Can't Skip the Lodestar

Frym v. 601 Main Street LLC, No. A163086 (D1d5 Aug. 24, 2022)

Tenant brings similar claims against each of Landlord Entity, Landlord Entity’s Owner, and Landlord Entity’s Attorney. Each is separately represented. All three defendants file anti-SLAPP motions. Court grants Owner’s motion, and awards her fees. While briefing is pending, however, Tenant dismisses LE and Attorney. Court correctly recognizes that the dismissals don’t moot LE and Attorney’s motions—indeed it effectively concedes their merits. But it declines to award them fees, finding that the three motions had so much overlap that they could have been brought as one joint motion, so there’s no marginal value-add to the two extra motions.

That was error. A prevailing anti-SLAPP movant is statutorily entitled to fees, determined by the lodestar (reasonable rate times reasonable time) method. The court could have done that and—to the extent time was wasted or duplicated—declined to include it in the lodestar. But it could not just make a gestalt judgment that the whole shebang was duplicative. Moreover, because they had separate counsel, it could not all have been duplicative. For instance, Attorney’s lawyer prepped for and showed up at the hearing. And it just wasn’t fair to give fees only to Owner’s lawyer, just because her motion was heard first. So the case gets remanded to the trial court to do a legit lodestar. And moreover, Owner and LE get fees on appeal.

Reversed.

Dismissed Jones Act Claim Is Still a SLAPP

Curtin Maritime Corp. v. Pacific Dredge & Construction, LLC, No. D078217 (D4d1 Mar. 22, 2022)

This is an anti-SLAPP appeal based on a theory that a competitor’s false certification to the Coast Guard to obtain a certification under the Jones Act* that its vessel was U.S. made violated the UCL. Defendant took an appeal after it lost the motion in the trial court. But the Plaintiff tried to dismiss the complaint while the appeal was pending, claiming the dismissal rendered the appeal moot. 

Not so. An appeal automatically stays trial court proceedings for any matter embraced or affected by the appeal. Code Civ. Proc. § 916. Since the validity of a complaint is embraced by an anti-SLAPP appeal, the automatic stay precluded the dismissal. And in any event, the appeal isn’t moot because a reversal will permit the defendant to claim fees on remand under § 425.16(c).

On the merits, on prong 1, the crux of Plaintiff’s claim entailed an allegation that Defendant submitted a false application for certification to the Coast Guard. That’s protected activity. On prong 2, the claim was preempted by the Jones Act, which the court finds gives the federal government the exclusive authority to determine what vessels satisfy the Jones Act.

Reversed.

*The Jones Act requires commercial vessels that sail in wholly domestic commerce—between two U.S. ports—to be manufactured domestically.

Cal. Supremes Duck a Tricky Litigation Privilege Question

Olson v. Doe, No. S258498 (Cal. Jan. 13, 2022)

Doe and Olson reside in the same condo building. Doe claims that Olson and his cronies in the HOA are sexually harassing and stalking her. Eventually Doe sought a civil harassment restraining order under Code of Civil Procedure § 527.6. That got resolved in a mediated settlement, where the parties agreed not to communicate with or disparage each other. Doe says the harassment continued nonetheless. She complained to HUD, which referred the matter to DFEH for investigation. 

Doe subsequently filed a civil complaint. Olson cross-claimed, alleging a breach of the non-disparage from the settlement, to which Doe responded with an anti-SLAPP motion. The trial court granted the motion. The Court of Appeal affirmed, but only in part. According to the Court of Appeal, Doe’s complaints to HUD and DFEH were protected by the litigation privilege in Civil Code § 47(b), so Defendant couldn't succeed. But, since Doe had surrendered her right to disparage in the settlement, the litigation privilege did not apply to statements made in her civil complaint. The Supreme Court granted review.

Interestingly, in a unanimous opinion by Justice Liu, the Court ducks the litigation privilege issue, which is tricky. It instead finds that the non-disparagement clause—which said simply that “[t]he parties agree not to disparage one another”—did not apply to statements made in subsequent civil litigation. Basically, according to the Court, despite the seemingly unambiguous text, the clause was meant only to prevent the parties from trash talking each other amongst their acquaintances in the building. The opinion reaches this result based on a lot of contextual information provided by the civil harassment statutes, and the mediation that resolved the restraining order claim. It effectively finds that the parties could not have intended to broadly preclude making disparaging allegations in future litigation when they agreed “not to disparage one another.”

