California Anti-SLAPP Project

Second Circuit Holds that California Anti-SLAPP Law Is Substantive and Applies in Federal Court

Evan Mascagni — Wed, 12 Jun 2013 20:41:16 +0000

The Second Circuit has now joined the First, Fifth, and Ninth Circuits in holding that state anti-SLAPP laws confer substantive laws under the Erie doctrine, and are therefore applicable in federal court.

In Liberty Synergistics Inc. v. Microflo Ltd., Liberty Synergistics Inc. (Liberty) filed a malicious prosecution suit in California state court against Microflo Ltd. (Microflo) over an earlier round of litigation between the same parties in the Eastern District of New York. Liberty alleged that Microflo, in pursing the previous litigation against Liberty, undertook no reasonable investigation to verify the facts of the complaint and only maintained the ligation against Liberty in spite. Microflo removed the case to the Central District of California and then moved to dismiss the suit under California’s anti-SLAPP law. Before the court decided on the motion, the case was voluntarily transferred to the District Court for the Eastern District of New York. Microflo then reasserted its anti-SLAPP motion under California law, but the District Court judge denied the motion on the basis that New York’s law, not California law, governed the malicious prosecution. Microflo appealed.

The Second Circuit Court of Appeals concluded that the District Court erred by denying Microflo’s anti-SLAPP motion, as the District Court conflated the relevant state choice-of-law question with the separate federal choice-of-law inquiry under the Erie doctrine:

“State rules that are considered “procedural” under state law may still apply in federal diversity suits if those rules are considered “substantive” under federal law pursuant to Erie. Because the plaintiff initially brought this suit in California and then voluntarily transferred it to the Eastern District of New York, and because a California state court would have applied California’s anti-SLAPP rule as a procedural matter, the aspects of California’s anti-SLAPP rule considered substantive by federal law continue to apply in this case, notwithstanding that the case is now being heard in New York, and notwithstanding that the cause of action is otherwise governed by substantive New York law.”

The Court of Appeals remanded the case to the District Court for further consideration of the anti-SLAPP motion. This decision holding that California’s anti-SLAPP law is substantive under federal law is particularly timely, as this issue is currently under consideration at the Ninth Circuit Court of Appeals. In concurring opinions in Makaeff v. Trump University, Chief Justice Kozinski and Judge Paez discussed how they believe that state anti-SLAPP laws should not be applied in federal courts, as they are procedural and not substantive. They said that United States ex rel. Newsham v. Lockheed Missiles & Spice Co. (the Ninth Circuit case holding that California’s anti-SLAPP law is substantive and thus applies in federal court), 190 F.3d 963 (9th Cir. 1999), is wrong and should be reconsidered.

Judge Kozinski concluded by noting that he believes the Ninth Circuit Court of Appeals should take a fresh look at the applicability of state anti-SLAPP laws in federal court through an en banc review. Trump University accepted Judge Kozinski’s invitation and filed a petition for en banc review.

Hopefully the Ninth Circuit does not regress (and move in the opposition direction of other Circuits) and California’s anti-SLAPP law will continue to be able to be used in federal court for state claims.

Federal Court Decision Holds that the Right to Unionize is Protected Under 425.16

Evan Mascagni — Mon, 15 Apr 2013 20:46:52 +0000

Last week, a federal district judge in the Central District of California held that actions aimed at unionizing employees was protected activity under California’s anti-SLAPP statute. In Magic Laundry Services, Inc. v. Workers United Service Employees International Union, 2013 U.S. Dist. LEXIS 53296, Judge Michael Fitzgerald issued an order granting defendants’ special motion to strike all four state law claims brought by Magic Laundry. In the case, Magic Laundry asserted claims for relief against defendants based on allegations that defendants created flyers describing horrible work conditions at Magic Laundry, spoke to Magic Laundry employees about unionization on Magic Laundry’s property, organized demonstrations outside of Magic Laundry and its customers’ facilities, sent letters to Magic Laundry’s customers regarding working conditions at Magic Laundry, effectively organized a secondary boycott of Magic Laundry, and engaged in petitioning activity to local and national political entities regarding working conditions at Magic Laundry. Here is a brief look at how the court ruled on each of the four state law claims:

