California Defamation Law Blog

Plaintiff Need Not Substantiate All Theories Presented Within A Single Cause of Action

Adrianos Facchetti — Sun, 07 Mar 2010 11:14:41 -0800

In my last post I discussed the 'minimal merit' standard with respect to a plaintiff's burden in opposing an anti-SLAPP motion. Recently, I saw a brief (which prompted this post) where the defendant in its moving papers argued that the plaintiff was required to prove the claim to the court. This is wrong. “A plaintiff is not required ‘to prove the specified claim to the trial court’; rather, so as not to deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.” (Citation omitted). All that is required is to state and substantiate a claim.

But the standard is even more lenient.

According to at least one court, "once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands. Thus, a court need not engage in the time-consuming task of determining whether a plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action to so as to leave only those portions it has determined have merit." (Citation omitted).

Let's use an example to flesh this out a bit, as my Civil Procedure professor used to say. Suppose plaintiff brings a lawsuit for slander based on a number of alleged slanderous statements, e.g. that defendant said the plaintiff was a "fraud," "was convicted of grand theft," and that the plaintiff is a "scheming douchebag." As part of its burden to demonstrate a probability of prevailing on the merits, plaintiff would need to show that the statements were either statements of fact, or were opinions that implied provably false facts. The statements that plaintiff is a "fraud" and "convicted of grant theft" would arguably be false statements of fact. However, the more colorful statement regarding the plaintiff may not be determined to be a statement of fact. It may be viewed as an epithet in context, which is not actionable.

But no matter. Plaintiff need not substantiate every alleged slanderous statement in order to overcome an anti-SLAPP motion. From my perspective, plaintiff need only show that one of the statements is actionable. Once the plaintiff does so, it has met its burden of 'minimal merit.'

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Opposing An Anti-SLAPP Motion: The Plaintiff's Burden

Adrianos Facchetti — Sat, 27 Feb 2010 18:24:55 -0800

Fear strikes through the heart of many lawyers at the prospect of having to oppose an anti-SLAPP motion. For one thing, it can lead to the dismissal to your case; not to mention the specter of mandatory attorney's fees.

But let's get one thing straight.

The standard that plaintiff has to meet is not all that high. If defendant sustains its initial burden to demonstrate that plaintiff's causes of action arise under section 425.16, plaintiff must show that it has a "probability of prevailing" on the merits of each of its causes of action. What does that mean? It sounds like plaintiff must essentially prove that they can win at trial, right? Not so.

A cause of action may only be stricken if it lacks even minimal merit. This threshold is quite low.

Further, one court has said that “[a] plaintiff is not required ‘to prove the specified claim to the trial court’; rather, so as not to deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.”

As you can see, the standard is not as high as one might think initially.

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Defamation By Omission?

Adrianos Facchetti — Sun, 14 Feb 2010 13:02:52 -0800

I remember sitting in a church pew many years ago hearing the pastor speak about two different kinds of sin: Sins of "commission" and sins of "omission." I understood very well as a teenager that you weren't supposed to do bad things (commission), but it was always a bit more abstract and difficult to understand that failing to do something could get you into trouble. And, if defamation can be analogized to sin (which, on many levels it probably shouldn't) in California at least, you cannot be held liable for defamation by omission. I know it sounds a bit weird but I'll explain it down below.

In Paterno v. Superior Court (2008) 163 Cal.App.4th 1242, a newspaper sued a student journalist because the student had made some statements in a magazine article about the newspaper. The article stated that the newspaper had "killed" a story about a drunk driving sentence imposed onone of the newspaper's editors. The article also stated that the newspaper initially investigated a workplace restraining order against a former employee, but then dropped it.

Now what's interesting is that instead of claiming that the statements were false, the newspaper complained that the magazine article did not include important facts, which identified why the newspaper did what it did. Essentially, the newspaper said that the magazine article didn't tell the whole story, and therefore falsely implied bad motives with respect to the newspaper.

First off, I doubt this would be the first time a newspaper didn't tell the whole story and omitted key facts, so the newspaper should have known better.

In any event, the court held that defendant had no obligation to include plaintiff's explanation of the story. Therefore, there is no liability for defamation by omission in California.

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"I Didn't Know The Law" Is Not A Good Excuse For Any Lawyer

Adrianos Facchetti — Tue, 26 Jan 2010 16:47:10 -0800

I was researching a legal issue on Westlaw the other day and I ran into an interesting case where a lawyer admitted he wasn't aware of the anti-SLAPP statute. In Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285-286, an attorney brought an action in Sacramento County against co-counsel for various claims. The defendant filed an anti-SLAPP motion over 9 months after the second amended complaint was filed, and as a result, the court denied the anti-SLAPP motion on the ground that it "[was] dilatory, without good cause for failing to bring the motion earlier." Section 425.16(f) states: “The [anti-SLAPP] motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.”