Court of Appeal reversed.

It’s an interesting way to reach the result and avoid hard § 47(b) issues, and it is quite likely right on the merits of the contract claim. But I’m not sure what’s going on here is fully faithful to the burdens that apply in the second step of the anti-SLAPP analysis. To beat the motion, Olson needed only to come up with a prima facie case on his breach of contract claim. So long as he had evidence that, if believed by a jury, could sustain a finding in his favor, his claim had minimal merit and the motion would have been denied. (Or at least the § 47(b) issue would need to be addressed.)

On the element of breach, it seems like Olson has that in on plain text of the agreement. It does not seem too hard to say that a reasonable juror could understand “[t]he parties agree not to disparage one another” to mean that the parties will not disparage each other, including in court. Sure, given California’s extraordinarily loose parol evidence rule, could context and other extrinsic factors result in the more limited construction that the Court finds here? No doubt. As I said, as a factual matter, the Court is quite likely right. Doe deserves to prevail on the crossclaim. 

Moreover, the use of non-disparagement clauses to chill valid civil litigation—especially in factual contexts like the one presented by this case—is problematic from a policy standpoint. Indeed, the tension between the parties’ freedom to contract and the right to petition for redress is what makes the § 47(b) question avoided by the Court so difficult. So I also get, and share, the Court’s impetus to give Doe an early offramp.

But are the contextual cues here so weighty that no reasonable juror could find that the parties did not agree to what the document seems to say on its face? I.e., would Doe be entitled to summary adjudication on the interpretation of the contract? Because that’s what needs to be the case in order to establish that Olson doesn’t have a prima facie case. The Court, however, never says that Doe’s take prevails as a matter of law. Indeed, it doesn’t really address head on how the parol evidence rule affects the burden issue. Instead, the opinion feels it is engaged in fact-finding. Which is a mistake.

 

SEC Filings Are Protected Activity

Sugarman v. Bennett, No. B307753 (D2d8 Dec. 27, 2021)

Sugarman v. Brown, No. B308318 (D2d8 Dec. 27, 2021)

Two appeals from the same case decide the same issue: statements made in a corporation’s Form 10-K filing with the Securities and Exchange Commission are made “in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” and thus protected activity under the anti-SLAPP statute.

Makes sense.

Affirmed, in relevant part.

Style note: I have complained before about the goofy way California appellate courts explain partial publications, by explaining instead which parts of the opinion are not published. The decisions here do that too. But at least the slip opinion helpfully includes headings that say “[Begin nonpublished portion]” and “[End nonpublished portion].” Readers of slip opinions will take whatever we can get.

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.

Paying $50k Is Not a Favorable Termination

Citizens of Humanity v. Ramirez, No. B299469 (D2d5 Apr. 19, 2021)

Employer settled a wage and hour case with employee, on an individual basis, for $50k. Then it sued her and her lawyer for malicious prosecution. But you can’t do that. An element of malicious prosecution is a termination of the prior action in a manner favorable to the current plaintiff. Obviously, a $50k settlement is not a favorable termination, even if it ends the litigation with a dismissal. And since a malicious prosecution claim is a lawsuit based on a prior lawsuit, the anti-SLAPP statute is implicated. Here, such a motion should have been granted. 

Reversed.

City SLAPPs Cop for Suing Against Disclosure

Collondrez v. City of Rio Vista, No. A159246 (D1d3 Mar. 16. 2021)

Cop sued a City to challenge the release of a report related to a disciplinary action under the Public Records Act. Cop claims the City didn’t gave him appropriate notice to contest the release. City filed an anti-SLAPP motion, which the court partially granted and partially denied, finding on the latter issue that Cop showed a probability of prevailing.

The Court of Appeal reverses, in part, finding that the whole motion should have been granted. The Court finds that the claims arose from protected activity because they entailed a release of information to the media on an issue of public interest—police misconduct. Cop tries to draw an analogy to cases finding no “arising from” when public officials are just carrying out mandatory duties. For example, serving an arrest warrant isn’t protected activity even though submission of an affidavit in support of it is a statement in a judicial proceeding. But the Court doesn’t agree with that analogy. The PRA requires agencies to make discretionary calls when releasing records and invoking exceptions. The Court finds that discretion to have sufficiently expressive value to implicate City’s free speech rights.