1. Misappropriation of Trade Secrets

Magic Laundry argued that its client list (that defendants used to send letters regarding working conditions) qualified as a trade secret under California law and that defendants acquired the list by improper means. However, defendants maintained that the list was not a trade secret because Magic Laundry’s market trucks deliver its goods publicly to the locations of its clients, rendering it public knowledge, and that the list was not subject to security or obtained by improper means. The court agreed with defendants and also noted that there was no admissible evidence that the disclosure harmed Magic Laundry in any way. The court held that Magic Laundry failed to show a prima facie case of misappropriation of trade secrets and struck that claim.

2. Interference with Contract

Magic Laundry claimed that the defendants intended to disrupt Magic Laundry’s contracts with third parties and that those disruptions made performance of contracts difficult. Defendants argued that the interference with contract claim was preempted by Sections 7 and 8 of the National Labor Relations Act (NLRA), which address employees’ rights to organize as well as permissible conduct by unions in their efforts to organize labor forces. The court held that the defendants’ conduct fell “squarely within the purview” of the NLRA and that Magic Laundry does not allege that defendants’ conduct “involved violence or threats of violence, or any other quality that would take their activity beyond the scope of federal labor regulations.” Because Magic Laundry could not show a probability of prevailing on this claim, it was struck.

3. Defamation

The court held that Magic Laundry failed to show a prima facie case of defamation, as they could not show actual malice. While the complaint alleged that defendants made a number of false statements, the court held that Magic Laundry did not provide any evidence to show that the statements at issue were knowingly false or made in reckless disregard for their falsity. In fact, the court noted that “Magic Laundry apparently concedes that it does not have evidence” to show that some of the statements were false. Therefore, the court struck the defamation claim.

4. Trespass

Defendants argued that Magic Laundry lacked sufficient facts to support its trespass claim and that, regardless, the conduct alleged is specifically exempted from trespass liability under California law. To protect and encourage labor activities, California law exempts those engaging in lawful union activity from its trespass statutes. See Banales v. Municipal Court, 132 Cal. App. 3d 67 (1982). The court agreed that defendants’ conduct was exempt and held that “speaking to employees, handing out coffee, and disseminating flyers appears to be lawful union activity, and Magic Laundry does not point to any evidence or authority to the contrary.” The court struck the trespass claim.

After dismissing all of Magic Laundry’s state law claims, the Court addressed Magic Laundry’s four federal Racketeer Influenced and Corrupt Organizations Act (RICO) claims. At the hearing, Magic Laundry requested leave to amend the RICO allegations. In his order, Judge Fitzgerald held that “The Court is dubious that Magic Laundry can allege a proper RICO claim on such a basis, including sufficiently detailed allegations of fraud. Nonetheless, the Court grants Magic Laundry leave to amend its RICO claims, if that can be done consistent with Rule 11(b).” In a warning to Magic Laundry, the court concluded by noting “Perhaps there will be a Second Amendment Complaint but there will be no Third.”

So while it is good news that the defendants were able to get the state claims dismissed under California’s anti-SLAPP law, the bad news is that the federal claims were not dismissed under California’s anti-SLAPP law. Globetrotter Software, Inc. v. Elan Computer Group, Inc. (N.D. Cal. 1999) 63 F.Supp.2d 1127, and later, Restaino v. Bah (In re Bah) (B.A.P. 9th Cir. 2005) 321 B.R. 41, held that federal claims in federal courts are not subject to Claifornia’s anti-SLAPP law. This shows the need for federal anti-SLAPP legislation, as it exposes one of the biggest loopholes to the current state anti-SLAPP law framework. A plaintiff can avoid a strong state anti-SLAPP law like the one in California by simply filing a federal claim in federal court. Federal anti-SLAPP legislation would close this loophole and protect all Americans at the state and federal level.

