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.
Showing posts with label conduct in furtherance. Show all posts
Showing posts with label conduct in furtherance. Show all posts
Monday, January 27, 2020
Tuesday, July 23, 2019
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.
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.
Tuesday, December 27, 2016
The (e)(4) SLAPP Split Is Coming to a Head.
Wilson v. Cable News Network, No. B264944 (D2d1 Dec. 13, 2016)
This case is basically a retread of 2013’s Hunter v. CBS case.
There, the Court of Appeal said that committing employment discrimination against a newscaster is “protected activity” under the anti-SLAPP statute because it is “conduct in furtherance” of First Amendment Activity as defined under Code of Civil Procedure § 425.16(e)(4). Except in this case the talent is off-air, and the discrimination (and retaliation) is on the basis of disability. Plus, it goes the other way.
This case is basically a retread of 2013’s Hunter v. CBS case.
There, the Court of Appeal said that committing employment discrimination against a newscaster is “protected activity” under the anti-SLAPP statute because it is “conduct in furtherance” of First Amendment Activity as defined under Code of Civil Procedure § 425.16(e)(4). Except in this case the talent is off-air, and the discrimination (and retaliation) is on the basis of disability. Plus, it goes the other way.
Saturday, April 2, 2016
Sworn Hearsay Permitted in SLAPP Step Two
Sweetwater Union Sch. Dist. v. Gilbane Bldg. Co., No. D067383 (D4d1 Feb. 24, 2016)
A School District sued a contractor to void some contracts it alleged were corruptly procured by the contractor’s wining and dining of various district officials. The contractor moved to strike the case under the anti-SLAPP statute. The trial court denied the motion under Flatley v. Mauro, i.e., it held that the conduct alleged was illegal as a matter of law, and thus that the anti-SLAPP motion can’t apply.
The court of appeal affirms, but for different reasons. First off, for some strange reason, the district basically concedes that bribery of public officials “arises from protected activity.” The court cursorily notes that since lobbying local government entities is generally protected by the First Amendment, unless the district can show that the Flatley exception applies, the conduct counts as protected under Code of Civil Procedure § 425.16(b)(1).
Notably, there’s essentially no analysis in the opinion as to which of the four categories of “protected activity” listed in § 425.16(e)(1)-(4) is implicated here. Political bribery isn’t a “statement” as the term is used in the definitions in categories (1) to (3). (FWIW, that readily distinguishes the only case cited on the point, DuPont Merck Pharmaceutical Co. v. Superior Court, 78 Cal. App. 4th 562, 566 (2000), which dealt with a drug company’s statements in advertising, marketing, and public relations campaigns.) The only potential applicable category that reaches conduct that does not require a written or oral utterance is the “other conduct in furtherance” catchall in § 425.16(e)(4). And as I’ve noted elsewhere, the (e)(4) catchall has led to anomalous results and an unresolved split in authority, with no case articulating a satisfying theory of how (e)(4) should be applied to activity that pretty clearly isn’t First-Amendment protected—stuff like bribery in furtherance of litigation, racial, gender, and age discrimination in media employment and tenure decisions, and litigation-related wiretapping—but can arguably be crammed into the linguistic formulation of “other conduct in furtherance” of some speech or petitioning interest.
In any event, the court goes on to decide that the Flatley exception doesn’t apply. The exception is very narrow, applying only when (1) the defendant admits the illegality of its conduct; or (2) the evidence is sufficient to establish the illegality of the conduct as a matter of law. While the District here alleges that the contract was engaged in illegal bribery, the contractor didn’t admit it, and the District’s evidence wasn’t so strong as to prove bribery as a matter of law, even though several employees of the District and the Contractor had pleaded guilty. So to avoid having its claim stricken as a SLAPP, the district needs to show a probability of prevailing. And to do that, it needs to come forward with prima facie evidence for each element on its claim.
The District, however, did meet its burden. The relevant statute—Government Code § 1090—permits a public entity to sue to cancel a contract when the people who awarded it were financially interested. And “interested” has been interpreted to include receiving bribes in exchange for approving a deal. On this issue, the District put forth a bunch of evidence, especially materials from prior criminal cases. The Contractor’s appeal argues that the trial court erroneously considered this evidence.
The Court of Appeal notes the generally applicable rule that evidence submitted in opposition to an anti-SLAPP motion needs to be admissible under the Evidence Code. But like on summary judgment, this rule recognizes a narrow exception: although technically hearsay, affidavits and declarations can be used in lieu of live testimony. The gist of the point is generally that a declaration simply puts potential trial testimony in a form that can be considered as part of a law and motion matter without holding an evidentiary hearing.
