That's Not a Debate

Taylor v. Tesla, No. A168333 (D1d4 Aug. 8, 2024)

Plaintiffs in this case are also members of a class in a race discrimination class action brought against Tesla. There is a lot of discovery fighting in the class action, including over how much Tesla needs to produce regarding prior employee complaints of race discrimination. 

Outside of the litigation, Plaintiffs demanded their employment records from Tesla under some provisions of the Labor Code. Tesla stiffed them. So Plaintiffs sued Tesla under the PAGA for violating the Labor Code provisions.

Tesla responded with an anti-SLAPP motion, which was denied because the trial court found that the PAGA case—which was premised on Tesla’s failure to produce the employment records—did not arise from any protected activity.

The Court of Appeal agrees. Although there is some overlap between the class action litigation and the documents requested here, Tesla’s refusal to produce the documents is not a “written or oral statement,” so neither Code of Civil Procedure § 425.16(e)(1) or (2) apply. 

Tesla thus turns to (e)(4), which has been construed to encompass conduct. But that provision requires the conduct to be in connection with a public issue. The class action might address a significant public issue—allegations of racism at an enormous public company. But under the test in FilmOn, the conduct from which the claim arises must contribute, further, or participate in the debate on the public issue. Withholding employees’ personnel files in violation of statutory obligations to produce them does not meaningfully contribute to the public debate about racism at Tesla, so it does not satisfy that test.

Affirmed.

Calling Mr. Wilson...

Golden Gate Land Holdings LLC v. Direct Action Everywhere, A163315 (D1d1 July 13, 2022)

As they sometimes do, some animal rights Protesters created a ruckus at a horse racing Track in Berkeley. They successfully prevented a day’s worth of races. Track sued Protesters and the Organization of which they are members for trespass and interference with contract. Organization was sued on a nebulous alter ego/agent/conspiracy theory. Organization brought an anti-SLAPP motion, arguing that because it did was not alleged to have participated in the disturbance as an organization, the claims could only arise from its First Amendment protected petitioning activity. The trial court denied it.

The Court of Appeal rejects the Organization’s claim that the claims arise from petitioning. Relying on the analysis from Park, it looks to the elements of the claims. And here, the conduct that makes up those elements are the trespass on to the Track’s property. Of course, the Track would also need to plead and prove some degree of authorization/ratification/direction/etc. to put the Organization on the hook vicariously. 

But, relying on Spenser v. Mowat, Simmons v. Bauer Media Group, and Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation,  the Court finds that the claims cannot arise from that additional vicarious-liability-creating element. And indeed, the complaint doesn’t actually allege any facts that would make up that element, and the Organization submitted a declaration denying involvement. But the Court notes it is reviewing an anti-SLAPP motion, not a demurrer or summary judgment, which might properly apply. And since the trespass from which the claims arise is clearly not protected, the motion was correctly denied.

Affirmed.

Two things here. The first is a little nitpicky. The Court swats down the trespass as obviously not protected. But because that activity has what appears to be a speech or petitioning based motivation, the court needs to ask if it is “other conduct in furtherance” under § 425.16(e)(4) using the test in Wilson. That test essentially (in my words) asks if the conduct would plausibly be First-Amendment protected. Which it wouldn’t be. 

The second issue is more complicated. As I discussed in my post on Spenser, the acts that create vicarious liability could be quintessential protected activity. After all, a conspiracy is just an agreement, and much of political activism is agreeing with like-minded people in an effort to achieve a political goal. So the idea that a claim categorically cannot arise from the “conduct that allegedly established the vicarious liability” is overbroad. 

It is also inconsistent with the holding in Wilson that protected conduct is adequate to satisfy the arising from test if it “supplies one or more elements of a plaintiff’s claims.” One would be hard pressed to argue that an agreement is not an element if a civil conspiracy claim or that control is not an element in a claim grounded in agency.