Remembering First Amendment Champion Anthony Lewis

Evan Mascagni — Wed, 03 Apr 2013 19:45:37 +0000

Putlizer Prize-winning journalist Anthony Lewis passed away last week at the age of 85. Lewis famously published Make No Law in 1991 about the Supreme Court case New York Times v. Sullivan and how it revolutionized American libel law. While most well known for establishing the actual malice standard in defamation suits about public officials/figures, the facts of New York Times v. Sullivan also show that it was what we would refer to today as a SLAPP.

In 1960, The New York Times ran a full-page advertisement that was soliciting funds to defend Martin Luther King, Jr. against an Alabama perjury indictment. Among other things, the advertisement described actions against civil rights protesters, some of which involved police officers in Alabama. The advertisement stated:

“They [Alabama State Police] have arrested [King] seven times . . .”

However, at that point Dr. King had only been arrested four times. So while the gist of the advertisement was true, some of the particulars were inaccurate. And although Montgomery Public Safety commissioner L.B. Sullivan was not named in the advertisement, he considered this minor inaccuracy to be personally defamatory by virtue of his position and duty to supervise the police department.

Sullivan filed a libel action against the newspaper and four black ministers who were listed as endorsers of the advertisement. The Supreme Court of the United States held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with ‘actual malice’. Under this new standard, Sullivan was unable to show that The New York Times knew the statements were false or that they acted with reckless disregard for the truth, and therefore the case was dismissed.

Throughout the case, The New York Times maintained that the case was a SLAPP (though not referred to by that term), brought solely to intimidate news organizations and prevent them from reporting on the newsworthy actions of public employees in the South. Because there were no federal or state anti-SLAPP laws in place at the time, and therefore The New York Times was unable to invoke any anti-SLAPP protections, and thus they were dragged through the courts for four years and not able to recover their attorneys’ fees.

Make No Law thoroughly discusses the profound impact that New York Times v. Sullivan had on what newspapers, and ordinary citizens, can print and say. The Philadelphia Enquirer called the book “a riveting detailed account . . . [Make No Law] is nothing less than a comprehensive history of free speech in America.”

CASP is grateful for Mr. Lewis’ contributions to strengthening free speech in the United States, and we are honored to help continue the work of protecting First Amendment rights by fighting SLAPPs in California.

Read the New York Times’ obituary for Mr. Lewis here:
http://www.nytimes.com/2013/03/26/us/anthony-lewis-pulitzer-prize-winning-columnist-dies-at-85.html?_r=0

Read Christopher Lydon’s moving and intimate tribute here:
http://www.radioopensource.org/for-anthony-lewis-with-love-and-thanks/

And read about how Lewis himself influenced history here:
http://www.propublica.org/article/friend-of-the-court-how-anthony-lewis-influenced-the-justices-he-covered

Five Amici Briefs Filed to Challenge Gerbosi and Support the Broad Construction of Anti-SLAPP Law

Evan Mascagni — Tue, 26 Mar 2013 19:40:12 +0000

CASP has blogged and questioned whether Gerbosi v. Gaims, (2011) 193 Cal.App.4th 435, was the worst decision ever decided under the California anti-SLAPP law, as it held that the mere allegation that defendant’s conduct was criminal means that the anti-SLAPP law does not apply. Yesterday, five amici briefs were filed in Malin v. Singer, a case at the California Court of Appeal, which among other things, could help repudiate Gerbosi. The California Anti-SLAPP Project represents two of the appellants in this case – a woman who has been sued because her lawyer sent a pre-litigation demand letter, and her husband.

The five amici briefs that challenge the trial court’s decision that the demand letter was criminally extortionate and support the broad construction of California’s anti-SLAPP law were filed yesterday by the Association of Southern California Defense Counsel (ASCDC), the Beverly Hills Bar Association, the Survivors Network of those Abused by Priests (SNAP), the American Civil Liberties Union of Southern California (ACLU/SC), and Hinshaw & Culbertson LLP. Professor George (Rock) Pring and the Center for Public Interest Law, among others, signed on to the BHBA brief. Survivors, activists, survivors’ rights organizations, and law firms that represent survivors all signed on to the SNAP brief.

Association of Southern California Defense Counsel

Written by attorney Harry W.R. Chamberlain II of Mnatt, Phelps & Phillips, LLP and attorney Michael A. Colton.

