Cohen (Supreme Court Decision). The Supreme Court case that tells all about abuse of process claims. Every abuse of process claim will be met with an anti-SLAPP motion. Here is the information you need to determine if your abuse of process claim will survive that motion.…
1 SLAPP021 – Anti-SLAPP Motions Against Mixed Causes of Action 27:04
27:04 나중에 재생 나중에 재생 리스트 좋아요 좋아요27:04
나중에 재생 나중에 재생 리스트 좋아요 좋아요We discuss the very important case of Baral v. Schnitt , in which the California Supreme Court finally dealt with the split of authorities regarding how to deal with complaints with mixed causes of action ; those that contain allegations of both protected and unprotected activities. This is probably the most important anti-SLAPP decision of the decade. We also take a quick look at Hassell v. Bird , in which the Court of Appeal held that Yelp can be ordered to take down a false and defamatory post, even if it was not a party to the action. Finally, I tell the tale of a very entertaining victory we had in Norwalk Superior Court, in front of a finger-wagging judge.…
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California SLAPP Law
1 SLAPP020 – Sixth District Weighs in on Admissibility of Yelp Reviews and the Law on Inferences 46:39
46:39 나중에 재생 나중에 재생 리스트 좋아요 좋아요46:39
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 20 of the California SLAPP Law Podcast, we discuss important Evidence Codes, and my VINDICATION by the California Court of Appeal. The vindication comes in the form of a published opinion from the Sixth District Court of Appeal. I was brought in as co-counsel to first chair an internet defamation trial in Santa Cruz, representing a client (an attorney) we will refer to as “Esquire”. We were also defending a cross-complaint for breach of a commercial lease. The trial was assigned to Judge Ariadne Symons , who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers. At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint for defamation and breach of the covenant of quiet enjoyment. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence. I was confident that the matter would be reversed on appeal, and I was looking forward to the Court of Appeal’s opinion, not just for the benefit of the client and my own vindication, but because until the Court of Appeal instructed Judge Symons on fundamental evidentiary law, a lot of parties in her court were going to be deprived of justice. At the oral argument on the appeal, it was clear that Esquire was going to prevail, so the parties entered into a settlement, and filed a Notice of Settlement with the Court of Appeal. That was great for Esquire, but bad for anyone who might subsequently appear in front of Judge Symons, since she would receive no indication of her errors. In the case of Ebensteiner Co. v. Chadmar Group (2006) 143 Cal.App.4th 1174, the court held that “A valid settlement between the parties renders the appeal moot to the extent that it ‘effectively extinguishes the judgment from which the appeal is taken,’ ending both the dispute and the possibility of further, effective relief from the court.” Thus, by settling the case before the opinion was issued, our performance on the case would never be vindicated, and Judge Symons would presumably continue to make the same evidentiary mistakes. (I once had an arbitration before a retired judge who had been on the bench for more than 30 years. He sustained an evidentiary objection, holding that someone who is suing for fraud cannot testify to the false statement, because it is hearsay. When I explained that testimony as to a false statement is not hearsay, since it is not offered for the truth of the matter asserted, he responded, “no one has ever explained that to me in that way before,” and reversed himself. Presumably, that meant he had been prohibiting evidence as to fraud for his 30 years on the bench. But that’s a story for another day.) I was crestfallen that pursuant to Ebensteiner Co. v. Chadmar Group , we would never have a published opinion on the important issues raised by the trial and appeal in this matter. Then, a couple of weeks later, the Court of Appeal issued its opinion. In a footnote, the Court said that it was well aware of the holding of Ebensteiner , but said, “we’ll call your Ebensteiner and raise you a Burch v. George . (OK, the Court didn’t really say that, but it was the practical effect.) In Burch v. George (1994) 7 Cal.4th 246, the California Supreme Court held that “[t]he appellate court has ‘inherent power to retain a matter, even though it has been settled and is technically moot, where the issues are important and of continuing interest.’” As I stated, I felt the issues presented by the trial and appeal were very important for Judge Symons in particular and the legal community at large. The Court of Appeal agreed, stating: “We find this appeal presents issues of public interest that promise to recur, specifically in the emerging realm of internet-based communications, online aliases, and questions pertaining to the admissibility of such evidence at trial . We therefore retain jurisdiction in order to resolve the issues presented.” The Court of Appeal explained in detail where Judge Symons had gone wrong, referring to her reasoning as “perplexing”. Where Judge Symons had gone wrong was with the application of Evidence Code sections 1552 and 1560-1563, and on the admissibility of indirect evidence and the inferences that are to be drawn therefrom. Evidence Code § 1552 We sought to introduce Yelp reviews pursuant to Evidence Code § 1552, which provides: A printed representation of computer information or a computer program is presumed to be an accurate representation of the computer information or computer program that it purports to represent. This presumption is a presumption affecting the burden of producing evidence. It’s as simple as that. Anything you see on the internet is admissible under Evidence Code § 1552, so long as you are just offering it to show that it was in the public eye. In other words, if there is an article on the internet proclaiming that bacon is health food, you can’t offer that article as proof that bacon is healthy, but it is completely admissible to show that the article exists. When a plaintiff wants to sue for defamation for a false Yelp review, he must be able to introduce the Yelp review, just to show it was posted. Of course he is not claiming that the review is true – he’s claiming it was false and defamatory – but he must be able to show that it was published. At trial, defense counsel argued we could not introduce the Yelp reviews, because we had not listed anyone on our witness list from Yelp, and therefore had no means to authenticate those reviews. Judge Symons agreed, and excluded the Yelp reviews. When I explained Evidence Code 1552 to Judge Symons, her response was, “what do computers have to do with Yelp reviews?” I then explained that when someone looks at a Yelp review on their computer, they are seeing the information that is stored on Yelp’s computer servers, and hence a printout of a Yelp review is a “representation of computer information” and is therefore admissible under section 1552. Judge Symons offered no response, but rejected the reviews anyway. With its opinion, the Court of Appeal reversed her evidentiary rulings, and explained to Judge Symons that she was wrong, holding that the Yelp reviews were unquestionably admissible under section 1552, and that no one from Yelp was required to authenticate the records. The reviews are “self-authenticating,” requiring only that the plaintiff testify that she found the reviews on Yelp’s website. Evidence Code §§ 1560, 1561, and 1562 We had also subpoenaed from Yelp, AT&T and Comcast all the business records necessary to show that the false reviews had been posted from defendant’s home and