Indeed, the Court seems to leave a little window open for that when it distinguishes Contreras v. Dowling, a case where an attorney was sued on a theory of vicarious liability. But the act that established vicarious liability in Contreras was the attorney’s act of communicating on behalf of a client, which is fundamentally communicative. And, unmentioned here, in Ratcliff v. Roman Catholic Archbishop of L.A., after a summary reversal by the Supreme Court, the 2/5 recently found that vicarious-liability-creating conduct did not implicate the anti-SLAPP statute. Unlike its pre-reversal opinion, it did not come to that result because legally, a claim can’t arise from that element. Instead, the Court of Appeal held that, under the facts of that case the liability-causing conduct was not actually proteced activity. Any protected activity alleged was incidental to the claim.

So if a case can arise from conduct creating vicarious liability, provided that such conduct is sufficiently communicative, the question remains: is that the case here? As the Court notes, the track didn’t plead anything in this regard—it just listed a series of conclusory theories of vicarious liability. But Wilson says in examining what a claim arises from, we also need to consider evidence submitted by the moving defendant. Here, the pleading is silent and the only evidence appears to be an uncontradicted declaration that the Organization engaged in regular old First Amendment advocacy stuff and did not command or solicit the trespass. If that’s the case, then, per Wilson, the Organization has made a prima facie case that the claim arises from protected activity. 

Would not be surprised to see a review petition out of this one.

Television and the Public Interest

Musero v. Creative Arts Agency, LLC, No. B305066 (D2d7 Dec. 15, 2021)

This is a Desny case where plaintiff, a screen Writer, accuses his former Agent of stealing an idea for a TV show called Main Justice and giving it to his other more-famous, client. Agent filed an anti-SLAPP motion, which the trial court denied, finding that Writer came forward with enough evidence to show a shot at success on the merits. The Court of Appeal affirms, but for a different reason.

None of the activity in this case involves speech in a public forum. So the Defendant needs to show that acts that make up an essential element of plaintiff's claim are "other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Code Civ. Proc. § 415.16(e)(4). 

As the Supreme Court explained in Wilson v. CNN, (e)(4) encompasses two general types of “other conduct.” (1) Non-speech Conduct that its itself expressive, e.g., “the burning of flags, the wearing of armbands, and the like”; and (2) conduct that is not, in itself, inherently expressive, but which “facilitates expression.” The Court of Appeal here does not focus on that distinction here. But in finding the (e)(4) test satisfied, the Court describes that relevant conduct as Agent's alleged “participation in the creation and development of” the other version of Main Justice. That seems to view the conduct as expressive. As that conduct makes out Desny's element of the use of the idea in breach of an implied agreement to pay for use, the “arising from” part of (e)(4) is satisfied.

But (e)(4) also requires the conduct to relate to public issue. The trial court thought it was satisfied because the “other” Main Justice was supposedly about Eric Holder and his role as the first Black U.S. Attorney General, which is an issue of public concern. As the Court of Appeal explains, however, that runs afoul of FilmOn v. Doubleverify, which seeks to avoid overgeneralization in the public issue inquiry. FilmOn requires a close examination of the public interest in the context of the facts of the case, looking to the speaker, the audience, and the purpose of the speech. This case isn't about the public exhibition of a TV show about a historic figure. It is about the private act of Agent's taking Writer's idea—which was more of a regular procedural about the DOJ—and giving it to Agent's other client. That did not meaningfully contribute to a public conversation about any issue of public interest.

Affirmed.

This is a pretty solid analysis of the public interest element post-FilmOn, and it makes a larger point that I've been harping on for a long time. A flaccid analysis of (e)(4) basically subjects any cause of action against a defendant whose business touches on media or the arts subject to an anti-SLAPP motion. If conduct in furtherance means anything, for instance, that “helps” make a TV show, and if it's enough that the public is interested in TV, we've just created a huge procedural hurdle that sweeps way too broadly to protects stuff that has nothing to do with free speech. Wilson narrowed the analysis for non-expressive “in furtherance” conduct by requiring the conduct to meaningfully foster some legit First Amendment interest. And FilmOn gave teeth to the public issue requirement by looking closely at the actual speech or conduct at issue asking if it really contributes to some meaningful public conversation. This has been a project long in the making, and not without its wrong turns. But it seems to have righted the ship quite a bit.  
 