The Association of Southern California Defense Counsel (ASCDC) is one of the nation’s most preeminent regional defense organizations that encompasses a diverse group of more than 2,200 defense attorneys in southern California. Their brief notes that the Malin trial court’s narrow construction of the anti-SLAPP law has implications far beyond attorney demand letters. In Malin, the trial court held that defendants’ pre-litigation demand letter was not protected by the anti-SLAPP law because it was criminally extortionate, and the court based its decision in significant part on Gerbosi, whichinvolved allegations or wiretapping and illegal eavesdropping. ASCDC’s brief lays out why Gerbosi is a horrible opinion, which gives trial court judges who don’t like the anti-SLAPP law a legal basis for denying meritorious anti-SLAPP motions.

Beverly Hills Bar Association

Written by attorney Thomas H. Vidal of Abrams Garfinkel Margolis Bergson, LLP.

The Beverly Hills Bar Association is a nationally recognized major metropolitan bar association based in Beverly Hills and serves over 15,000 lawyers who live or work on the Westside of Los Angeles County. Like ASCDC’s brief, the Beverly Hills Bar Association’s amicus brief addresses the Gerbosi opinion. Additionally, it addresses the right to send demand letters. The brief focuses on what makes an activity “unlawful as a matter of law” and what evidence is sufficient to “conclusively” show that the activity is unlawful as a matter of law. It ultimately concludes that in denying Appellants’ anti-SLAPP motion, the trial court misapplied the holdings in Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) and Gerbosi, by concluding that the Singer demand letter was illegal as a matter of law.

Survivors Network of those Abused by Priests

Written by attorney David Cook of Cook Collection Attorneys.

The Survivors Network of those Abused by Priests (SNAP) is a self-help group that supports people who have been victimized by clergy, and helps them try to pick up the pieces of their lives, heal and move forward. SNAP believes that survivors of sexual assault need and deserve compensation for life long therapy and medical expenses, which should be paid without the risk of adverse litigation for bogus claims. This is why SNAP supports survivors’ right to send a demand letter to a predator free of the risk that they will be sued for “extortion.” Many sexual predators are highly aggressive individuals, and would lack any motivation to settle, absent a threat that their misconduct would become public. The thrust of the amicus brief by SNAP is that the threat in a pre-litigation demand letter to reveal misconduct is not extortive if the misconduct itself is the act upon which the claim and ensuing lawsuit are based.

American Civil Liberties Union of Southern California

Written by attorney Peter Eliasberg of the ACLU Foundation of Southern California.

The American Civil Liberties Union of Southern California (ACLU/SC) is one of three California affiliates of the national ACLU, which is dedicated to protecting the civil rights and civil liberties guaranteed by the Bill of Rights of the United States. Their brief agrees with both appellants and amicus ASCDC that the trial court erred in relying on Gerbosi. The brief also noted that the trial court’s decision is inconsistent with both Flatley and the long line of cases holding that courts should not address in the first prong of the anti-SLAPP inquiry claims that expressive activity that appears to fall within the ambit of the anti-SLAPP statute is, in fact, illegal or otherwise unprotected.

Hinshaw & Culbertson LLP

Written by attorneys Ronald E. Mallen and Cassidy E. Chivers of Hinshaw & Culbertson, LLP.

Hinshaw & Culbertson LLP represents lawyers in legal malpractice cases, and, frequently, in cases brought by adversaries of the lawyers’ clients for litigation-related conduct, as is the situation here. Their brief argues that lawyers, who operate in an adversarial system, must have the ability, and freedom from unwarranted threat, to advocate on behalf of their clients consistent with their ethical obligation of zealous representation. As prelitigation settlement demands are a vital tool of this advocacy, the brief argues that the “illegality exception” to the anti-SLAPP law created by the California Supreme Court in Flatley v. Mauro, (2006) 39 Cal.4th 299, has been construed narrowly to preclude a chilling effect on a lawyer’s ability to effectively and zealously represent a client. In the context of the illegality exception, they argue that there should be a bright-line rule limited to truly criminal conduct, which is different than the situation underlying the trial court’s ruling below.