business internet accounts. Evidence Code sections 1560, 1561, and 1562 set forth the procedure for subpoenaing business records, and provide that business records obtained under these sections are admissible and presumed to be accurate. Importantly, they provide that records produced under these sections with a proper supporting declaration are every bit as admissible as if the custodian of records was there to authenticate the records. All that is necessary under these sections is that the custodian of records provide a declaration, stating that the documents and information provided are business records, responsive to the subpoena. The records from Yelp established from which IP addresses the fake reviews had been posted, and the records from Comcast and AT&T showed that they were posted from Painter’s home and office. Judge Symons rejected all of these business records, finding that they were all hearsay. She ignored these sections and used a standard hearsay analysis, concluding that, for example, where the records indicated that the false Yelp reviews were posted from the defendant’s account, that was inadmissible hearsay. The Court of Appeal reversed her rulings, holding that the records were all admissible. The law on Indirect Evidence and Inferences Evidence Code section 600 defines inference as “a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” Judge Symons ruled that the evidence could only be used to show that defendant posted the false Yelp reviews if we could establish that was, as a matter of law, the only inference that could be drawn from the evidence. Defense counsel conceded that the false Yelp reviews were posted from defendant’s home and office internet accounts, but maintained that since others had access to those computers, we could never prove beyond a preponderance of the evidence that he was the one who sat at the computers and made the postings. Judge Symons agreed. The Court of Appeal reversed Judge Symons rulings, and concluded that her view of the evidence was 180 degrees askew. In considering the admissibility of indirect evidence, she was required to resolve all presumptions, inferences and doubts in favor of plaintiff. The Court of Appeal held that Judge Symons had done precisely the opposite. She erroneously required that we prove the inferences were the only possible result, as a matter of law. The Court of Appeal used the Comcast records as an example. The false reviews had been posted from a certain IP address on a Comcast account belonging to the defendant. Before we were hired, prior counsel had subpoenaed the records from Comcast, but by the time they hit Comcast with the subpoena, the records for that specific date were no longer available. But Comcast could provide the records beginning 11 days later. Sure enough, 11 days after the false reviews were posted from the known IP address, that IP address was still assigned to defendant. The question was whether a juror could connect the dots and conclude that defendant had that same IP address 11 days prior, and therefore was the one who had posted the false reviews. Judge Symons ruled that we could never bridge that gap, even though our expert testified that the odds were one in four billion that defendant would just happen to get the same IP address 11 days later. The Court of Appeal reversed that ruling, holding that Judge Symons ignored the clear inference in favor of plaintiff. A jury COULD connect the dots and conclude that the defendant had posted the false Yelp reviews, and therefore all of the IP information was admissible. The verdict was completely reversed , and Esquire can now proceed to trial with a new judge. It is extremely rare (unprecedented in my 30 years of practice) for a Court of Appeal to render an opinion on a case that has been settled, but the Sixth District recognized the extreme importance of clearing up the evidentiary issues that had plagued the trial judge in this case. And equally unprecedented, due in part to Judge Symons’ horrible performance during this case, she was publicly censured by the Commission on Judicial Performance, and left the bench. Anti-SLAPP Cases And fear not; in Episode 20 of the California SLAPP Law Podcast, we also discuss a couple of anti-SLAPP decisions in the context of these Evidence Code sections. We review the case of Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138. That case also involved issues concerning the inferences that can properly be drawn from indirect evidence. In Fashion 21 , the plaintiff clothing manufacturer sued an individual named Narro, claiming he passed out defamatory flyers about the company during a demonstration. Narro filed an anti-SLAPP motion, claiming that he had never passed out any of the allegedly defamatory flyers. On that basis he argued that the plaintiff Fashion 21 would never be able to meet the second prong of the anti-SLAPP analysis — more likely than not to succeed on the action — because it would never be able to prove that he passed out the flyers. The trial court and Court of Appeal disagreed, based on a video wherein Narro was seen holding a stack of the flyers, while people around him stood reading those flyers. The Court of Appeal concluded that a jury COULD conclude that Narro had been passing out the flyers, and that is all that is required to make the evidence admissible. That conclusion was to no avail for Fashion 21, because the Court of Appeal concluded that the flyers were not defamatory, but it held in clear terms that this sort of indirect evidence is sufficient. On the issue of admissibility of internet sites, we examine the case of Ampex Corp. v. Cargle (2004) 128 Cal.App.4th 1569. There, a company called Ampex sued an anonymous person who posted comments on a Yahoo discussion site. Ampex sued for defamation to learn the identity of the defendant, but the defendant Cargle said “here I am” and responded to the lawsuit with an anti-SLAPP motion. To satisfy the first prong of the anti-SLAPP analysis, he demonstrated that Ampex was a matter of public interest by attaching print-outs of the Yahoo site, showing that 112,000 comments had been posted about Ampex. Ampex decided to dismiss the action, but that left the issue of Cargle’s attorney fees for the anti-SLAPP motion, which mandated a determination as to whether the anti-SLAPP motion would have been granted if allowed to go forward. The trial judge denied the attorney fees, stating that he never would have granted the anti-SLAPP motion based on the print-outs of the Yahoo site, holding they were inadmissible hearsay. Apparently Judge Symons isn’t the only judge who doesn’t understand Evidence Code section 1552. On appeal, the Court of Appeal, verbally pulling out its hair, stated that OF COURSE the print-outs of the Yahoo pages were admissible. Cargle was in no way offering the documents to prove the truth of the matter asserted, so hearsay was not an issue. The Court held that the Yahoo documents were self-authenticating under Evidence Code section 1552, since they were offered only to show their existence in the public eye. On that basis, the Court of Appeal held that the anti-SLAPP motion would and should have been granted if the motion had gone forward, and ordered the trial court to award Cargle attorney fees.…
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California SLAPP Law
1 SLAPP019 – Five Best Published Anti-SLAPP Decisions (so far) in 2016 39:15
39:15 나중에 재생 나중에 재생 리스트 좋아요 좋아요39:15