A Firm Line in the Peer Review Sand

Bonni v. St. Joseph Health Sys., No. S244148 (Cal. Jul. 29, 2021)

There has been a lot of litigation over the application of the anti-SLAPP statute employment litigation touching on hospital peer review processes. Peer review is an “official proceeding,” so questions often arise regarding whether employment decisions made in connection with a peer review process are “protected activity” under Code of Civil Procedure § 425.16(e). 

I have been droning on about the appropriate line to draw for years. If the rub of the litigation is that someone is liable for some statement made in connection with a peer review process, it is protected. But the ultimate decision or result of a peer review—generally a decision to continue or discontinue a physician’s employment or privileges—is not such a statement. So, for instance, when a doctor sues a hospital for retaliatory discharge, but the hospital claims that its peer review decision grounded in quality of care was a legitimate non-retaliatory reason for the firing, no protected activity is involved.

That’s basically what the Court of Appeal held in this case in 2017. And that’s what the Supreme Court, in a unanimous opinion by Justice Kruger, holds here. 

There is one little twist to the analysis, however. In Wilson, the Supreme Court refined the elements based “arising from” analysis from its prior decision in Park to specify that if any single element of a cause of action constitutes protected activity, it satisfies the test. So in Wilson the defendant—CNN—claimed that the very act of firing the plaintiff for plagiarism was protected because it itself was an act of journalistic ethics enforcement and thus affected its ability to speak on an issue of public concern. In reaching that result, the Court disapproved of the Court of Appeal’s decision in this case, to the extent that it somewhat categorically suggested that the act of terminating someone categorically cannot constitute protected activity. But that doesn’t really matter here, because, unlike CNN, the hospital here doesn’t claim that terminating the doctor for alleged poor care—the result of the peer review—was itself some kind of protected expressive act or otherwise an act in furtherance of its ability to speak. 

The Court also addresses a second issue, although it seems like that issue was already settled by the Court in Baral, which held that the anti-SLAPP analysis needs to parse and strike only the protected allegations within a claim. Plaintiff’s claim here was mixed—some of his allegations were addressed to protected statements made during the peer review, while others were addressed only to the unprotected outcome. 

But defendant’s motion—filed pre-Baral—was addressed only to the cause of action as a whole. So Plaintiff argues that Baral should only apply when the moving defendant specifies the sub-parts of a cause of action that should be struck. Otherwise, says the plaintiff, courts should apply the “gravamen” test that some courts used prior to Baral. The Supreme Court, however, isn’t buying it. If a moving defendant fails to show that specific portions of a cause of action arise from protected activity, it has not met its burden on those claims under Baral and the analysis of those claims needs to proceed no further.

Court of Appeal affirmed.

The Logical Limits of an Element Based Anti-SLAPP Analysis

Spencer v. Mowat, No. B295738 (D2d5 Mar. 24, 2020)

Plaintiffs in this case allege that defendants are a gang of local surfers in the PV who have conspired in a campaign of intimidation and violence to prevent outsiders from surfing their break. Two defendants—alleged to have been members of the conspiracy but not to have personally committed any violent acts—brought an anti-SLAPP motion. It was denied.

On appeal, the court makes relatively short shrift of the argument that the claims arise from protected activity. In doing so, it focuses on the various violent acts committed by others in furtherance of the alleged conspiracy, which cases like 7 Stars regard as a proper focus of applying “arising from” to a conspiracy.

Affirmed.

At high level of generality, the analysis here makes some practical sense, for the same reason I thought 7 Stars was not a particularly hard case.

But 7 Stars was decided several months before the Supreme Court’s decision in Wilson. There, the court (in a discrimination case) held that if conduct that makes up any element of a multi-element tort satisfies the arising from test, then the first prong of the anti-SLAPP analysis is satisfied. That is the case, notwithstanding the fact that liability turns on the proof of other elements that are clearly not protected activity. Thus, in Wilson, the fact CNN had a colorable claim that it fired the plaintiff to enforce journalistic ethics against plagiarism was adequate to be “protected activity.” That was the case even though the crux of plaintiff’s claim—that he was fired because of his or her race—is not protected by the First Amendment.