This level of amicus support is not often seen for cases before the California Court of Appeal, and demonstrates the broad consensus that the trial court erred in its decision. CASP hopes that the Court of Appeal agrees and reverses the lower court’s decision.

Oral argument in this case has been scheduled for May 16, 2013. The appellants’ primary opening brief and reply brief can be read here: Appellants’ Opening Brief, Appellants’ Reply Brief

Decision Highlights Split in Application of Anti-SLAPP Law

Nikki Moore — Tue, 19 Feb 2013 22:53:44 +0000

In Dwight R. v. Christy B., the Court of Appeal recently addressed the application of California’s anti-SLAPP law to allegedly illegal acts. Some confusion on this issue arises from the California Supreme Court’s ruling in Flatley v. Mauro. Although the Flatley court held that the anti-SLAPP statute does not apply where “either the defendant concedes, or the evidence conclusively establishes” that the alleged protected activity is illegal as a matter of law, at least one court has held that mere allegations of criminality are enough to deprive defendants of the protections of 425.16.

In Dwight R. v. Christy B., family therapist Christy reported to state authorities her suspicion that Dwight was an abusive father. Christy evaluated the young girl pursuant to divorce proceedings and reported her findings as mandated by state law. The report resulted in an official investigation against Dwight, which was eventually dismissed as lacking merit.

Dwight then sued Christy and others, alleging violations of section 1983 of the federal Civil Rights Act. He claimed that Christy conspired with his ex-wife and social workers to deprive him of his constitutional right to visit his daughter. Christy filed an anti-SLAPP motion to strike the section 1983 claims and the trial court granted her motion.

The Court of Appeal upheld the ruling under the traditional two-step anti-SLAPP analysis. First, it concluded that Christy’s report was protected activity within the ambit of section 425.16(e)(2), as a statement made in anticipation of official proceedings. Next, the Court found that Dwight’s claims were based on mere speculation and that he did not show any probability of succeeding in his claims against her.

The Court looked beyond allegations to the evidence. Concluding that it lacked uncontroverted evidence that Christy engaged in criminal activity, the Court refused to deem her conduct unprotected under section 425.16.

In affirming the order granting Christy’s motion to strike, the Fourth Appellate District’s ruling effectively rejected the recent decision by the Second Appellate District in Gerbosi v. Gaims, which held that the mere allegation of illegal activity (wiretapping, in Gerbosi) prevented the application of the anti-SLAPP law.

By holding plaintiffs to the higher threshold established by Flatley, rather than that applied in Gerbosi, the Fourth Appellate District in Dwight R. helped preserve the anti-SLAPP statute’s broad construction in favor of First Amendment rights.

Did Donald Trump Just SLAPP Bill Maher?

Evan Mascagni — Mon, 11 Feb 2013 22:08:07 +0000

Last week, Donald Trump filed a breach of contract lawsuit against comedian Bill Maher in Los Angeles Superior Court. The lawsuit stems from a joke that Maher on an appearance on Jay Leno poking fun at Trump’s birther claims about President Obama. Maher said that he would donate $5 million to a charity if Trump could prove he wasn’t the “the spawn of his mother having sex with an orangutan.” Trump then sent Maher a copy of his birth certificate, and when Maher refused to pay the $5 million, Trump filed the breach of contract suit.

Unfortunately for Trump, California has one of the strongest anti-SLAPP laws in the country. SLAPPs are Strategic Lawsuits Against Public Participation. SLAPP filers don’t go to court to seek justice, but rather SLAPPs are used to silence and harass critics by forcing them to spend money to defend against meritless lawsuits. Many states, like California, have sought to combat SLAPPs by enacting anti-SLAPP laws, which allow SLAPP targets to get these baseless suits dismissed quickly and relatively painlessly. SLAPPs can take many guises, from defamation claims to breach of contracts claims like the one Trump brought.

It is possible that Maher will get the last laugh in this suit if he successfully invokes the anti-SLAPP law, which would require Trump to pay his attorney’s fees. Under California’s anti-SLAPP law, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. If Maher can prove that his statement about Trump was made in connection with an issue of public interest, he could prevail on an anti-SLAPP motion.