The problem is that the evidence doesn’t consist of affidavits or declarations prepared for this case. It consists instead of sworn change of plea documents from the convicted individuals and grand jury transcripts. The court nonetheless finds that these documents fall within the exception because—notwithstanding whether the declarants would or could ever attend a trial in the case—the statements and testimony were sworn under penalty of perjury. It getting to its result it confronts a split of authority addressing the admissibility of prior case testimony in the summary judgment context.
One case—Gatton v. A.P. Green Services, Inc., 64 Cal. App. 4th 688, 694 (1998)—holds that because prior-case testimony is not the functional equivalent of an affidavit or declaration, it is admissible on a summary judgment only only if the foundational elements of the prior testimony exception to the evidence code are present. I.e., that the witness is unavailable and a party to the prior case had a similar motive an opportunity to cross. See Cal. Evid. Cod § 1292(a). Notably Gatton specifically declined to follow the other case—Williams v. Saga Enterprises, Inc., 225 Cal. App. 3d 142, 149 (1990)—which permitted use of prior case depo testimony on SJ without satisfying § 1292(a), because it was under oath and its “effect” was functionally “the same as would be a declaration supplied by [the witness] in this case.”
The court here decides Williams has the better argument. So since the evidence at issue—change of plea documents and grand jury testimony—were signed or verbally sworn under penalty of perjury, the trial court could consider it as the functional equivalent of a declaration. And that was the case even if the District couldn’t satisfy the requirements of some other hearsay exception or otherwise show that the witnesses could or would testify to those facts at some later trial. (Indeed, given the witnesses’ potential incarceration, presumably they would not.) The court notes that a technical relaxation of the hearsay rule is particularly sensible on an anti-SLAPP motion, where the plaintiff is constrained in being required to gather evidence to substantiate a prima facie case without the benefit of any discovery.
So, considering the objectionable evidence, the District set out a prima facie case, satisfying its burden under the second step of the anti-SLAPP analysis. The motion was thus properly denied.
Affirmed.
A School District sued a contractor to void some contracts it alleged were corruptly procured by the contractor’s wining and dining of various district officials. The contractor moved to strike the case under the anti-SLAPP statute. The trial court denied the motion under Flatley v. Mauro, i.e., it held that the conduct alleged was illegal as a matter of law, and thus that the anti-SLAPP motion can’t apply.
The court of appeal affirms, but for different reasons. First off, for some strange reason, the district basically concedes that bribery of public officials “arises from protected activity.” The court cursorily notes that since lobbying local government entities is generally protected by the First Amendment, unless the district can show that the Flatley exception applies, the conduct counts as protected under Code of Civil Procedure § 425.16(b)(1).
Notably, there’s essentially no analysis in the opinion as to which of the four categories of “protected activity” listed in § 425.16(e)(1)-(4) is implicated here. Political bribery isn’t a “statement” as the term is used in the definitions in categories (1) to (3). (FWIW, that readily distinguishes the only case cited on the point, DuPont Merck Pharmaceutical Co. v. Superior Court, 78 Cal. App. 4th 562, 566 (2000), which dealt with a drug company’s statements in advertising, marketing, and public relations campaigns.) The only potential applicable category that reaches conduct that does not require a written or oral utterance is the “other conduct in furtherance” catchall in § 425.16(e)(4). And as I’ve noted elsewhere, the (e)(4) catchall has led to anomalous results and an unresolved split in authority, with no case articulating a satisfying theory of how (e)(4) should be applied to activity that pretty clearly isn’t First-Amendment protected—stuff like bribery in furtherance of litigation, racial, gender, and age discrimination in media employment and tenure decisions, and litigation-related wiretapping—but can arguably be crammed into the linguistic formulation of “other conduct in furtherance” of some speech or petitioning interest.
In any event, the court goes on to decide that the Flatley exception doesn’t apply. The exception is very narrow, applying only when (1) the defendant admits the illegality of its conduct; or (2) the evidence is sufficient to establish the illegality of the conduct as a matter of law. While the District here alleges that the contract was engaged in illegal bribery, the contractor didn’t admit it, and the District’s evidence wasn’t so strong as to prove bribery as a matter of law, even though several employees of the District and the Contractor had pleaded guilty. So to avoid having its claim stricken as a SLAPP, the district needs to show a probability of prevailing. And to do that, it needs to come forward with prima facie evidence for each element on its claim.