In a conspiracy case, the existence and scope of the agreement is a key element of the claim. So following Wilson, to decide whether a conspiracy claim arises from protected activity, a court would need to look at whether the agreement itself is could be “other conduct in furtherance” under Code of Civil Procedure § 425.16(e)(4), notwithstanding the fact that roughing up Barneys from the Valley is obviously not constitutionally protected. 

And in doing that analysis, Wilson says a court needs to credit, to some significant degree, the moving Defendant’s evidence. So what if, in this case, Defendants put in evidence akin to CNN’s evidence in Wilson? Suppose defendants declared that they were an informal community organization concerned with the negative consequence of overuse of certain beaches, which Defendants believed merited a rule that beach access should be constrained to members of the local community? Taken at the same value the court gave the CNN’s evidence in Wilson, wouldn’t the agreement element of the conspiracy claim implicate the defendants’ freedom of association, and thus satisfy § 425.16(e)(4)? Notwithstanding that the overt act element of the claim entails stuff that is clearly outside of the First Amendment?

I've haven’t yet managed to come up with a fully-theorized answer to this that jives with Wilson. But it does illustrate how that there are a lot of unresolved questions left open by the formal element-based framework adopted by the Wilson court.

Insulating Fraud in Film Finance

Ojjeh v. Brown, No. A154889 (D1d3 Dec. 31, 2019)

Sigh.

Defendants raised money from plaintiff for the production of a documentary on Syrian refugees. But they never made any progress on making the film. Instead, they allegedly used the money for other reasons. Plaintiff sued them for breach of contract and fraud.

Defendants filed an anti-SLAPP motion, which the trial court denied because the claims did not arise from protected activity. The Court of Appeal, however, reverses, finding that the conduct from which the claims arise—securing alleged financing for a film—falls within the “conduct in furtherance” catchall under Code of Civil Procedure § 425.16(e)(4).

The court seems to recognize that there are three questions here. First, what conduct does the claim “arise from?” Second, is that conduct “in furtherance” of First Amendment activity. And third, does it relate to an issue of public concern? 

Things seem to go hinky on the second element. As the Supreme Court recently explained in Wilson, the (e)(4) “in furtherance” test can’t just ask if, superficially, the conduct at issue is something that “helps” a media defendant produce content. Otherwise, virtually any claim against a media defendant has to navigate an anti-SLAPP motion to proceed. Thus, courts examining (e)(4) arguments based on “in furtherance” conduct need to look at whether the conduct at issue actually plays a substantial role in carrying out or protecting core First Amendment protected activity.

For instance, the bare fact Wilson concerned CNN’s decision to terminate a news producer was not enough on its own to make that decision “in furtherance of protected activity” under (e)(4), even though employing producers “helps” CNN make the news. Laws of general applicability often incidentally affect the ability of media organizations to create content, but the First Amendment does not create some sort of blanket immunity from those laws.

Instead, (e)(4) was implicated in Wilson only because CNN came forward with evidence that the producer was terminated because he committed plagiarism, which was a sufficient threat to the core journalistic function of the CNN to implicate its exercise of its First Amendment rights, and thus for the termination to be “in furtherance” of those rights. 

The nuance demanded by Wilson is not evident from this opinion. Instead, the court just finds that soliciting investment funding was in furtherance of the production of the documentary—it “helped” the production— and therefore that (e)(4) applies. So apparently you have a protected right to commit fraud, so long as the subject of the fraud is the making of movies. Every huckster fronting as a “movie producer” will be thrilled!

What should have happened here, a la Wilson, is a closer examination of the nexus between the claims and the allegedly First Amendment-implicating activity. A moving defendant bears the burden on this point and in this context, that will usually require it to come forward with evidence extrinsic to the complaint. Which is what happened in Wilson. If the breach of contract and fraud claims are really about creative or political disagreements fundamental to the creation of a documentary, there might well be an (e)(4) issue. But if this was just a straight up promissory fraud ripoff there’s really no reason to be dragging the anti-SLAPP statute into the dispute. 

Reversed.