나중에 재생 나중에 재생 리스트 좋아요 좋아요On Episode 19 of the California SLAPP Law Podcast, we go through my five favorite reported anti-SLAPP decisions from the first half of 2016. But first we begin with a cautionary tale of an attorney who is being sued for malpractice for failing to have me review his complaint before it was filed! (OK, there’s a back story here, so be sure to listen to this episode to find out what I’m talking about.) Then, we turn to the five best published anti-SLAPP decisions from the first half of 2016. The bold cases are the top five; the non-bolded are other cases I discuss as well. Lanz v. Goldstone (2015) 243 Cal.App.4th 441 Another cautionary tale, this time of an attorney who followed the old adage, “the best defense is a good offense.” He tried to intimidate an attorney from seeking his legal fees, and bought himself a malicious prosecution action in the process. You’ll learn a lot about malicious prosecution actions and under what circumstances they can survive an anti-SLAPP motion. Bertero v. National General Corp. (1974) 13 Cal.3d 43 Speaking of malicious prosecution actions, this is the seminal case. Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135 “When the proceeding terminates other than on the merits, the court must examine the REASONS for termination to see if the disposition reflects the opinion of the court OR THE PROSECUTING PARTY that the action would not succeed.” Karnazes v. Ares (2016) 244 Cal.App.4th 344 Speaking of over-pleading, our second case is Karnazes v. Ares , decided by the Second District in January of 2016. In this case, the plaintiff alleged 22 – count em – 22 causes of action against the defendants. Karnazes lost to an anti-SLAPP motion, but made some interesting arguments in opposition to that motion. Sweetwater Union School District v. Gilbane Building Company (2016) 245 Cal.App.4th 19 Are political bribes protected by the anti-SLAPP statute? Listen to find out (and the answer will likely surprise you). And find out how you can support an anti-SLAPP motion with declarations without using declarations. Crossroads Investors v. Federal National Mortgage Association (2016) 246 Cal.App.4th 529 It may look like litigation, and it may quack like litigation, but that doesn’t necessarily make it litigation for purposes of the litigation privilege and the first prong of the anti-SLAPP analysis. JM Manufacturing v. Phillips & Cohen (2016) 247 Cal.App.4th 87 Yet one more action against an attorney; in this case an attorney who was so proud of his firm’s trial victory that he published a press release and bought the firm a defamation action. It was a split decision. And finally, in the after show, I provide an appeal tip that might save you from some embarrassment.…
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California SLAPP Law
1 SLAPP018 – All You Need to Know About Anti-SLAPP Motions in Federal Court 31:13
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나중에 재생 나중에 재생 리스트 좋아요 좋아요In episode 18 of the California SLAPP Law Podcast, I discuss an anti-SLAPP motion I decided NOT to pursue, and why. We discuss the case of Weinberg v. Feisel (2003) 110 Cal.App.4th 1122. Then we dive deep into the pros, cons, and frustrations of bringing anti-SLAPP motions in Federal Court. Since 1999, the Ninth Circuit has recognized that the California anti-SLAPP statute can be applied to cases in Federal Court, but the motion you bring there is a very different animal from what is pursued in State Court. As part of our discussion on anti-SLAPP motions in Federal Court, we cover the following cases: Erie Railroad Company v. Tompkins (1938) 304 U.S. 64 Swift v. Tyson (1842) 41 U.S. 1 United States Newsham v. Lockheed Missiles and Space Co. (1999) 171 F.3d 1208 Makaeff v. Trump University (2013) 715 F.3d 254 Verizon Delaware, Inc. v. Covad Communications (2004) 377 F.3d 1081 Globetrotter Software, Inc. v. Elan Computer Group (2004) 362 F.3d 1367…
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California SLAPP Law
1 SLAPP017 – An Introduction to California SLAPP Law and Anti-SLAPP Motions 29:48
29:48 나중에 재생 나중에 재생 리스트 좋아요 좋아요29:48
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 17 of the California SLAPP Law Podcast, we go back to basics, with an introduction to the fundamental concepts behind California’s SLAPP Law and anti-SLAPP motions. The good news is that although it took some 25 years for attorneys to begin recognizing the impact of California’s anti-SLAPP statutes on litigation in the state, they are now aware of the statute (sometimes painfully so). But it is clear that there are still some misconceptions about the law, including the fundamental terminology and procedures. Listen to this episode, and you’ll have a great understanding of what a SLAPP is, and what sort of activities fall under that anti-SLAPP statutes. I also discuss a great new service I found, that is now a sponsor of the California SLAPP Law Podcast. For quite some time, I have made it a practice to begin reading the tentative rulings from a court, once I decide I will be bringing a motion in that court. For example, if I know I’m going to be bringing a motion for summary judgment in the courtroom of Judge Banks in Orange County, I’ll start looking for tentative rulings related to motions for summary judgment by Judge Banks. Just as an attorney who is going to bring a motion for summary judgment will likely call up a prior motion and use it as a starting point, over the years judges (or their research attorneys) develop language and case references they use when granting or denying a particular type of motion. Often the cases cited by the judge will not appear in the motion papers, but rather are decisions that the judge has located and relies upon. Knowing which cases a judge favors in ruling on a motion greatly assists in crafting such a motion. In drafting the motion, I can then either embrace decisions that the judge has cited in the past that support my position or strive to refute them. Looking at prior rulings by the judge can also provide a heads up about the judge’s propensities as regards a particular type of motion. For example, in contemplation of bringing a motion to compel in a particular court, I started looking at the tentative rulings from that court. The judge had reached the unusual conclusion that when bringing a motion to compel discovery responses, any request for sanctions has to be brought in a separate motion. In reviewing the tentative rulings, I saw that no attorney was granted sanctions, because no attorney would ever contemplate that they should bring a sanction request in a separate motion. Knowing this, when it came time for me to bring my motion to compel, I filed a separate motion for sanctions. Come hearing day, I was the only attorney granted sanctions on a motion to compel. In another case, where I filed an anti-SLAPP motion, I checked the tentative rulings and found that the judge had reduced an attorney’s fee request by 75% because the attorney had not used proper Bluebook citations (although the judge also indicated that the attorney could have followed the California Style Manual). Why would a judge reduce fees by 75% just because of improper citation formatting? You can listen to episode 17 of the California SLAPP Law Podcast find out, but the real answer is that ours is not to reason why; ours is to read the court’s tentative rulings so that we have advanced notice of the judge’s eccentricities. The problem, however, with checking the tentative rulings is that they are generally only posted for a week. The number of tentative rulings available to you are limited unless you decide weeks in advance to begin researching the judge on a particular motion. That’s where BenchReporter.com comes in. Their database goes back to at least 2014. You really don’t want to go back too far because obviously the law changes, but going back a year or two gives a nice sized sampling of the judge’s view of a particular motion. You just type in the judge, and the motion you’re interested in, and BenchReporter.com returns all the matching tentative rulings. Go to BenchReporter.com to see what they have to offer. If you do decide to subscribe, use the discount code