Defendant appealed and his excuse for late filing was that he "did not become aware of the application of the anti-SLAPP statute to the case until it was suggested" by his later attorney--and even his later attorney had been counsel of record for over five months before filing the motion.

While attorneys cannot be expected to know all the law, not knowing a specific area of law is simply not a good excuse under any circumstance, especially not to a judge.

There are many lessons in this case but two good takeaways are:

It is common for otherwise competent attorneys to be unaware of the anti-SLAPP statute; and
It is never a good idea to represent yourself in a matter of consequence before a court.

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Another Reason Not To Hang Out With Celebrities

Adrianos Facchetti — Sun, 24 Jan 2010 19:52:12 -0800

One of the strangest things to me is how much we worship celebrities in our culture. Turn on any channel or read any newspaper and you'll eventually see a story about a celebrity. This is perplexing and amusing at the same; especially for people like me, who were born and raised in Los Angeles. It's not uncommon to see an actor or director walking around or dining at a restaurant. But really, so what? They're just people, except that they're typically (not always, I know I'm generalizing) self-centered, uninteresting, and the most famous ones have people following them around all the time. These are plenty of reasons not to want to know, let alone hang out with a celebrity.

But there's yet another reason not to associate with celebrities: because the mere association with a celebrity may make you a limited purpose public figure!

In Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, the appellate court held that a housekeeper of Marlon Brando who was mentioned in his will "became involved in an issue of public interest by virtue of being named in Brando's will." This ruling is significant because the mere association with a celebrity may make a person a limited purpose public figure. This means that such a person would potentially be subject to different and higher evidentiary burdens should they decide to file a lawsuit.

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There Are No Magic Words . . .

Adrianos Facchetti — Fri, 22 Jan 2010 11:52:16 -0800

which will insulate you from liability for defamation. This usually comes into play because people mistakenly believe that only facts are actionable defamation. Wrong. An opinion can form the basis of a cause of action for defamation (slander, libel, and trade libel too) if it implies undisclosed defamatory facts.

So just because you say "in my opinion, Joe Shmoe is a fraud," doesn't mean you're automatically protected by the First Amendment. The court would look at the statement in its context to determine whether it implies a provably false assertion of fact. "The use of interrogative language alone does not entitle statements to constitutional protection where . . . they otherwise can be understood as implying defamatory fact." Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1004.

Nor can you get away (necessarily) by putting "I think" in front of an otherwise defamatory remark. Jackson v. Paramount Pictures Corp. 68 Cal.App.4th 10, 30 (citations omitted) ("It would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think."')

The lesson here is that there are no magic words. What matters is the substance/tenor/context of each statement.

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3 Key Differences Between Defamation And Trade Libel

Adrianos Facchetti — Tue, 05 Jan 2010 07:29:29 -0800

Comparing defamation and trade libel is like comparing apples and oranges. While both are similar (apples and oranges are fruit), they are fundamentally different in other ways.

One key difference between the two is with respect to the harm each is designed to address or protect. Defamation is meant to protect the reputation of the person, whereas trade libel is designed to compensate the plaintiff for pecuniary damage. The reason this distinction is critical is because " . . . trade libel requires pleading and proof of special damages in the form of pecuniary damages." Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3 547, 572. However, proof of special damages solely in the form of pecuniary damages is not required to plead and prove a cause of action for damages.

A second difference is that plaintiff is required to plead and prove that a disparaging statement is false in regard to trade libel, whereas in a cause of action the plaintiff is NOT required to plead that the statements are false in most cases. Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

Third, plaintiff may not recover damages for mental distress upon prevailing on a cause of action for trade libel. He or she is limited to the loss of pecuniary damages caused by the libelous statement or statements.

Understanding the differences between these torts will help you plan your strategy, whether you are the plaintiff or the defendant in a case.

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What Is The Definition Of Trade Libel?

Adrianos Facchetti — Mon, 04 Jan 2010 08:39:37 -0800

"Trade libel is defined as an intentional disparagement of the quality of property, which results in pecuniary damage to plaintiff." Erlich v. Etner (1964) 224 Cal.App.2d 69, 73, 36.

What Are The Elements Of A Cause Of Action For Trade Libel?