A Political Song for (Maybe) Michael Jackson to Sing

Serova v. Sony Music Entm’t, B280526A (D2d2 Jan. 8, 2020)

This is an anti-SLAPP case that I wrote about when the original opinion came out in 2018. The key question is whether Sony’s claims that Michael Jackson is the singer on three vocal tracks on an album issued after his demise are “in connection with a public issue.” If so, the claims are properly subject to a motion to strike under Code of Civil Procedure § 425.16(e)(3) or (4). The Court of Appeal held they were, but then the case got granted and held pending the Supreme Court’s decision in FilmOn, which definitively interpreted the public interest requirement.

Now on remand, the Court of Appeal says it would reach the same result, even in light of FilmOn. It is true that in the FilmOn analysis, a commercial context can weigh against speech being addressed to an issue a public interest. But it’s not necessarily dispositive. Here, the speech at issue addressed whether Michael Jackson was really the singer of those songs. Given Michael Jackson’s prominence as an artist, discussions about whether his final work was really his work are address an issue of public interest, even if they are made in connection with selling the album. This seems reasonable.

But the Court goes on, in an analysis that’s basically identical to the prior appeal, to find that Plaintiff can’t prevail on the merits because the statements are non-commercial speech that is absolutely protected by the First Amendment. As I said in my prior post, I’m a bit skeptical on this point. But we’re already only a hairs breadth from giving First Amendment protection to stone cold bribery, and it seems like fraud is just next in the hopper.

Reversed.

In any event, I implore you, again, to listen to this.

Bad Facts Open up a Split on Whether Indemnification Claims are SLAPPs

Long Beach Unified Sch. Dist. v Williams, No. B290069 (D2d4, as modified Dec. 31, 2019)

Wong v. Wong, No. A154286 (D1d1 Dec. 13, 2019)

C.W. Howe Partners v. Moordian, No. B290665 (D2d7 Dec. 19, 2019)

Within the course of a few weeks, the Court of Appeal (a panel of the First District, and two Different panels of the Second) decided three cases addressed to whether the anti-SLAPP statute applies to a claim demanding a litigation based indemnity. That is, an equitable or contractual right to obtain compensation for defense costs or judgements from another party, sometimes even a counterparty in the underlying litigation. 

Despite coming up different factual contexts, Wong and C.W. Howe basically come out the same door. Of course an indemnity requires something to indemnify against and a litigation indemnity requires a litigation. So, in a very superficial way, a litigation indemnity claim would not exist “but for” a litigation. That, however, does not mean the claim arises from the litigation. (The are some cases, including a case called Lennar Homes, that suggest otherwise, but the Court in C.W. Howe refers to the logic applied in those cases as “facile.”) Applying the framework in the Supreme Court’s decision in Park, the arising from test is met only when protected conduct forms an essential element of the claim. If that’s not the case, other protected-type conduct can show up in the case as evidence, without the arising from test being satisfied. 

Looking at the elements, Wong and C.W. Howe say this is an evidence, not an elements, situation. A contractual indemnity is just based on a contract and a refusal to pay. And an equitable indemnity claim arises from being a co-tortfeasor in partial proportionate fault. Neither of those elements requires a litigation, so the fact that the costs or results of litigation are the subject of the  compensation for is just evidence and not a fundamental element. 

Williams comes out the other door. Mind you, the facts of Williams are pretty bad. She’s a contract environmental consultant for the Long Beach School District, helping with the development and environmental compliance with a school construction site, in which she discovered a contractor was dumping materials contaminated with arsenic. After Williams came down with arsenic poisoning, the District cut off her contract. Williams and her company sued for retaliation and for causing the poisoning. The District counterclaimed, arguing that Williams had an obligation to cover both defense costs and any judgment under an indemnification provision in her contract. Williams moved to strike the claim under the anti-SLAPP statute.

Unlike C.W. Howe and Wong, however, the Williams court found the analysis in Lennar to be persuasive, because without her underlying claim, the indemnification claim would have “no basis.” But the court hedges a little and also finds that even if the case did not arise from Williams’ lawsuit, it arose from Williams’ unwillingness to fund the District’s lawsuit. According to the Court, a “refusal to fund the defense of ones own litigation—and the defense of a co-plaintiff’s claims arising from the same facts—is conduct in furtherance of the litigation” under Code of Civil Procedure § 425.16(e)(4). And since the litigation is about arsenic contamination at a school site, the Court finds that it was a matter of public interest.