toplawfirm to save $10. [ UPDATE: Use the discount code toplawfirm, and you can try the Bench Reporter service for a month FOR JUST $1.] In today’s episode, as part of a basic primer on anti-SLAPP law, we discuss three cases, having to do with the topic of what makes an act or speech a matter of public interest under the anti-SLAPP statute: Cabrera v. Alam (2011) 197 Cal.App.4th, where the plaintiff sued the defendant for statements made about the plaintiff’s homeowners association candidacy at an HOA meeting. The candidate brought an anti-SLAPP motion that was denied by the trial court, but the Court of Appeal reversed, finding that the defendants comments were protected under section 425.16(e)(3), which protects “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest”. The court found (1) that the qualifications of an HOA candidate are an issue of public interest, and (2) that the candidate was a limited public figure, and therefore had to prove that the statements were made with malice. I explain why the Cabrera court reached the right conclusion for the wrong reasons. Statements made at an HOA meeting fall under 425.16(e)(2), and therefore are automatically a matter of public interest. Optional Capital, Inc. v. Das Corporation , (2014) 222 Cal.App.4th 1388, where the court specifically stated: “if the speech is made or the activity is conducted in an official proceeding authorized by law, IT NEED NOT BE CONNECTED TO A PUBLIC ISSUE” (emphasis added). And lastly, Grenier v. Taylor (2015) 234 Cal.App.4th 471, which discusses the conventional wisdom of the scope of an issue, in order for it to be a matter of public interest: “Public interest” protected by the anti-strategic lawsuit against public participation (SLAPP) statute is not mere curiosity, and a matter of “public interest” should be something of concern to a substantial number of people. This conventional wisdom is what gets some parties and their attorneys in trouble, because they think there has to be some critical mass of people involved before an issue falls under the anti-SLAPP statute. As explained in this episode, some speech is automatically protected even if it involves one defendant complaining about one plaintiff.…
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California SLAPP Law
In Episode 16 of the California SLAPP Law Podcast, we discuss (1) when you can join with another defendant’s anti-SLAPP motion, and whether it is a good strategy to do so; (2) what the Courts of Appeal are doing to deal with all the appeals from anti-SLAPP motions; and (3) likely changes to the automatic right of appeal. We dive deep into the case of Hewlett-Packard Co. v. Oracle (2015), in which the Sixth District decried the abuse of the automatic right of appeal from rulings on anti-SLAPP motions, and took the unusual step of suggesting to the California Legislature how it could be fixed. The California Society of Entertainment Lawyers has offered the change set forth in the decision as a proposal to the legislature via the Conference of California Bar Associations. We also discuss the cases of Decker v. UD Registry, Inc. and Barak v. Quisenberry Law Firm , and examine their very different views on whether one defendant can join another defendant’s anti-SLAPP motion. Finally, in the post show, I introduce you to a brand new service that provides access to prior tentative rulings of trial court judges, which are a great resource when preparing important motions that will be heard by those judges.…
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California SLAPP Law
1 SLAPP015 – It’s Never Too Late to File an Anti-SLAPP Motion 30:00
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나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 15 of the California SLAPP Law Podcast, we discuss (1) the perils of overreaching in your anti-SLAPP motions (making iffy challenges to causes of action can come back to bite you, even if you win), and (2) why you should NEVER assume it’s too late to bring an anti-SLAPP motion , and some strategies to keep in mind when you do bring an anti-SLAPP motion late in the game. We also discuss the case of Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, which held [spoiler alert] that no leave is required to file a late anti-SLAPP motion. We examine two cases that discuss whether it is an abuse of discretion to refuse to consider a late anti-SLAPP motion. Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 held that it is never an abuse of discretion for a trial court to refuse to consider a late-filed anti-SLAPP motion, regardless of the merits, and Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, which held that it can be an abuse of discretion to allow an anti-SLAPP motion to be brought too late in the action. (But the title says it’s never too late to file an anti-SLAPP motion. How can you reconcile that with the holding of Platypus ? Listen to Episode 15 to find out!)…
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California SLAPP Law
1 SLAPP014 – Interaction Between the Communications Decency Act and Anti-SLAPP Motions 24:49
24:49 나중에 재생 나중에 재생 리스트 좋아요 좋아요24:49
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 14 of the California SLAPP Law Podcast, we begin with a discussion of the interplay between anti-SLAPP motions and the Communications Decency Act. The topic came up because of another anti-SLAPP victory we enjoyed this week at Morris & Stone. The anti-SLAPP motion we brought on behalf of our client had nothing to do with the Communications Decency Act, but the Plaintiff was also suing Yelp and RipOffReport in the same action, and they both disposed of the action with anti-SLAPP motions based on the CDA. I would have thought this had been put to bed long ago, but I still see attorneys suing websites for content posted by third parties, so I thought we’d discuss that a little. Our anti-SLAPP motion was granted by Judge Jeffrey Glass in the Orange County Superior Court. Take a listen for my (favorable) impressions of Judge Glass, based on the cases I have had in front of him. In one such case, I represented a defendant who had created a spam filter, and was sued by a company because his spam filter determined that this company was sending out spam emails. In that case, Judge Glass used the “fuzzy bunny test” to determine if the CDA only protects content based spam filters. Listen to Episode 14 to learn the details of this important test. Here’s what the CDA says about spam filters: Section 230(c)(2) provides that “[n]o provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Next, we review the CDA and third party content. We discuss the case of Global Royalties, Ltd v. Xcentric Ventures, where the plaintiff argued that the CDA did not protect information published by a third party on a website, since the website encouraged defamatory speech. We also discuss the case of Batzel v. Smith, where an individual sent a defamatory letter to an organization, and that organization liked the letter so much, it posted it on its website. In that case, the court found that the website was not protected by the CDA, because the person who sent the letter had not intended for it to be published. We conclude with a discussion of the Santa Monica 11, who sought to block a ballot measure, and are now on the hook for $31,000 in attorney fees following a successful anti-SLAPP motion…
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California SLAPP Law
1 SLAPP013 – Bench Warrant Arrest Not Protected Activity under Anti-SLAPP Statute 30:07
30:07 나중에 재생 나중에 재생 리스트 좋아요 좋아요30:07