Public Participation Project Needs Your Help

Evan Mascagni — Wed, 30 Jan 2013 20:37:14 +0000

The Public Participation Project (PPP) is the only organization in the United States whose main mission is to strengthen the First Amendment rights of all Americans through federal anti-SLAPP legislation. PPP recently launched an Indiegogo campaign to raise funds to hire a full-time Legislative Director in Washington DC. Please check out the rewards, make a pledge, and help them reach their $50,000 goal!

www.indiegogo.com/SLAPP

PPP started as a project of CASP and has since grown to an independent organization. Mark Goldowitz, Founder and Director of CASP, is the President of the Board of Directors of PPP.

Faster than a speeding bullet, the right to appeal an anti-SLAPP motion in federal court is instantaneous.

Nikki Moore — Tue, 29 Jan 2013 22:22:14 +0000

In DC Comics v. Pac. Pictures Corp., the 9th Circuit Court of Appeals reaffirmed the rule that an order ruling on a motion made pursuant to California’s anti-SLAPP statute is immediately appealable in federal court.

In the search for Truth, Justice, and the American Way, Superman has left a trail of litigation in his jet stream. This case is one of many in a line of attempts to terminate DC Comics’ right to Superman copyrights. Since selling exclusive rights to the superhero in 1938, the creators and their heirs have disputed DC’s ownership. In the current case, the heirs hired an attorney to assist them in terminating the transfer of copyrights to DC, with a plan to develop future Superman works with the lawyer and his company.

DC filed a lawsuit, claiming that the heirs and their attorney tortiously interfered with their ownership rights to Superman in repudiating their agreements and economic relationships with the company. The defendants filed an anti-SLAPP motion, which the district court denied because defendants failed to show that any of DC’s claims arose from conduct falling within the protection of the anti-SLAPP statute.

The heirs appealed the district courts’ grant of the motion to strike and the 9th Circuit reviewed. First, the circuit court addressed whether it had authority to hear the motion. DC argued that U.S. Supreme Court’s case Mohawk Industries v. Carpenter overruled the 9th Circuit’s decision in Batzel v. Smith, which established anti-SLAPP motions as immediately appealable in federal court. DC argued that under Mohawk, a ruling on an anti-SLAPP motion did not qualify as a final judgment subject to the appellate court’s limited scope of review.

The 9th Circuit rejected DC’s argument and upheld the Batzel rule, reaffirming that anti-SLAPP suits are immediately appealable under the collateral order doctrine. The court noted that in a diversity action, where a federal court applies state law, it must strive to accomplish the goals of state law at issue. A central element of California’s anti-SLAPP legislation is to allow immediate judicial review, and this right to appeal is central to the statute’s purpose.

In a companion unpublished order, the court concluded that it had proper jurisdiction and affirmed the district court’s denial of defendant’s motion to strike because the anti-SLAPP statute did not protect DC’s activity.

Court Publishes Opinion Protecting Employee Who Complained About Sexual Harassment

Evan Mascagni — Sat, 12 Jan 2013 01:24:23 +0000

Today, the Court of Appeal, First Appellate District, issued an Order Certifying Opinion for Publication in Aber v. Comstock.

Aber v. Comstock involved a claim of sexual assault brought by an employee (Aber) against her employer and two its employees, based on a claim for sexual assault by the employees. One of those employees (Comstock), filed a cross-complaint against Aber, alleging claims for defamation and intentional infliction of emotional distress (IIED). Aber, represented by the California Anti-SLAPP Project, filed an anti-SLAPP motion. The trial court granted the motion and dismissed the cross-complaint. The Court of Appeal affirmed.

In its decision, the Court of Appeal held that Aber’s statements about the assault to the police, a nurse, and the employers’s HR manager were all protected under section 425.16(e)(1) or (e)(2), as statements made in, or in connection with matters under review by, an official proceeding or body.