Moreover, since the indemnification agreement—requiring Williams to pay for the defense and any judgment arising from her own lawsuit—was unconscionable, the district had no probability of prevailing.

* * *

This feels like another one where bad facts make bad law. C.W. Howe and Wong pretty clearly have the better side of the Lannar argument. If an indemnity
“arises from” the litigation to be indemnified, every insurance coverage dispute is a SLAPP. 

So far as the (e)(4) issue goes, the cases are clear that funding litigation can be “in furtherance.” But refusing to advance or indemnify under a commercial indemnification contract doesn’t seem very expressive. Do corporations really have a first amendment right not to advance litigation expenses in D&O claims? The public interest analysis here also seems a little short shrift and inconsistent with the structure set up in the Supreme Court's FilmOn analysis. Is the expression at issue about arsenic contamination in public schools? Or about whether Williams needed to fund the District’s defense in such a litigation? 

Mind you, the Court is certainly right that the indemnification provision in Williams’ contract is unenforceable, for any number of reasons—unconscionability, public policy, illegality, etc. But that doesn’t necessarily make the District’s cross-claim a SLAPP.

Not Exactly Between the World and Me.

Bernstein v. LaBeouf, No. B288054 (D2d3 Dec. 6, 2019)

So Shia LeBeouf and a girl, both loaded, walk into a bar—Jerry’s Deli in Studio City. A Bartender refuses to serve them. Shia freaks out, tries to get behind the bar, and is subsequently nabbed and escorted out by security. On the way out, Shia loudly calls the bartender a “Fuckin’ Racist Bitch,” and ultimately shouts out to the crowd, “Wake Up, this Motherfucker is a Racist.”* Of course, this being LA, someone filmed it and it was quickly posted to TMZ. Which earned Bartender, to his displeasure, the lasting moniker, “The Racist Bartender.” 

Bartender sues Shia for defamation, to which Shia responds with an anti-SLAPP motion. The trial court denied it. In a solid analysis of the Supreme Court’s recent FilmOn opinion, the Court of Appeal affirms. As the Court explains, calling some random bartender in the valley a racist has no connection to a public issue and thus is not protected activity under Code of Civil Procedure § 425.16(e)(3) or (4).

The Court rejects the argument that “Shia said it, and he’s a little famous, and people pay attention to dumb stuff famous people say, so it must be a public issue.” (That argument previously prevailed, pre-FilmOn, in the Wayans case. The Supreme Court has granted review in Wayans and transferred it back to the 2/1 for consideration in light of FilmOn.) Under FilmOn, the public issue analysis looks to the specific content of the speech, not the identity of the speaker. And then it examines the quality of the connection between the speech and the issue that is purportedly being addressed. Because drunkenly declaring a bartender to be a “Fuckin’ Racist Bitch” is not furthering some overall discussion of racism in American life, the speech is not protected activity.

Affirmed.

*There’s a lot of weird capitalization going on in the quotes in this opinion that I can’t figure out.

The Way Way Back

Rand Resources, LLC v. City of Carson, No. S235735 (Cal. Feb. 4, 2019).

Somehow I managed to miss this Supreme Court anti-SLAPP decision from the beginning of the year. I covered the Court of Appeal decision, and then mentioned the Supreme Court decision in in my post on the Eddie Money case. But I just forgot to write it up.

Anyway, the decision mostly presages the Supreme Court’s decisions in Wilson and FilmOn, and I’m mostly only going back to it for completeness/using this as a research tool purposes. It’s not news.

The dispute is over an alleged conspiracy to replace the company designated to be the City of Carson’s exclusive agent in recruiting a football team to move to Carson. There’s basically three groups of claims. 

The first bucket of claims allege that the City lied about breaching its contract with the Original Agent (the plaintiff) and steered the business to New Agent. There are supposedly some secret emails between various City officials and New Agent, as well as some lies City officials told to Original Agent. While these statements form the basis of the claims, per Park, they nonetheless fell outside of the anti-SLAPP statute because: (1) they were too attenuated to any public decision to be in connection with an official proceeding under Code of Civil Procedure § 425.16(e)(2); and (2) although Original Agent argued that the statements were related to bringing a football team to Carson, they more specifically related to who the city should use as an agent to carry out that goal. 