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 13 of the California SLAPP Law podcast (should I have skipped 13, like they do in buildings?), we cover a lot of information that will be useful to any litigator. Although not directly related to SLAPP law and anti-SLAPP motions, I discuss how and when to bring the various trial motions; Motion for Nonsuit, Motion for Directed Verdict, and the most powerful motion that no one seems to have heard of, the Motion for Judgment. If you’ve ever been confused about which ones are used in bench trials versus jury trials, when they should be brought, and which one is best to use, this podcast will clear it all up. Then we move onto two recent anti-SLAPP rulings. The first is Makaeff v. Trump University, LLC (9th Cir.) 715 F. 3d 254. I discussed this case back in Episode 9, but there has been a new development. As you may recall, Makaeff took some business courses at Trump University, but then later sued, claiming the classes. Trump University countersued, claiming that Makaeff’s criticism of Trump University amounted to defamation. Makaeff responded to the suit with and anti-SLAPP motion. The district court denied the anti-SLAPP motion, but that denial was reversed on appeal. Now the victorious party on her anti-SLAPP motion, Makaeff brought a motion for attorney fees. We discuss the number of hours Makaeff’s attorneys claimed to have spent on the anti-SLAPP motion and appeal, the opposition to the motion for attorney fees, and how the court responded. In that context, we discuss Serrano v. Unruh (1982) 32 Cal.3d 621, wherein the California Supreme Court held that where an attorney overreaches in a fee application, fees can be denied in their entirety. Serrano cited to the following cases in reaching that conclusion. See, e.g., Copeland v. Marshall , 641 F.2d 880, 902-903 [not allowable are hours on which plaintiff did not prevail or “hours that simply should not have been spent at all, such as where attorneys’ efforts are unorganized or duplicative. This may occur … when young associates’ labors are inadequately organized by supervising partners”]; Gagne v. Maher , 594 F.2d 336, 345 [excessive time spent]; Lund v. Affleck (1st Cir. 1978) 587 F.2d 75, 77 [if initial claim is “exorbitant” and time unreasonable, court should “refuse the further compensation”]; Reynolds v. Coomey (1st Cir. 1978) 567 F.2d 1166, 1167 [duplication of effort]; Farris v. Cox (N.D.Cal. 1981) 508 F.Supp. 222, 227 [time on fee petition denied for “overreaching”]; Vocca v. Playboy Hotel of Chicago, Inc. (N.D.Ill. 1981) 519 F.Supp. 900, 901-902 [fee denied in entirety on ground of counsel’s dilatoriness and hours claimed for clerical work]; Jordan v. United States Dept. of Justice (D.D.C. 1981) 89 F.R.D. 537, 540 [fee denied in entirety on ground of unreasonable request and inadequate documentation]. Next, we discuss Anderson v. Geist (2015) (no citation yet available). In Anderson, two deputies executed a bench warrant on a woman, not realizing the warrant had been withdrawn. The woman sued for defamation and a number of other claims. The deputies responded with an anti-SLAPP motion, claiming that the arrest was protected activity. Listen to the podcast to see if that strategy worked.…
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California SLAPP Law
1 SLAPP012 – Three Ways to Bring an Anti-SLAPP Motion Against an Ambiguous Complaint 26:56
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나중에 재생 나중에 재생 리스트 좋아요 좋아요Sometimes you just know that a SLAPP is hiding in the complaint, but the complaint is so ambiguous that the SLAPP allegations are unclear. What to do? In this episode, I tell you how to file an anti-SLAPP motion against an ambiguous complaint, which sometimes involves first beating it into shape. I have three approaches, which I call Demurrer, Discovery and Damn the Torpedoes. 1. Demurrer Approach. As you can probably guess, the demurrer approach uses a demurrer to the complaint as the means to force plaintiff/cross-complainant to better set forth the SLAPP allegations. In one case, I sent a demand letter and draft complaint to defendant, demanding the amount owed to my client. When defendant did not respond, I filed and served the complaint. Defendant responded with a cross-complaint, alleging a cause of action for Intentional Infliction of Emotional Distress (“IIED”). In the general allegations of the cross-complaint, defendant made reference to the demand letter and draft complaint, and those allegations were incorporated into the claim for IIED, but it was very unclear what defendant was claiming has caused him the emotional distress. If he was asserting that the letter and draft complaint were the culprits, those would be protected under the litigation privilege, and the cross-complaint would be a clear SLAPP. I demurred to the cross-complaint, and defendant took the bait. His attorney filed a first amended cross-complaint, and this time made very clear that the letter and draft complaint had caused the stress. I was then able to file the anti-SLAPP motion, which was granted. 2. Discovery Approach The downside to the demurrer approach is that you may run into a lazy judge, who declines to rule on the demurrer, telling you instead to “flesh out” the meaning of the allegations with discovery. If your demurrer is overruled, then it is likely you will by then be beyond the 60-day deadline for bringing your anti-SLAPP motion, and will have to seek permission. Instead, if you act quickly, you can complete a round of discovery before the deadline for having to file the anti-SLAPP motion. That discovery can nail down the meaning behind the allegations of the complaint, and the responses can be used to support the anti-SLAPP motion. 3. Damn the Torpedoes Finally, there is the Direct Approach, which I refer as “Damn the Torpedoes”. In the case of an anti-SLAPP motion I filed this week, the complaint alleges a claim for Intentional Interference with Prospective Economic Advantage. Plaintiff alleges only that my client spoke to others, and those conversations interfered with the business. In this case, my client knows who he talked to, so we can fill in the blanks without the need for a demurrer or discovery. In essence, the anti-SLAPP motion sets forth the details left out of the complaint. It identifies who my client contacted, and then shows why each of those conversations is privileged. The worst that could happen is that plaintiff will make a false claim that someone else was contacted, but that still has value, since early in the action we will have forced plaintiff to put his cards on the table. Listen to the podcast for a far more detailed discussion, including the pros and cons, for each approach.…
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California SLAPP Law
1 SLAPP011 – Six Tips to Win Your Motion for Attorney Fees Following an Anti-SLAPP Motion 26:16
26:16 나중에 재생 나중에 재생 리스트 좋아요 좋아요26:16
나중에 재생 나중에 재생 리스트 좋아요 좋아요In Episode 11 of the California SLAPP Law Podcast, I provide you with six tips to win your attorney fee motions following a successful anti-SLAPP motion. There are so many unscrupulous attorneys who inflate their fee applications, that some judges feel the need to reduce the fees requested on any motion for attorney fees. To make sure you don’t get lumped in with the other attorneys, here are the ways to show the judge that every dollar is justified. In other news, I bring you up to speed on Demetriades v. Yelp , which was discussed in Episode 10. Demetriades is suing Yelp to enjoin it from falsely advertising that its reviews are trustworthy. Yelp brought an unsuccessful anti-SLAPP motion, and even though the Court of Appeal held that the anti-SLAPP motion should be denied, Yelp is not going quietly into the night. It is seeking review by the Supremes. Finally, we discuss a very entertaining case at Morris & Stone. As discussed in Episode 9, a company filed a bogus lawsuit against our client in an attempt to prevent him from competing. We responded with an anti-SLAPP motion, which stayed all discovery. The plaintiff is not pleased, since it wanted to use discovery to harass our client. I predicted that it also would not go quietly into the night, and that it would seek relief from the discovery stay. You’ll hear the arguments plaintiff’s counsel (unsuccessfully) made as to why the discovery stay does not apply to them. I’ll show you how I defeated their ex parte application as well.…