So far as the chance of success, recent amendments to the Penal Code specifically subject police discipline records to disclosure when they relate to a sustained finding of dishonesty against a police officer. Here, a City employee made such a finding against Cop after a Skelly hearing, but that finding wasn’t ultimately appealed because City and Cop settled the personnel action. As the Court of Appeal reads the new provision, however, that is enough to count as a sustained finding requiring disclosure. 

Reversed in part.

Doxing an Opponent in Litigation Is Not Immunized by Civil Code § 47(b)

Dziubla v. Piazza, No. D076183 (D4d1 Dec. 29, 2020)

A guy who wanted to expand his gun range into some kind of firearms theme park borrowed some money to do so. That deal soured and ended up in litigation in Nevada. Some associates of Gun Guy—claiming to be private investigators—started creeping around the home of Lender. Gun Guy then published a manifesto, which he put on his website and emailed to his 200,000 gun-loving followers. The manifesto solicited funds to defray Gun Guy’s legal bills said lots of bad stuff about Lenders and their litigation. But it also doxed them—published their home address along with pictures of them and their residence.

Lenders sue in California. Gun Guy files an anti-SLAPP motion to the claims aimed at the manifesto. There’s not a lot of dispute that the manifesto was adequately connected to the Nevada litigation to be “protected activity” under Code of Civil Procedure § 425.16(e)(1). (Lenders also make a Flatley illegality argument. But we know that’s doomed, right?) 

So the crux of the issue is the second prong.

To be sure, litigation-adjacent speech that gets you into (e)(1) is also almost always also protected on the merits by the Civil Code § 47(b) litigation privilege. And that’s true for most of the manifesto. For which the motion was properly granted. But not the doxing. 

As the Court sees it, “[t]here was simply no good reason to include [Lender’s] home address, images of his house and a close-up picture of his face in a communication aimed at explaining the status of ongoing litigation and soliciting financial support.” Said differently, the doxing lacked a sufficient nexus to the litigation to merit protection under § 47(b). So on remand, the trial court needs to apply the Baral v. Schnitt analysis and excise out the parts of the claim that arise from protected activity, but permit the part of the case based on doxing to proceed.

Affirmed in part.

Making Sense of Anti-SLAPP Sanctions Procedure

Changsa Metro Grp. Co., Ltd. v. Xufeng, No. E073322 (D4d2 Nov. 3, 2020)

A defendant who files a frivolous anti-SLAPP motion is subject to an award of plaintiff’s costs and fees “pursuant to Section 128.5.” Code Civ. Proc. § 425.16(c)(1). The question here is how much of the procedure for sanctions motions set out in § 128.5 applies to a request for sanctions for a frivolous anti-SLAPP motion. In particular, (1) can sanctions under § 425.16(c)(1) be requested in an opposition to an anti-SLAPP motion; and (2) does 21-day the safe harbor provision in § 128.5(f) apply to § 425.16(c)(1) sanctions?

The Court of Appeal here explains, at some length, the various internal inconsistencies within §128.5(a), (c), and (f). In particular, (f) seems to require a finding of frivolity before a sanction can be entered, but also requires the service of a separate motion 21 days before it is filed, with a “safe harbor” to withdraw the offending document during that window. But then (c) suggests that a sanctions demand could be made in an opposition to a motion, which can’t really be reconciled with the separate motion/21 day safe harbor requirement in (f). After examining the legislative history, the court finds that the requirements of (f) should apply whenever practicable, but cannot to circumstances where they would defeat the essential function of the statute.

The upshot of that is that the § 128.5(f) procedures can’t apply to § 425.16(c)(1). An anti-SLAPP motion is supposed to be heard within 30 days of service. But if the motion is frivolous, there’s no practical way the plaintiff could prepare and serve (but not file) a § 128.5(f) motion within that schedule, while also permitting the defendant the 21-day window to withdraw the motion. The Court grants that various continuances could make it technically possible, but they would put a great deal of burden on the parties and the trial judge to deal with the various ex partes needed to handle all that scheduling.

The Court thus concludes that “subdivision (f) does not work with the anti-SLAPP statute.” It follows that a request for §425.16(c)(1) sanctions can be made in an anti-SLAPP opposition brief and that a 21-day safe harbor is not required. So long as the moving defendant has an opportunity to be heard, that procedure is consistent with § 128.5(a) and (c).