Adrianos Facchetti — Sun, 03 Jan 2010 14:14:20 -0800

In reviewing some of the topics that we've covered on the California Defamation Blog, I noticed that the topic of Trade Libel is conspicuously absent so I'm going to fix this over the next few posts.

Today's post is short and simple. Here are the basic elements of a cause of action for Trade Libe to get us started:

Defendant's false statement;
Publication;
Of matter disparaging the quality of another person's property or services;
which the publisher intended to cause harm to the owner, or should have recognized as being likely to cause it; and
Causation of pecuniary harm or loss.

Computerexpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.

In the next post we'll discuss the nature of the tort of Trade Libel.

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A Key Objection You May Be Overlooking In Anti-SLAPP Motions

Adrianos Facchetti — Sat, 02 Jan 2010 15:03:34 -0800

Some people have complained lately that I've been way too focused on anti-SLAPP law here. Well, there's a reason for that.

It's because SLAPP law plays an important part in just about every defamation case involving matters of public interest. It would be like talking about the Lakers without talking about Lamar Odom or Pau Gasol. Sure Kobe is the star of the team, but the other players invariably play a key role in each game (can you tell that I'm a Lakers fan?).

But I digress.

What I'd like to talk about today is a type of evidence that is routinely introduced by one party in support or opposition to an anti-SLAPP motion, and yet, the receiving party RARELY objects to this type of evidence!

What am I talking about?

I'm talking about judicially noticed court documents and/or declarations.

“ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ [Citation.] The court may in its discretion take judicial notice of any court record in the United States. (Evid.Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records." '

Kilroy v. State (2004) 119 Cal.App.4th 140, 145.

Therefore, while courts make take judicial notice of any "orders, findings of facts and conclusions of law," they may not consider hearsay statements in court records "for their truth unless an independent hearsay exception exists." North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 777.

As my Civil Procedure professor used to say, let's take an example and "flesh this out a bit." Suppose you are a plaintiff who is suing a defendant for defamation based on allegations that you had embezzled money from a publicly traded company. Defendant made the alleged defamatory comments on a forum dedicated to discussion about the publicly traded company.

Defendant files an anti-SLAPP motion and accompanying request for judicial notice of a shoplifting conviction on your record from over 30 years ago (during your misguided/misspent youth). There is a police report and several witness statements included in the court records.

Can the court consider the conviction for its truth? YES, according to the evidence code.

Can the court consider the statements in the police report and witness statements for their truth? NO because they are hearsay and require an independent hearsay exception in order to come in.

See the difference?

This is vitally important because whether you win or lose on an anti-SLAPP motion may depend on evidentiary rulings made by the judge.

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Best Of California Defamation Law Blog: 2009

Adrianos Facchetti — Wed, 30 Dec 2009 07:54:20 -0800

This has been an exciting year here at the California Defamation Law Blog, so I thought it'd be a good idea to highlight our top 10 favorite posts, considering page views, comments, and other forms of reader feedback. I hope you revisit and enjoy these posts. Here's to an even better 2010!

Here they are:

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Libelous Statements Must Be Specifically Identified

Adrianos Facchetti — Tue, 29 Dec 2009 07:05:11 -0800

Enough!

Enough of the vague allegations that leave defamation defense counsel (like myself) wondering what you mean when you plead, for example, that "defendant made statements indicating that plaintiff is dishonest and is a liar." That is not enough to properly state a cause of action for libel or defamation!

“The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint. [Citations.]” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5, 284 Cal.Rptr. 244.)

Failing to specifically identify each and every alleged libelous statement may lead to serious consequences.

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Is An Anti-SLAPP Motion Like A Demurrer?

Adrianos Facchetti — Mon, 28 Dec 2009 07:11:22 -0800

Once a defendant makes its threshold showing that a complaint arises under protected activity, the plaintiff must demonstrate a probability of prevailing on the merits. This means a plaintiff must state and substantiate a legally sufficient claim. Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass'n (2006) 136 Cal.App.4th 464. Stated another way, plaintiff "'must demonstrate the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26, citing, Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.

"If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his burden in resisting the motion. (See Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1018-1019, 26 Cal.Rptr.3d 350 (Vogel ); FN7 Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018-1019, 132 Cal.Rptr.2d 602 [“[S]pecial motions to strike pursuant to section 425.16 ‘operate “like a demurrer or motion for summary judgment in ‘reverse.’ ” ' (Briggs, supra, 19 Cal.4th at p. 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 718-719, 34 Cal.Rptr.2d 898, 882 P.2d 894." (Emphasis added).

