Sunday, June 5, 2016

"I Can Do Whatever the F@%k I want. I’m a Super Lawyer!"

Abuemeria v. Stephens, No. B264542 (D2d6 Apr. 27, 2016)

Justice Gilbert starts off this opinion with a little flair:

The parties in this case are neighbors. Appellants ignored Rodney King’s famous entreaty. Instead of getting along, they initiated events resulting in a brawl with respondent.

But this case isn’t set on the corner of Florence and Normandie. It’s set on the access road inside a upscale gated equestrian-oriented community just south of Simi Valley.

Anyhow, during the altercation, Plaintiff allegedly made disparaging remarks about Defendants being gay. For their own part, Defendants allegedly dropped the N-bomb and said some other bad stuff about Plaintiff’s apparently middle-eastern heritage. And one Defendant apparently said “I can do whatever the fuck I want. I’m a super lawyer—do something about it.” Which has to be the douchiest thing I’ve read in an opinion pretty much ever.* It was Plaintiff, however, that wound up getting arrested and charged. (A result of the aforementioned super-lawyering, perhaps.) But the charges were dropped when the prosecutor started to suspect that Plaintiff had the better side of the story.

One Defendant videoed the altercation on his phone. Defendants proceeded to show the video (in what Plaintiffs say was a misleadingly edited form) to various friends, relatives, law enforcement personnel, their HOA, and a TV reporter. So in addition to suing them for battery and related stuff arising from the fight and Plaintiff’s arrest, Plaintiffs also sued Defendants for IIED and defamation arising from the publication of the video. Defendants responded with an
anti-SLAPP motion, which the trial court denied.

In a pretty brief—maybe slightly too brief**— analysis, the Court of Appeal affirms because the video didn’t meet the “arising from” requirement of Code of Civil Procedure
§ 425.16(b). Because Defendants didn’t establish that Plaintiffs were anything other than ordinary private citizens, they failed to meet the “issue of public interest” requirement under § 425.16(e)(3) or (4). And indeed, nothing about the speech in question was directed to a public issue. It was instead aimed at fanning the fire of a private dispute. The court also notes briefly that a cause of action arising from a false police report is not subject to an anti-SLAPP motion.

Although it’s not super clear why, the court goes on the hold that the two causes of action also aren’t barred by the litigation privilege in Civil Code §47(b). It holds that Defendants were not privileged to disseminate the video because it had nothing to do with furthering any legitimate objectives in the litigation. 


 If any non-lawyers actually read this publication, for context, this statement is basically akin to “I can do whatever the fuck I want. I am in Whos Who Among American High School Students!I’ll spare the uttering super-lawyer a bio link, but its not too hard to find.

**A few of the statements of the law in the opinion are a little more categorical than the law probably bears out. For instance, it is true that the anti-SLAPP statute sometimes doesn’t apply to a case arising from a false police report. But that’s because of the Flatley v. Mauro, 39 Cal. 4th 299 (2006) rule, which says that an anti-SLAPP motion does not reach facially illegal conduct. But that rule comes into play only when: (i) a defendant admits the conduct, or (ii) a plaintiff proves its illegality as a matter of law. So an anti-SLAPP motion could well apply to case involving a police report that a defendant contends is true and for which the evidence is disputed. Notably, the case cited by the court—Lefebvre v. Lefebvre, 199 Cal. App. 4th 696 (2011)—applies Flatley and basically makes that point.

Similarly, although the anti-SLAPP statute might not apply to a false police report, § 47(b) almost certainly does. The Lefebvre case—which contains an extensive discussion of the similarities and differences between § 425.16(e) and § 47(b)—makes that point too. So to the extent that the claims arise from showing the video to the copsas opposed to the other publicationsthey are likely barred by § 47(b), although that doesn’t seem to be the bulk of the claim anyway.

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