Affirmed.

Time to Appeal Appealable Order Runs from Minute Order

Marshall v. Webster, No. C088240 (D3 Aug. 27, 2020)

An order granting an anti-SLAPP motion is appealable under Code of Civil Procedure § 425.16(i). Like other appealable orders, the order is appealable when made--there doesn’t need to be some further formalization before the right to appeal is ripe. So Rule of Court 8.104’s 60-day clock to file a notice of appeal starts to run when the clerk mails the order. 

Here, the trial court granted the motion in a minute order, which was promptly served on the parties by the clerk. Then the defendant submitted a proposed order granting the motion, which the court ultimately signed about six weeks later. But as the Court of Appeal explains, the clock started from the first ruling. The court unequivocally granted the motion in the first order, which made it appealable. There was no need for further proceedings or a more formal order by the trial court. Which means this appeal was filed too late.

Appeal dismissed.

Prima Facie Proof of a Negative

Gruber v. Gruber, No. B294617 (D2d2 Apr. 30, 2020)

Pretty basic appeal of an order denying an anti-SLAPP motion on a malicious prosecution claim because plaintiff came forward with enough evidence of lack of probable cause to defeat the motion. In affirming, the Court of Appeal has an interesting discussion of the relationship between the prima facie standard in the second element of the anti-SLAPP analysis and the lack of probable cause issue for malicious prosecution. 

Framed in the context of the test, the question is how does a plaintiff come forward with enough evidence that, if credited as true, would permit a reasonable jury to find that no reasonable attorney would have thought the prior claim had any merit? Well here, the underlying lawsuit was for fraud. In opposing the motion, Plaintiff came forward with evidence showing that the defendants (plaintiffs in the prior case) knew that the statement they sued over was actually true. And that, my friends, is enough to beat an anti-SLAPP motion, even if the evidence is hotly disputed.

Affirmed.

You Are (Not) (the Government)

Patel v. Chavez, No. B291695 (D2d1 Apr. 30, 2020)

Plaintiff brought a federal civil rights claim under 42 U.S.C. § 1983 and a petition for writ of administrative mandate against former employee for giving false testimony before the Labor Commissioner. 

That doesn’t really make any damn sense, for any number of reasons. (Plaintiff also sued the Commissioner, who got out on demurrer.) But it does provide a basis for an anti-SLAPP motion. Because giving testimony, true or false, in an administrative proceeding is most certainly protected activity under Code of Civil Procedure § 425.16(e)(1). 

The question, however, is whether the anti-SLAPP statute can apply to a purely federal law claim. As with most issues that implicate the Erie doctrine, it’s confusing. 

The Ninth Circuit has held that, as a matter of California law, the anti-SLAPP statute creates a substantive immunity from suit. Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003). But not without controversy. See Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (9th Cir. 2016) (Kozinski, J., concurring) (calling for en banc review of Batzel); Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 835 (9th Cir. 2018) (Gould, J., concurring) (same). Thus, an anti-SLAPP motion can be brought in federal courts, at least to the extent the procedures in § 425.16 don’t conflict with on-point federal rules of civil procedure. Cf. Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (holding that the discovery stay in § 425.16(g) conflicts with Fed. R. Civ. P. 56(d)’s right to obtain targeted discovery to oppose summary judgment). But the motion can only apply to California state law claims. Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (“[A] federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims[.]”).

a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims,

Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)

a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims,

Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)

On the other hand, California state courts—including the Supreme Court—view the anti-SLAPP remedy as “a procedural device for screening out meritless claims[.]” Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 737 (2003).* As such, a federal-law cause of action filed in state court can be attacked with an anti-SLAPP motion unless there’s some federal law reason such as obstacle preemption that requires it not to apply.

And as the court here explains, nothing in the anti-SLAPP regime stands as a obstacle to litigating meritorious § 1983 claims in California state court. In particular, the court holds that the discovery stay in § 425.16(g)—which can be lifted on good cause—and the attorney fee-award provisions in §425.16(c) do not unduly burden a plaintiff’s ability so litigate a §1983 claim.

Moving onto the anti-SLAPP analysis, as I said, “arising from” is basically self-evident. And so far as the minimal merit prong goes, both § 1983 and mandamus apply to state actors. Being a witness in a Labor Commission proceeding does not make you the government. 

Affirmed.