Just like a demurrer, if a plaintiff fails to state a cause of action it will be stricken. Therefore, it is critically important for a plaintiff to carefully draft its complaint. Plaintiff must plead sufficient facts in its complaint in order to state each cause of action. It may not be enough for plaintiff to state certain facts for the first time in its opposition to an anti-SLAPP motion.

Plaintiff beware.

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Federal Anti-SLAPP Legislation Introduced (Finally)

Adrianos Facchetti — Fri, 25 Dec 2009 13:11:44 -0800

Tennessee Congressman Steve Cohen recently introduced H.R. 4364, which is a proposed federal anti-SLAPP law (I mentioned this in an earlier post here).

If passed, this could have a significant impact on the legal landscape nationwide.

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Don't Make This Mistake In Your Declaration . . .

Adrianos Facchetti — Thu, 24 Dec 2009 15:30:17 -0800

As I wrote in an earlier post this week, the parties to an anti-SLAPP motion must present competent, admissible evidence. Such evidence is usually presented in a declaration, which is where most people make a very common and totally avoidable mistake.

It usually looks like this:

"I am informed and believe that John Doe claims he is an accredited physical therapist and has practiced physical therapy for over ten years, which to my knowledge, could not be true."

Can you tell me what's wrong with the above hypothetical allegation? Yep. You guessed it.

The above allegation is hearsay and "declarations on a special motion to strike a SLAPP suit ((strategic lawsuit against public participation)) . . . may not include averments on information and belief."). See Evans v. Unkow (1995) 38 Cal.App.4th 1490.

This is such a simple rule and yet many attorneys violate it, sometimes repeatedly in a single declaration.

Don't make the same mistake.

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Party Opposing Anti-SLAPP Motion Must Present Competent, Admissible Evidence

Adrianos Facchetti — Tue, 22 Dec 2009 14:23:24 -0800

I came across a case the other day which spelled out an unsexy, but no less important concept of anti-SLAPP law. Not knowing this concept may spell doom whether you're bringing or opposing an anti-SLAPP motion.

While it is unsurprising that many in pro per parties miss the boat on this one, many attorneys also screw this one up.

What am I talking about? I'm talking about the type of evidence you need to present to the court when dealing with an anti-SLAPP motion.

Once a defendant makes a prima facie showing that plaintiff's lawsuit arises from protected activity as defined in CCP § 425.16, the burden then shifts to plaintiff to establish a probability of prevailing on the merits.

In this regard, " . . . plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment." Premier Med. Mgmt Systems, Inc. v. California Ins. Guar. Ass'n (2006) 136 Cal.App.4th 464, 476.

What kind of evidence does the plaintiff need to produce? It needs to be competent evidence which would be admissible at trial. Chavez v. Mendoza (2001) 94 Cal.App.4th 260, 291.

Therefore, "declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, or conclusory are to be disregarded." Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26; (citing) Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dis. (2003) 106 Cal.App.4th 1219, 1238, 1240.

This is a big deal because a court can disregard evidence that is not competent or otherwise admissible.

I see declarations all the time which are argumentative, conclusory, lack foundation, and contain hearsay. I object all day long (only if the objection is proper, of course) to these kinds of allegations and my experience is the court is all too happy to sustain them.

Make sure you adduce competent, admissible evidence. And if you're on the other side, make sure you make your objections.

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Anti-SLAPP Law: Legal Malpractice Trap For The Unwary? Part II

Adrianos Facchetti — Mon, 21 Dec 2009 15:48:49 -0800

I pointed out last week here that anti-SLAPP law is much more complicated and nuanced than you might expect, and therefore, that it could present a legal malpractice TRAP for the unwary. I repeat: drafting an anti-SLAPP motion is not like doing your average demurrer for failure to state a cause of action or motion to strike. It is much more time intensive (in vast majority of cases) and there are well over 180 appellate decisions on the subject. So be careful and become informed.

Anyhow, here's another example of what I'm talking about (I'll add more blog posts about this in the future as I discover additional pitfalls):

Suppose you're a plaintiff and defendant files an anti-SLAPP motion, which is granted by the court, thereby striking your entire complaint. Defendant immediately files a separate motion for attorneys' fees. You're thinking about appealing the order granting the motion to strike, but you decide, for a number reasons, that you'll wait until the court decides the motion for attorneys' fees.

Bad decision.

The time to appeal an order on an anti-SLAPP motion begins to run when the order is entered by the judge, without regard to any later motion for attorneys' fees. This means you can't wait until the judge decides the motion for attorneys' fees to appeal the order on the anti-SLAPP motion. See Russell v. Foglio (2008) 160 Cal.App.4th 653, 659-661.