The District, however, did meet its burden. The relevant statute—Government Code § 1090—permits a public entity to sue to cancel a contract when the people who awarded it were financially interested. And “interested” has been interpreted to include receiving bribes in exchange for approving a deal. On this issue, the District put forth a bunch of evidence, especially materials from prior criminal cases. The Contractor’s appeal argues that the trial court erroneously considered this evidence.
The Court of Appeal notes the generally applicable rule that evidence submitted in opposition to an anti-SLAPP motion needs to be admissible under the Evidence Code. But like on summary judgment, this rule recognizes a narrow exception: although technically hearsay, affidavits and declarations can be used in lieu of live testimony. The gist of the point is generally that a declaration simply puts potential trial testimony in a form that can be considered as part of a law and motion matter without holding an evidentiary hearing.
The problem is that the evidence doesn’t consist of affidavits or declarations prepared for this case. It consists instead of sworn change of plea documents from the convicted individuals and grand jury transcripts. The court nonetheless finds that these documents fall within the exception because—notwithstanding whether the declarants would or could ever attend a trial in the case—the statements and testimony were sworn under penalty of perjury. It getting to its result it confronts a split of authority addressing the admissibility of prior case testimony in the summary judgment context.
One case—Gatton v. A.P. Green Services, Inc., 64 Cal. App. 4th 688, 694 (1998)—holds that because prior-case testimony is not the functional equivalent of an affidavit or declaration, it is admissible on a summary judgment only only if the foundational elements of the prior testimony exception to the evidence code are present. I.e., that the witness is unavailable and a party to the prior case had a similar motive an opportunity to cross. See Cal. Evid. Cod § 1292(a). Notably Gatton specifically declined to follow the other case—Williams v. Saga Enterprises, Inc., 225 Cal. App. 3d 142, 149 (1990)—which permitted use of prior case depo testimony on SJ without satisfying § 1292(a), because it was under oath and its “effect” was functionally “the same as would be a declaration supplied by [the witness] in this case.”
The court here decides Williams has the better argument. So since the evidence at issue—change of plea documents and grand jury testimony—were signed or verbally sworn under penalty of perjury, the trial court could consider it as the functional equivalent of a declaration. And that was the case even if the District couldn’t satisfy the requirements of some other hearsay exception or otherwise show that the witnesses could or would testify to those facts at some later trial. (Indeed, given the witnesses’ potential incarceration, presumably they would not.) The court notes that a technical relaxation of the hearsay rule is particularly sensible on an anti-SLAPP motion, where the plaintiff is constrained in being required to gather evidence to substantiate a prima facie case without the benefit of any discovery.
So, considering the objectionable evidence, the District set out a prima facie case, satisfying its burden under the second step of the anti-SLAPP analysis. The motion was thus properly denied.
Affirmed.
Wednesday, September 16, 2015
SLAPPing a Cybersquat
Collier v. Harris, No. G048735 (D4d3 Sept. 1, 2015)
In connection with a hotly disputed school board election in a tony part of the OC, a supporter of one bloc of candidates allegedly did some cybersquatting. She bought some Internet domain names that appeared to refer to the opposing bloc’s agenda and then used them to redirect traffic to her own bloc’s websites. An activist from the opposing side sued, alleging claims for invasion of privacy, false impersonation, and the illegal use of an Internet domain name. Defendant responded with an anti-SLAPP motion, arguing that registering a domain name in connection with a political campaign was an act in furtherance of free speech protected under Code of Civil Procedure § 425.16(e)(4). The trial court denied the motion because, as it saw the facts, the claims arose from the misleading redirection of Internet traffic and not from any speech itself.
In connection with a hotly disputed school board election in a tony part of the OC, a supporter of one bloc of candidates allegedly did some cybersquatting. She bought some Internet domain names that appeared to refer to the opposing bloc’s agenda and then used them to redirect traffic to her own bloc’s websites. An activist from the opposing side sued, alleging claims for invasion of privacy, false impersonation, and the illegal use of an Internet domain name. Defendant responded with an anti-SLAPP motion, arguing that registering a domain name in connection with a political campaign was an act in furtherance of free speech protected under Code of Civil Procedure § 425.16(e)(4). The trial court denied the motion because, as it saw the facts, the claims arose from the misleading redirection of Internet traffic and not from any speech itself.
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