California's SLAPP Law was a great idea, but it can be a minefield for the uninformed lawyer or self-represented party. Aaron Morris, from the law firm of Morris and Stone, can guide you through that minefield and keep you current on the latest SLAPP law cases, anti-SLAPP motions and strategies, and the motions for attorney fees that follow.
SLAPP032 – The 3 Most-Often Miscited Anti-SLAPP Cases
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.
SLAPP031 – A Gambler Bets Wrong on the Anti-SLAPP Statute
In 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.
SLAPP030 – Is it Defamatory to Call Someone a “Crook?”
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 Podcase, 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.
SLAPP029 – Can Attorneys Sue Their Clients for Malicious Prosecution After a Fee Dispute?
In 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.
SLAPP028 – An Exception to the Absolute Police Report Privilege?
Some 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.
SLAPP027 – When a Motion to Dismiss is a Better Strategy than an Anti-SLAPP Motion
President 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.
I’ve enjoyed listening to this podcast over and over again since 2016 or so when I discovered it. Every episode is highly informative and engaging. Wishing Aaron Morris would have continued making these.
Best podcast on California law, any subject
Each episode is packed with a ton of great information, and entertaining war stories.
Love this podcast
I'm not a lawyer, but I find anti-SLAPP law very interesting. Aaron Morris's explanations of each case are clear and concise. He masterfully walks the listener through each step and motion while pointing out silly blunders along the way. For example, in one episode Morris describes how Yelp's aggressive legal actions might backfire if they're forced to reveal the details of their review filter in discovery.