While bringing football to Carson might be an issue of public interest to bring the case under § 425.16(e)(4), who gets to be the agent isn’t. Here—somewhat previewing his opinion in FilmOn—Justice Cuellar makes clear that the focus of the public interest inquiry should be the actual speech at hand, not some general topic that it might tangentially relate to. And while it is theoretically possible that the agent selection issue could be a public issue, the City didn’t come forward with any evidence to show that to be the case. 

The second group concerns a claim for promissory fraud. Here, there is a Park problem. The actual fraudulent statement—something about renewing the Original Agent’s contract—is not protected activity. Although the claim alleges some other more arguably protected statements that Original Agent contends show bad intent, the fraud claim does not arise from those statements. They are just evidence.

The third bucket of claims, however, are different. They are claims against New Agent for interfering with Original Agent’s contract with the City. The interference took two forms. First, New Agent lobbied the City not to renew Original Agent’s contract and to hire New Agent instead. Second, New Agent communicated with the NFL in efforts to convince it to relocate a team in Carson. The Court holds that first type of statements are covered by (e)(2), since they were communications meant to influence and official decisions. The the second were covered by (e)(4) since, unlike the selection of the agent, the issue of bringing a football team to Carson was and public interest issue. 

Court of Appeal reversed in part.

Prong Two Doesn't Take Much

Jeffra v. Cal. State Lottery, No. B292775 (d2d8 Aug. 29, 2019)

This is basically the first post-Wilson anti-SLAPP decision in the employment context. Plaintiff is a whistleblower. He claims his employer, the state lottery, opened up and conducted a pre-textual internal investigation of him after he complained about the payment of certain lottery prizes. The infestation was oppressive, which led to his decision to retire early. He then sued for retaliation. 

Case is made harder for Plaintiff because his case clearly arises from the investigation, not a termination. If it was the latter, under Wilson, the defendant would have to show something inherently expressive about the decision to end his employment to meet the arising from test in Code of Civil Procedure § 425.16(e)(4). But since it is based on an investigation by a government employer, that is considered an “official proceeding authorized by law” under § 425.16(e)(4).

In any event, Plaintiff came forward with enough evidence to make a prima facie case to beat the motion. Defendant says there was not any evidence of a causal relationship between the complaining and the launching of the investigation. But there is at least some evidence, and the Court is willing to draw inferences from circumstantial evidence in Plaintiff’s favor. 

Other courts, including the Supreme Court, have equated the second prong anti-SLAPP burden with the non-movant’s burden in opposing summary judgment. The Court here explains, however, that “[t]his is not a summary judgment case . . . ; it is an anti-SLAPP case where there has been no discovery.” It is not entirely clear how that shuold affect the standard. But the Court seems to imply that the context merits grating particularly generous inferences. 

Moreover, the Court finds that the prima facie case was not defeated by a declaration from the investigator stating that he was not aware of the complaining. In doing so, it equates the situation to § 437c(e), which permits the denial of summary judgment when the only evidence of state of mind is a declaration from that person attesting to it.

Reversed.
 

Wilson Day Has Arrived.

Wilson v. Cable News Network, Inc., No. S239686 (Cal. Jul. 24, 2019)

Yesterday was a big day for California Civil Procedure, with the California Supreme Court handing down two decisions of procedural significance. I’ll address the second tomorrow.

But the first was the Court’s long-awaited anti-SLAPP decision in Wilson v. CNN. Wilson addresses the scope and meaning of Code of Civil Procedure § 425.16(e)(4)’s “other conduct in furtherance” element as applied to an employment discrimination claim. If you follow this kind of thing, you should read the whole opinion, which has tons of interesting anti-SLAPP discussion.

I have spent a lot of time thinking and writing about this (e)(4) issue over the past decade and a half, so sorry for the long post. Overall, Wilson is a good opinion with a generally correct result. I’m not sure I agree with every step of the Court’s analysis, but it’s navigating a very complicated space and nothing in its reasoning isn’t generally defensible under the text of 425.16 and the Court’s prior decisions. (Except for maybe footnote 7 . . . .) Anyway, I wanted to get this out quickly, so these are initial thoughts. If I had more time, I would have made it shorter.