*The Ninth Circuit case that found the anti-SLAPP statute created a “substantive immunity” was decided in 2003 and relied almost entirely on legislative history to make that determination. See Batzel, 333 F.3d at 1025. But it did, at least implicitly, seem to recognize that whether the statute crated a procedural or substantive rule was a question of, or at least significantly informed by, California state law. 

If we accept that premise, it’s hard to understand why the anyone should view Batzel as good law of the circuit, absent a disapproval en banc. The California Supreme Court has literally described the anti-SLAPP scheme as “procedural” no fewer than five times since Batzel was decided. See Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 4 Cal. 5th 637, 645 (2018); Rusheen v. Cohen, 37 Cal. 4th 1048, 1056 (2006); Flatley v. Mauro, 39 Cal. 4th 299, 312 (2006); Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 280 (2006); Kibler v. N. Inyo Cty. Local Hosp. Dist., 39 Cal. 4th 192, 202 (2006); Jarrow, 31 Cal. 4th at 737. And many other cases implicitly recognize the procedural nature of the motion, even if they don’t say so quite so explicitly. See, e.g., Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 883 (2019).

So there’s no need to go en banc. Since the California Supreme Court binds everyone on questions of California law, this is a pure Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc) situation, where the panel decision can be deemed so undermined by controlling, higher, precedent, that it doesn’t need to be followed, even in the absence of an explicit reversal en banc or by the U.S Supreme Court.

FWIW, now that we’ve fully grocked out on law of the circuit, the second verse of this 32 year-old SoCal classic does really feel kind of right for the time.

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.

Right of Publicity Case Gets SLAPPed

Pott v. Lazarin, No. H044587 (D6 Mar. 30, 2020)

Plaintiffs’ daughter was sexually assaulted, and afterwards, her assailants distributed photographs of the assault. She committed suicide shortly thereafter. Defendant runs some kind of suicide prevention org> He used the victim’s name and photograph at a press conference in connection with his advocacy and (although this is disputed) some fundraising.

Plaintiffs sued Defendant for violating California’s right of publicity statute, Civil Code § 3344.1, which creates a tort for commercially exploiting the likeness of another. Defendant filed an anti-SLAPP motion, which the trial court denied on the grounds that the conduct was facially illegal under Flatley v. Muoro.
The Flately argument, of course, is wrong. It basically always is. And nobody defends it on appeal. 

But there’s also no other basis to affirm. Defendant had been sued for his speech, made in a public forum, on an issue of public interest. (The last point is bolstered by the fact that, with Plaintiffs’ authorization, a documentary had been produced about their daughter.) That satisfies the “arising from protected activity” test under Code of Civil Procedure § 425.16(e)(3).

On the merits, § 3344.1 applies only to commercial speech. (That’s the only reason it’s constitutional.) Here, there’s no question that Defendant’s use wasn’t commercial. It had no connection with the sale of goods or services. It was instead political. That’s the case even if Plaintiffs were right that their daughter’s image and name were used in connection with fundraising for Plaintiff’s advocacy organization.

Reversed.

A Private Dispute on the Internet Is Not a Public Issue

Jepson v. Ley, B292166 (D2d8 Jan. 30, 2020)

This is a defamation case over a blog post related to a neighborhood dispute. One neighbor called the other, essentially, a well-armed jerk. Litigation ensued. The poster claims the case is a SLAPP. But it’s not. A private dispute between neighbors is not an issue of public interest, even if it spills out on to the Internet. So the claim does not satisfy Code of Civil Procedure § 425.16(e)(3) or (4).

FWIW, this opinion has a very solid summary of the public issue case law in the runup to, and including, the Supreme Court’s recent decision in FilmOn.

Affirmed.

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.

Evidence Is Not Elements

Miller Marital Deduction Trust v. Zurich Am. Ins. Co., No. A155398 (D1d3 Oct. 15, 2019)

This anti-SLAPP case is a straight up application of the Park rule. Insured sued Carrier for failure to provide Cumis counsel. As part of illustrating why Cumis counsel was required, Insured quoted some attorney statements made in connection with the litigation. Carrier calls that a SLAPP, but that’s not right. The element here is failure to provide counsel. The statements don’t satisfy the element, so the claim doesn’t arise from them. They are just a piece evidence in support of a more general point—that appointment of Cumis counsel was 
required.

Affirmed.