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California SLAPP Law
In this week’s podcast, we look at two unsuccessful anti-SLAPP motions that were decided this week, and examine where the attorneys went wrong. Yelp continues to get into mischief. In Episode 4 of the California SLAPP Law Podcast, we discussed the case of Yelp v. McMillan Law Group , wherein Yelp is suing a law firm, claiming that it posted fake reviews, and that Yelp was damaged as a result. McMillan Law Group filed an anti-SLAPP motion, and we are awaiting the results. Now, in the case of Demetriades v. Yelp , the tables have been turned, and the plaintiff is essentially suing Yelp for its fake reviews about itself. Yelp tries to promote the notion that its reviews are filtered and trustworthy, despite all evidence to the contrary. Demetriades, who has had several bogus reviews written about his restaurant, didn’t try to sue Yelp for those bogus reviews, but instead sued Yelp for claiming that reviews on the site are trustworthy. Yelp brought an anti-SLAPP motion, which was DENIED . We also examined Douglas Gotterba v. John Travota , where Travolta’s former pilot from the 80’s has decided to publish a tell-all book about Travolta, that apparently alleges a homosexual lifestyle. When Travolta threatened to sue, claiming Gotterba was subject to a confidentiality agreement, Gotterba did exactly what you are supposed to do, and filed a declaratory relief action. Basically, Gotterba is simply asking a court to determine if he is in fact subject to a confidentiality agreement. If so, he will slunk away into the night. If not, then he will be free to publish the book. Great solution, right? Not according to Travolta’s attorneys. they claimed that Gotterba’s action was really just an attempt to get Travolta’s attorneys to stop sending warning letters to publishers. Since pre-litigation letters are privileged, they brought an anti-SLAPP motion against the declaratory relief action. The Court of Appeal ruled that the letters may have triggered the action, but they are not the basis of the action. Motion DENIED .…
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California SLAPP Law
It was a great anti-SLAPP week at Morris & Stone. Today we discuss two of our motions, and the result of last week’s Evil Yogurt Maker case. We will examine the scope of discovery following the filing of an anti-SLAPP motion, and apply those standards to a pending motion. Specifically, I discuss the case of Britts v. Superior Court (2006) 145 Cal.App.4th 1112. In Britts , the defendant filed an anti-SLAPP motion on the same day that his opposition to a motion to compel was due. He argued that under the plain wording of CCP section 425.16(g), the motion stays all discovery “proceedings”, and therefore he was not required to file any opposition to the motion. The trial court disagreed, and granted the unopposed motion to compel, and awarded $5,000 in sanctions. Britts took the matter up on a writ, and the Court of Appeal ordered the trial court to vacate the ruling on the motion to compel and for sanctions, holding that the statute means exactly what it says; an anti-SLAPP motion stops all discovery proceedings, including any pending discovery motions. The trial court had also made a strange ruling (on an earlier anti-SLAPP motion in the case) that the defendant was not entitled to all the attorney fees incurred on the motion, because he had failed to meet and confer with opposing counsel. In other words, the court felt that if plaintiff’s counsel had simply been informed that one of the causes of action was a SLAPP, the complaint could have been amended and the motion avoided. That was not a holding from the case, but I explain why that reasoning is terrible and, if followed, could constitute malpractice. I also discuss the case of Blanchard v. DirecTV (2004) 123 Cal.App.4th 903. In Blanchard, the court deliniated the scope of permissible discovery after an anti-SLAPP motion has been filed. As set forth in CCP section 425.16(g), a plaintiff must show good cause before taking ANY discovery after an anti-SLAPP motion has been filed. Good cause means ONLY discovery relevant to the Plaintiff’s burden of establishing a reasonable probability of prevailing on the claim. Discovery that is NOT relevant to a legal defense being asserted by the Defendant in the anti-SLAPP motion is not permitted. Given that Blanchard permits only discovery related to potential defenses by the defendant, the case of Balzaga v. Fox News (2009) 173 Cal.App.4th 1325 came to the logical conclusion that if a plaintiff seeks leave to pursue discovery on a given defense, the defendant can prevent that discovery by informing the court that it is waiving that defense. Finally, I discuss the case of Tutor-Saliba Corp v. Herrara (2006) 136 Cal.App.4th 604. This case sets forth the discretionary standard for granting leave to permit discovery following the filing of an anti-SLAPP motion, and held that a trial court’s decision to disallow discovery “will not be disturbed unless it is arbitrary, capricious, or patently ABSURD.” (Emphasis added.)…
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California SLAPP Law
1 SLAPP008 – An Anti-SLAPP Motion Against an Evil Yogurt Shop 21:33
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나중에 재생 나중에 재생 리스트 좋아요 좋아요A client found me while searching for information about California Code of Civil Procedure section 425.17, proving that clients do some very sophisticated research on their legal issues. Changing the facts to protect the privacy of my client, he had warned the public about an evil yogurt maker who was falsely claiming to sell organic yogurt, and for that good deed he was hit with a lawsuit for defamation and interference with business. In today’s podcast, we discuss the elements of CCP section 425.17, which under the proper circumstances will exempt a business versus business claim from the anti-SLAPP statute. In the most basic sense, section 425.17 applies when one business is talking about another business’s goods or services, AND the audience that the business is talking to consists of potential customers, AND the point of the talking is to promote the speaker’s own business. Will section 425.17 defeat the anti-SLAPP motion, and allow the evil yogurt maker to go forward with his bogus defamation claim? Listen to episode 8 of The California SLAPP Law Podcast and find out. Case cited: Sharper Image Corporation v. Target Corporation , 425 F.Supp.2d 1056 (N.D. CA 2006). In this case, Sharper Image, m anufacturer of tower air purifier brought action against Target, manufacturers and retailers of competing product, alleging patent and trade dress infringement. Target moved for summary adjudication of plaintiff’s claims and their counterclaims for non-infringement of the asserted patents. Sharper Image separately moved to strike defendants’ tort and state law counterclaims, and in the alternative, moved for judgment on the pleadings of the counterclaims, and for partial summary adjudication on its utility patent infringement claim. Of note for today’s discussion, the court found that the anti-SLAPP motion was excluded by CCP section 425.17, but nonetheless threw out the claim under the alternative motions.…
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California SLAPP Law
1 SLAPP007 – Proving Actual Malice in a Defamation Action – Makaeff v. Trump University 28:23
28:23 나중에 재생 나중에 재생 리스트 좋아요 좋아요28:23