Justice Cuellar's Law and Economics of Interestedness

FilmOn.com Inc. v. Doubleverify Inc., No. S244157 (Cal. May 6, 2019)

The California Supreme Court has granted review of a number of important cases dealing with Code of Civil Procedure § 425.16(e)(4)—the anti-SLAPP-statute’s “catchall” provision. This is a big one.

Jerk Neighbors Get Comeuppance on BS SLAPP Motion

Workman v. Colichman, No. B285945 (D2d4 Apr. 2, 2019)

Justice Collins drops the hammer on a really stupid anti-SLAPP motion and appeal. She affirms the denial of the motion, as well as a grant of fees to plaintiff. Then she adds more fees for the appeal.

No Rams, No Chargers, But Maybe Intentional Interference

Rand Res., LLC v. City of Carson, No. S235735 (Cal. Feb. 4, 2019)

I gave this anti-SLAPP case short shrift when it was decided by the Court of Appeal, thinking that it was a pretty straightforward application of the rule that would soon be enunciated by the Supreme Court in Park, decided shortly thereafter. The Supreme Court granted review. In a unanimous opinion by Justice Cuellar, the Court parses the case a little more closely than I or the Court of Appeal did.

Eddie Money + Employment Litigation = SLAPP?

Symmonds v. Mahoney, No. B283529 (D2d1 Feb. 1, 2019)

Eddie Money fired his Drummer, who has cancer and a bad back. Drummer sued under FEHA, alleging disability and age discrimination. Eddie filed an anti-SLAPP motion, alleging that the claims arose from his First Amendment Protected write to make his music without being hassled by the man. Which the trial court, quite sensibly, denied.

But the Court of Appeal reverses. 

An Arbitration Is Not an Official Proceeding Authorized by Law

Zhang v. Jenevein, No. B280047 (D2d7 Jan. 23, 2019)

Plaintiff here lost an arbitration where a clandestine recording of his conversation with Defendant was a key piece of evidence. Afterwards he sued defendant for violating Penal Code § 632, which prohibits recording confidential communications without everyone’s consent. Defendant filed an anti-SLAPP motion, which the trial court denied. The Court of Appeal here affirms. 

Defendant argued that the recorded statements were protective activity because they were made before or in connection with legislative, executive, or official proceedings, or any other official proceeding authorized by law. Code. Civ. Proc. § 425.16(e)(1), (2). Unfortunately for defendant, a bunch of cases have already held that an arbitration is not an official proceeding. Interestingly, Defendant didn’t argue that the taping was “in furtherance of” its arbitration efforts under § 425.16(e)(4). Cases have rejected that too, but other cases, albeit decided in a different context, have read (e)(4) as consistent with protecting seemingly unlawful conduct that “helps” first amendment protected activity. Indeed, that’s the issue that is pending in before the Supreme Court in the Wilson v. CNN case.

Affirmed.

Waiting on Wilson

Rall v. Tribune 365 LLC, No. B284566 (D2d8 Jan. 17, 2019)

In 2015, a Cartoonist and blogger for the Los Angeles Times wrote a blog post complaining about the way an LAPD officer treated him during a jaywalking stop back in 2001. That must peeved the LAPD pretty bad. Because the cops dug up evidence that the stop—fourteen years in the past—didn’t go down the way Cartoonist claimed and gave it to the Times. The Times did its own investigation. It decided that Cartoonist wasn’t playing it straight. The Times ultimately published a statement and a report of its investigation. It cut ties with Cartoonist and stopped publishing his work. 

Inspector General Investigations Merit Anti-SLAPP Protection

Blue v. Cal. Ofc. of the Inspector General, No. C083195 (D3 May 10, 2018)

Some prison Guards sued the Office of the Inspector General, a body created to provide oversight over internal affairs investigations and the disciplinary processes of the California Department of Corrections and Rehabilitation.

Get Too Meta; Face a SLAPP

MMM Holdings v. Reich, No. G053739 (D4d3 Mar. 12, 2018)

Q: What almost always happens when you sue someone for something they did in another litigation?

A: You lose an anti-SLAPP motion.