The Court of Appeal also held that Comstock failed to demonstrate a likelihood of prevailing on the merits of his claims. Analyzing his first cause of action for defamation, the Court held that Comstock had not submitted any admissible evidence that Aber made defamatory statements about him. Because his IIED claim was based on the same allegations as his first cause of action, the Court held that “The complained-of conduct here- reporting sexual assault to the Kaiser nurse and Kluwer’s HR department – is hardly ‘extreme and outrageous.’ Beyond that, Comstock has provided to evidence that he suffered any emotional distress, let alone severe distress.”

The Court of Appeal’s opinion was originally filed as an unpublished decision on 12/18/12, but was certified for publication today, following a Request for Publication letter from the Association of Southern California Defense Counsel (ASCDC). In its letter, ASCDC requested publication of this opinion because it made three important contributions to anti-SLAPP jurisprudence.

1) In regard to Aber’s report of alleged abuse to a treating health care provider, the opinion extended the “mandatory reporter” rule of Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 to a new situation. ASCDC noted, “In Siam, the Court of Appeal held that the defendant’s reports of child abuse to persons who were bound by law to report allegations to government authorities were protected by Code of Civil Procedure 425.16, subdivision (e)(2). In Aber, the same rule is applied in the slightly broader context of a plaintiff’s report of abusive conduct to an emergency health care provider, who was a ‘mandatory reporter.’”

2) Through its opinion, the Court of Appeal extended “official proceeding” protection to plaintiff’s reports to the human resources manager of plaintiff’s and defendant’s common employer. ASCDC stated, “The Court reasoned this would be essential for plaintiff to overcome a defense of failing to take advantage of the employer’s preventative or corrective opportunities.”

3) The Court’s analysis of the “mixed cause of action” issue contained both a cogent summary of the prevailing rule and citations and descriptions of the key cases addressing the issue.

ASDC concluded by noting that the “Aber decision both “[i]nvolves a legal issue of continuing public interest” and “[m]akes a significant contribution to the legal literature.” The Court of Appeal evidently found ASCDC’s letter persuasive, as it issued its order today to publish the opinion. You can read the full opinion here:
http://www.courts.ca.gov/opinions/documents/A134701.PDF

Sued for Investigative Report, CBS Wins Anti-SLAPP Motion on Appeal

Nikki Moore — Wed, 09 Jan 2013 20:24:18 +0000

In Young v. CBS Broadcasting, Inc., the Court of Appeal for the Third Appellate District recently reversed a trial court’s decision and granted CBS Broadcasting Inc.’s anti-SLAPP motion.

“A Life Hijacked,” originally aired in 2008, reported on 86-year-old Mary Jane Mann’s claims that her court appointed conservator improperly managed her money and may have stolen $60,000 from the elderly woman. The report aired on Sacramento station KOVR-TV as part of the popular “Call Kurtis” segment, where reporter Kurtis Ming investigates viewers’ claims of the improper and possibly unlawful activities of others.

The plaintiff, Carolyn Young, was the subject of such story, based on an interview with Mann. CBS aired claims by Mann that Young manipulated her and the legal system to gain control of her finances. The court noted that KOVR employed images and sound effects to add drama and credence to the claims against Young, including video of her moving in slow motion, casting furtive glances.

The trial court found that Young had met her burden under CCP 425.16, and ruled that 17 of 26 statements Young objected were possibly defamatory. The trial court denied CBS’s anti-SLAPP motion as to those statements.

The Court of Appeal reversed this decision and decided a novel issue in the process. The court found that as a government appointed conservator, Young yielded great power over Mann and her other client’s financial future and, essentially, their liberty. Thus, the court found that Young was a public official subject to this type of scrutiny. As a public official, Young had to show that CBS’s statements against her were made with knowledge that they were untrue, or with reckless disregard for the truth. The court reviewed the facts and found that the story was substantially investigated and that Young failed to show CBS was guilty of any wrongdoing.

This ruling upheld the principles in New York Times v. Sullivan, a seminal free speech case that protects journalists’ reports on important public issues. In failing to prove that CBS acted with actual malice in reporting the story, Young did not prove, under CCP 425.16, that she was likely to succeed in a defamation lawsuit against CBS. Accordingly, the court granted CBS’s anti-SLAPP motion on all counts and awarded it costs for the appeal.