나중에 재생 나중에 재생 리스트 좋아요 좋아요A great anti-SLAPP decision that has been five years in the making. In this podcast, we discuss the case of Makaeff v. Trump University , which contains an outstanding discussion of limited public figures and meeting the standard for showing actual malice. Here are the facts: Between August 2008 and June 2009, Tarla Makaeff attended approximately seven real estate investing and finance seminars, workshops, and classes hosted by Trump University and spent a total of approximately $60,000 on the programs. Although Trump University asserted Makaeff was satisfied with the services Trump University provided to her, noting that Makaeff frequently provided excellent reviews of the programs, Makaeff stated the Trump University programs she attended were unsatisfactory. Specifically, Makaeff alleged the programs were shorter than advertised, she was provided only a toll-free telephone number instead of a one-year mentorship of “expert, interactive support,” and her Trump University mentors were largely unavailable and offered no practical advice when she did speak with them. In addition, Makaeff alleged she was told by Trump University staff to raise her credit card limits to purchase real estate, but once she did, she was pressured by Trump University staff to instead use her elevated credit to purchase the Trump Gold Elite seminar for $34,995. Makaeff also claimed she was told by Trump University staff that her first real estate transaction after signing up for the Trump Gold Elite program would earn her approximately the amount she spent on the Trump Gold Elite program, which it did not. Additionally, Makaeff alleged Trump University instructed her to engage in illegal real estate practices, such as posting advertising “bandit signs” on the sides of roadways. On June 18, 2009, Makaeff received a letter from the Orange County District Attorney’s Office informing her that posting bandit signs in California without lawful permission could subject her to fines, a misdemeanor charge, and up to six months in jail. Makaeff brought a class action lawsuit against Trump University on April 30, 2010. On May 26, 2010, Trump University filed a defamation counterclaim against Makaeff, alleging Makaeff “published statements to third parties about Trump University orally, in writing and on the Internet that are per se defamatory, including many completely spurious accusations of actual crimes.” Trump University alleged Makaeff’s defamatory statements were a substantial factor in causing actual and significant economic damages amounting to or exceeding $1,000,000. Madaeff responded with an anti-SLAPP motion, which was originally denied, but on appeal the Ninth Circuit determined that Trump University was a limited public figure, and send the case back to the District Court for a determination as to whether Trump University could still state a prima facie case, given the higher “actual malice” standard. How was the case decided? Listen to the podcast to find out. Cases discussed in the podcast (in bold), taken from the opinion: To prove actual malice, a defamation plaintiff must show by clear and convincing evidence that the defendant knew her statements were false at the time she made them, or that she acted with reckless disregard of the truth or falsity of the statements made. Gertz v. Robert Welch, Inc. , 418 U.S. 323, 328, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). The clear and convincing standard “requires that the evidence be such as to command the unhesitating assent of every reasonable mind.” Rosenaur v. Scherer , 88 Cal. App. 4th 260, 105 Cal. Rptr. 2d 674, 684 (Ct. App. 2001). “A defamation plaintiff may rely on inferences drawn from circumstantial evidence to show actual malice.” Christian Research Inst. v. Alnor , 148 Cal. App. 4th 71, 55 Cal. Rptr. 3d 600, 612 (Ct. App. 2007) (citing Reader’s Digest Assn v. Superior Ct. , 37 Cal. 3d 244, 208 Cal. Rptr. 137, 145-46, 690 P.2d 610 (1984)). Actual malice is a subjective standard. See St. Amant v. Thompson , 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968). “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [her] publication.” Id. Actual malice “has nothing to do with bad motive or ill will,” and “may not be inferred alone from evidence of personal spite, ill will or intention to injure on the part of the writer.” Harte-Hanks Commc’ns, Inc. v. Connaughton , 491 U.S. 657, 666 n.7, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989). However, in appropriate cases, factors such as “[a] failure to investigate, anger and hostility toward the plaintiff, reliance upon sources known to be unreliable, or known to be biased against the plaintiff . . . may . . . indicate that the publisher [herself] had serious doubts regarding the truth of [her] publication.” Reader’s Digest , 208 Cal. Rptr. at 145-46 (citations omitted). Trump University claims this case is similar to Nguyen-Lam v. Cao , 171 Cal. App. 4th 858, 90 Cal. Rptr. 3d 205 (2009), in which the California Court of Appeals upheld a trial court’s conclusion that malice could be inferred “where, for example, a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.” Id. at 869 (citing Christian Research Institute v. Alnor , 148 Cal. App. 4th 71, 85, 55 Cal. Rptr. 3d 600 (2007)) (internal quotation marks omitted). Trump University argues Makaeff, like the defamation defendant in Nguyen-Lam , “has no ‘place to go for her belief’ that Trump University illegally took the property of anyone, stole anyone’s identity, or opened any credit card without approval.” (Dkt. No. 300 at 15-16.) The Court finds Nguyen-Lam distinguishable from the present matter. In that case, the California Court of Appeals considered a defamation defendant who had learned about the defamation plaintiff, then a candidate for a public position, only through media reports yet accused her of being a Communist. 171 Cal. App. 4th at 868-69. The evidence in Nguyen-Lam indicated the defamation defendant had no personal knowledge of the defamation outside of the media reports, none of which had mentioned Communism, and thus had no basis for his claim that the defamation plaintiff was in fact a Communist. Id. at 869. Trump University points to evidence of Makaeff’s anger and hostility toward Trump University, as well as a motive to get a refund, as evidence of actual malice. (Dkt. No. 300 at 17) (citing Christian Research Institute v. Alnor , 148 Cal. App. 4th 71, 84-85, 55 Cal. Rptr. 3d 600 (2007) (“anger and hostility toward the plaintiff . . . may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication”); Harte-Hanks Commc’ns, Inc ., 491 U.S. 657, 669, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (“it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry”); Widener v. Pacific Gas & Elec. Co. , 75 Cal. App. 3d 415, 436, 142 Cal. Rptr. 304 (1977) (finding an engineer’s motive of wanting to suppress the making of a film and his anger with the film’s producer “sufficient evidence from which the jury could have found that [the engineer] knew [his libelous statement about the producer] was false, or was recklessly indifferent as to whether his statement was accurate or not”)). Ruling from District Court . Ninth Circuit Opinion finding that Trump University was a limited public figure .…
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California SLAPP Law
1 SLAPP006 – CalPERS v. Moody’s – Is an Opinion Always Protected Speech Under the Anti-SLAPP Statute? 14:31
