Personal Court Reporters, Inc. v. Rand, and the Problem of Frivolous Anti-SLAPP Motions
Recently, the California anti-SLAPP statute has come under criticism from some quarters — including, most notably, a panel of justices at the First District Court of Appeal — for its potential for abuse by cagey or unscrupulous defendants. (See the First District opinion in Grewal v. Jammu here; also see Adrianos Facchetti’s blog post about the opinion.) These critics point out that (in their view) the anti-SLAPP law, designed to ameliorate the problem of abusive lawsuits stemming from the free exercise of First Amendment rights, has now ironically itself become a weapon for abusive and frivolous litigation tactics.
However, this line of criticism of the anti-SLAPP law essentially ignores a central feature of the law there from the very beginning, designed to effectively combat just this problem. Subdivision (c) of the statute provides that a defendant who files a frivolous anti-SLAPP motion, or one intended solely to delay, shall be liable for the attorney’s fees and costs incurred by the plaintiff opposing the motion. This provision obviously makes an anti-SLAPP motion much less enticing to defense counsel in borderline SLAPP cases, and (usually) works to prevent entirely meritless motions under the statute.
Moreover, it appears that courts are becoming more aggressive lately in awarding sanctions against those who file such frivolous anti-SLAPP motions. To take one recent example, this past month the Second District issued its opinion in Personal Court Reporters, Inc. v. Gary Rand, et al., awarding sanctions of $22,000 to the plaintiff after defendants filed what the court determined to be a frivolous appeal of an order denying the defendants’ equally frivolous special motion to strike.
The case involved garden variety collection claims, brought by a court reporting agency against attorney Rand and the other partners at his firm for past due invoices for court reporting services. The defendants responded by filing an anti-SLAPP motion, attempting to argue that the complaint arose from the defendants’ petition activity in advocating on behalf of their clients in depositions and court proceedings. The trial court and court of appeal summarily rejected this argument, finding, of course, that the plaintiff’s claims arose from the defendants’ failure to pay their court reporting bills, and not from any petitioning activity that occurred in the proceedings the court reporters transcribed.
The problem for the defendants, and the hook used by the Court of Appeal to issue its sanctions, was that these very same defendants had made very similar arguments in a prior case. That lawsuit, California Back Specialists v. Rand (which also resulted in a published opinion on appeal) was also a collection matter, brought by a group of medical providers to enforce a lien on the proceeds of a personal injury suit won by the defendants on behalf of their clients. In that case, the defendants had also filed an anti-SLAPP motion, which the trial court denied and deemed frivolous, awarding sanctions against defendants. The appellate court upheld the trial court’s decision, including its decision on the sanction award. In Personal Court Reporters, Inc. v. Rand, the Second District court looked none too kindly on another appeal from the same defendants asserting the same arguments in a very similar matter, and found the appeal frivolous and intended solely to delay.
By certifying this decision for publication (and indeed, by certifying the California Back Specialists decision as well, which upheld an award of sanctions), it is clear the court intended to send a message to litigators: meritless anti-SLAPP motions are a serious abuse and will be punished.