Leave To Amend A Complaint After A Successful Anti-SLAPP Motion?

Adrianos Facchetti — Mon, 21 Dec 2009 15:36:07 -0800

You are a plaintiff in a lawsuit and the defendant filed and won an anti-SLAPP motion striking your entire complaint. May a court grant you leave to amend the complaint? In other words, will the court let you "fix the problem" with your complaint.

No. Simmons v. Allstate Co. (2001) 92 Cal.App.4th 1068, 1073.

The purpose of the anti-SLAPP statute is to eliminate meritless lawsuits at an early stage of litigation before it becomes too expensive to defend. Allowing plaintiffs to amend a complaint after a court has granted an anti-SLAPP motion would run contrary to the state purpose of section 425.16.

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Is A Statement Of Decision Required On An Order For An Anti-SLAPP Motion?

Adrianos Facchetti — Sat, 19 Dec 2009 22:17:27 -0800

You might expect that a statement of decision is required on an order for an anti-SLAPP motion. Such a motion involves important interests (Constitutional interests) and is much more involved than your average motion (demurrer, motion to strike). It requires the parties to submit evidence which would be admissible at trial, has the potential to end a case, and such an order is immediately appealable.

Given the above, wouldn't it seem fair to require a court to issue a statement of decision and explain its reasoning?

Unfortunately, the answer is that a court is NOT required to issue such a statement pursuant to Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620.

Lien is a short but well-written decision.

The general rule is that statements of decision are limited to trials. CCP § 632. There are some exceptions, however, such as proceedings involving custody of a minor and " . . . a motion to amend judgment to add a judgment debtor on an alter ego theory."

In determining whether an exception to the rule may lie:

" . . courts balance (1) the importance of the issues at stake in the proceeding, including the significance of the rights affected and the magnitude of the potential adverse effect on those rights; and (2) whether appellate review can be effectively accomplished even in the absence of express findings."

(Citations omitted).

The decision acknowledged that anti-SLAPP motions involved important issues, however, it also found that a court does not "try" issues of fact because a court does not weight the evidence in an anti-SLAPP motion.

Further, the court determined that "the absence of factual findings has not precluded effective [appellate] review."

Therefore, an exception to section 632 is not warranted for anti-SLAPP motions and a statement of decision is not required.

Is this result fair? Do you believe courts should be required to explain their reasoning in decisions involving an anti-SLAPP motion? Discuss.

Can You File A SLAPP Suit And Then Dismiss It Without Any Consequences?

Adrianos Facchetti — Fri, 18 Dec 2009 22:18:39 -0800

The mere threat of an anti-SLAPP motion (or serving the motion on the other party) may be sufficient to cause them to dismiss the suit before a hearing on the merits. Under those circumstances, are there consequences for the dismissing party?

The court in Moore faced this issue and presented it clearly:

"This appeal addresses the question whether the plaintiff in a SLAPP suite (a Strategic Lawsuit Against Public Participation) can, by the device of dismissing the SLAPP prior to a hearing on the defendant's motion to strike the complaint, avoid paying the attorney's fees incurred by the defendant in defending the suit."

Defendant filed a cross-complaint and then Plaintiff filed an anti-SLAPP motion. Defendant dismissed its cross-complaint before the hearing on the motion to strike. Plaintiff made a motion to recover its attorneys' fees and the trial court denied Plaintiff's request because it could not be said that Plaintiff was the "prevailing party" under section 425.16(c) since there was no hearing on the matter.

Plaintiff appealed the ruling and the Court of Appeal reversed and remanded.

Moore held that appellant had the right to have his anti-SLAPP motion heard even though the cross-complaint had been dismissed prior to the hearing. It looked to the stated purpose of the anti-SLAPP, which is to give financial relief to a victim of a SLAPP suit and punish a person who files such a suit. It reasoned, correctly in my view, that allowing a person to file a SLAPP suit and then withdraw it prior to a hearing would frustrate the purpose of the statute.

This does not mean that a person who files an anti-SLAPP motion in this scenario would be automatically entitled to attorney's fees. The court would have to determine the merits of the motion.

" . . . a plaintiff's voluntary dismissal of a suit, after a section 425.16 motion has been filed, neither automatically precludes a court from awarding a defendant attorney's fees and costs under that section, nor automatically requires such an award."

The moral of this story: Make sure your suit is solid before you file it if it appears that it may be subject to an anti-SLAPP motion.