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나중에 재생 나중에 재생 리스트 좋아요 좋아요With the wisdom of a penny-stock investor trying out day-trading for the first time, the brilliant financial minds at CalPERS (California Public Employees’ Retirement System) decided to dump more than a billion dollars into three “structured investment vehicles” or SIVs, backed by subprime mortgages. After all, Standard & Poors had given these three SIVs AAA ratings, even though they were “stuffed full of toxic, subprime mortgages, home equity loans, and other types of structured-finance securities linked to subprime mortgages,” as CalPERS now alleges. As most do when they make really bone-headed investment decisions, CalPERS looked for someone to blame, and settled on Standard & Poors for that AAA rating. It sued Standard & Poors for negligent misrepresentation, asserting that the ratings company should be held responsible for the losses suffered by CalPERS. “But wait a cotton-picking minute,” said some fictional attorney representing Standard & Poors, “I read somewhere in law school that opinion is protected speech, and won’t support an action.” On that basis, Standard & Poor’s filed an anti-SLAPP motion, but a San Francisco judge denied the motion, finding that CalPERS had provided sufficient evidence to meet the second prong of the anti-SLAPP analysis. Today’s podcast examines the opinion of the Court of Appeal as regards the anti-SLAPP motion. Is an opinion about the worth and safety of an investment inherently protected opinion speech? California Public Employees’ Retirement System, Inc. v. Moody’s Investors Services, Inc ., 14 S.O.S. 2584 ( A134912). For a copy of the opinion as well as a copy of the original complaint, go here .…
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California SLAPP Law
1 SLAPP005 – Anti-SLAPP Decisions for First Quarter of 2014 22:31
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나중에 재생 나중에 재생 리스트 좋아요 좋아요We’re not even done with the fifth month of 2014, and California already has 12 reported decisions arising from anti-SLAPP appeals. In the 5th Episode of the California SLAPP Law Podcast, we discuss four anti-SLAPP decisions. Anti-SLAPP Decisions: MORIARTY v. LARAMAR MANAGEMENT CORPORATION (2014) 224 Cal.App.4th 125 — A landlord-tenant case with no particular significance other than to show the displeasure of the Court of Appeal with frivolous anti-SLAPP appeals. SCHWARZBURD v. KENSINGTON POLICE PROTECTION & COMMUNITY SERVICES DISTRICT BOARD (2014) — Cal.Rptr.3d —-, 2014 WL 1691562, 2014 Daily Journal D.A.R. 5470 — An action against a Police District that was decided on the basis of CCP section 425.17. TOURGEMAN v. NELSON & KENNARD (2014) 222 Cal.App.4th 1447 — Another case decided under section 425.17, which discusses the burden of the plaintiff when seeking to apply that anti-SLAPP exception. ROGER CLEVELAND GOLF COMPANY, INC. v. KRANE & SMITH, APC (2014) 225 Cal.App.4th 660 — Which discusses the statute of limitations for a malicious prosecution action (not as obvious as you my think), and analyzes and applies the anti-SLAPP statute.…
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California SLAPP Law
1 SLAPP004 – Anti-SLAPP Motion: Yelp v. McMillan Law Group 29:00
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나중에 재생 나중에 재생 리스트 좋아요 좋아요In this 4th episode of the California SLAPP Law Podcast, I discuss the truly strange legal action brought by Yelp against one of its former customers, the McMillan Law Group. In its complaint, Yelp alleges that it works to maintain the purity of the reviews posted on Yelp.com, and that the McMillan Law Group caused damage to Yelp by posting false positive reviews. McMillan Law Group has just responded with an anti-SLAPP motion. Together, we dissect both the Yelp complaint and the McMillan anti-SLAPP motion, and predict the outcome of the motion. Here are the cases discussed in today’s show: Romona Unified School District v. Tsiknas (2005) 135 Cal.App.4th 510. Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90. Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1559 (dissenting opinion). Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.…
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California SLAPP Law
A lot of useful information in today’s show, if I do say so myself. We discuss anti-SLAPP procedures and strategies, and what you need to know about the 60 and 30 day deadlines for anti-SLAPP motions, and an easy and efficient way to protect your anti-SLAPP motion if the court clerk won’t set the hearing in 30 days or less. I show you why it can be risky to amend a complaint, and why using a motion to supplement might be a better bet. And we even discuss some tips for appeals and motions for summary judgment, as well as a free WordPerfect app for your iPad.…
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California SLAPP Law
1 SLAPP002 – Can Claims Against Lawyers Be Defeated with an Anti-SLAPP Motion? 21:42
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나중에 재생 나중에 재생 리스트 좋아요 좋아요In the last episode of the California SLAPP Law Podcast, I explained how crucial it is for every California litigator to understand this sweeping area of the law. There is virtually no litigation practice that won’t be impacted by the anti-SLAPP statutes. If that was not persuasive enough, let me bring in a little closer to home. In today’s episode I discuss the common causes of action that are pursued against attorneys, and examine which of those have been found to fall under the anti-SLAPP statutes. Can claims against lawyers be defeated with anti-SLAPP motions? Here are the cases discussed in today’s show: BLEAVINS v. DEMAREST (2011) 196 Cal. App. 4th 1533; 127 Cal. Rptr. 3d 580. In a neighbor dispute, court determined if a party to an action can sue the opposition’s attorney for malpractice. OASIS WEST REALTY v. KENNETH GOLDMAN (2010) 182 Cal.App.4th 688; 106 Cal.Rptr. 3d 539 Does an attorney breach the duty of loyalty owed a former client when he or she actively takes a position against the former client on the same issue for which the lawyer previously had been retained, even though the lawyer is acting on his or her own behalf and there is no subsequent representation or employment? KOLAR v. DONAHUE, MCINTOSH & HAMMERTON (2006) 145 Cal. App. 4th 1532 Holding that legal malpractice actions are categorically outside the reach of the anti-SLAPP statute. ZAMOS v. STROUD (2003) 110 Cal.App.4th 60, 1 Cal.Rptr.3d 484 A malicious prosecution action can be based only on the filing of a lawsuit. PEREGRINE FUNDING, INC. v. SHEPPARD MULLIN RICHTER & HAMPTON (2005) 133 Cal. App. 4th 658 Discusses breach of fiduciary duty action against law firm and the interplay of California’s SLAPP Law.…
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California SLAPP Law
1 SLAPP001 – Why Every Litigator Must Know California SLAPP Law 35:35
35:35 나중에 재생 나중에 재생 리스트 좋아요 좋아요35:35
나중에 재생 나중에 재생 리스트 좋아요 좋아요California’s SLAPP Law provides for the use of special motions to strike , called “ anti-SLAPP motions, ” to quickly dispose of lawsuits that were filed only to improperly silence free speech or to prevent the defendant from pursuing a lawful legal remedy. But as one person put it, the 15 Legislators who passed the law failed to consider the 4,000 attorneys who would interpret it. There is a dark side to California’s SLAPP Law. It trades one form of abuse for another. It was designed to protect free speech and the right of redress, but now it keeps some legitimate cases out of court because the risks are just too high. And with its automatic right of appeal, it is used to greatly delay trials. Any anti-SLAPP motion, no matter how ill-conceived, gives the defendant an automatic right of appeal. A defendant can therefore delay a trial for a year or more just by filing an anti-SLAPP motion. Finally, with the right to attorney fees it provides, it provides unscrupulous attorneys with a mechanism that allows them to recover windfall fees. With Episode 1 of the California SLAPP Law Podcast, I take you through the history of the anti-SLAPP statutes, and explain why every California litigator must be familiar with this law.…
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