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The lawyers of Morris & Stone have extensive experience in virtually all phases of civil litigation in both California and Federal Courts, including numerous bench and jury trials, arbitrations, mediations, depositions, law and motion, administrative hearings and petitions for injunctive relief, with a special emphasis on First Amendment law, defamation, and anti-SLAPP.
Another seemingly obvious point that sometimes gets lost in the rush to the courthouse. Defamation is not determined by the harm suffered. If defamation is proven, then the damages suffered will, of course, be highly relevant. But the defamation must first be proven before turning to the damages.
Unless the underlying statement is defamatory, the quantum of harm suffered is irrelevant. Damages do not prove defamation.
What some fail to realize when posting on the internet is that truth is a DEFENSE to a defamation claim. In other words, it is the burden of the defendant to prove the truth of what they published.
In a recent case we handled, the defendant learned an expensive lesson in that regard.
First rule of defamation defense: Don’t say anything you can’t prove. I would think this concept would be so obvious and self-explanatory that it would never arise in my practice, but it comes up over and over. I see it often in the case of plastic surgeons. Plastic surgeons have a tough go of i...
Important court decisions which examine the interplay between the anti-SLAPP statute and certain privileges. http://californiaslapplaw.com/2016/12/slapp023-privileged-speech-can-survive-anti-slapp-motions/
http://media.blubrry.com/slapp/p/content.blubrry.com/slapp/California_SLAPP_Law_Podcast_Episode_23.mp3Podcast: Play in new window | Download | EmbedSubscribe: iTunes | Android | RSS In Episode 23 of the California SLAPP Law Podcast, we examine two cases that consider how privileged speech should be…
Interesting and completely divergent conclusions in two defamation / anti-SLAPP cases.
Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of an anti-SLAPP motion or are contemplating a defamation case th...
Can a member of a rock band really sue for wrongful termination?
Eddie Money is looking for two tickets to paradise in the form of an anti-SLAPP motion to get him out of what certainly appears to be a ridiculous suit.
His drummer, Glenn Symmonds, sued Eddie Money for wrongful termination when Money decided to use his son’s band for appearances. Symmonds claimed this “termination” was based on his age and because he has cancer. When those claims didn’t seem to be gaining much traction, Symmonds added his girlfriend to the mix, claiming that he suffered emotional distress from witnessing Money s*xually harassing her, citing an incident where he held the mic between his legs like a p***s.
Money has responded to the complaint with an anti-SLAPP motion, asserting that the manner in which he presents his music, and hence the make-up of his band, is a protected form of expression.
“The fact that Eddie did not invite Plaintiff to rejoin the band had nothing whatsoever to do with his age,” states the brief. “Nor did it have anything to do with any illness or disability that he suffered. It was based entirely on how inappropriately Plaintiff reacted upon hearing that Eddie wanted to tour with his adult children during the summer.”
I can’t opine on the likely outcome of the motion, because I don’t have knowledge of the evidence that both sides can bring to bear. But I would predict that the motion will satisfy the first prong of the anti-SLAPP analysis, since Money’s performance is a form of expression.
And I can opine that Symmonds needs to get a life. Apparently not only was Money not bothered by Symmonds’ cancer, he held fundraising concerts for him. No good deed goes unpunished.
In Episode 15 of the California SLAPP Law Podcast, we discuss (1) The perils of overreaching in your anti-SLAPP motions. Making iffy challenges to causes of action can come back to bite you, even if you win, and (2) Why you should NEVER assume it’s too late to bring an anti-SLAPP motion , and some strategies to keep in mind when you do bring an anti-SLAPP motion late in the game.
We also discuss the case of Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, which held [spoiler alert] that no leave is required to file a late anti-SLAPP motion.
We examine two cases that discuss whether it is an abuse of discretion to refuse to consider a late anti-SLAPP motion. Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 held that it is never an abuse of discretion for a trial court to refuse to consider a late-filed anti-SLAPP motion, regardless of the merits, and Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, which held that it can be an abuse of discretion to allow an anti-SLAPP motion to be brought too late in the action.
(But the title says it’s never too late to file an anti-SLAPP motion. How can you reconcile that with the holding ofPlatypus? Listen to Episode 15 to find out!)
Anti-SLAPP attorney Aaron Morris discusses why it is never too late to file an anti-SLAPP motion.
Quite the case. The law firm associate, Jeffrey Downs, was planning to make a lateral move from Anapol Schwartz to Raynes McCarty, but allegedly his former firm informed the new firm that Downs was preparing to sue the former firm for discrimination. Raynes McCarty then revoked its offer.Ironically, Downs is now suing Raynes McCarty for discrimination and defamation. Presumably, if the allegations are true, the firm revoked the offer because it feared that Downs was litigious and wanted to avoid being sued, but in the process bought itself a lawsuit in any event.Equally ironic, before leaving Downs had sent an email to his firm, seeking eight months of severance pay. That is the email that the firm is pointing to to claim that Downs was threatening litigation before his departure, which would make the warning to the new firm absolutely true.
The gay attorney suing Anapol Schwartz for defamation took the stand Tuesday to outline his departure from the firm and his decision to accept a job at Rayne...
This is such an entertaining and ridiculous lawsuit.In the movie American Hustle, Jennifer Lawrence plays a character named Rosalyn. The movie is set in the 70s, when microwave ovens were still relatively new, and Rosalyn makes the statement that microwaves cook the nutrition out of food. When another character questions that claim, she holds up a magazine and responds, "I read it in an article by Paul Brodeur."Paul Brodeur is a real person, and claims that the fictional statement from a fictional character hurts his reputation. During the 70s, Brodeur wrote about the dangers of microwave ovens, but he never stated that they take the nutrition out of food, and he therefore claims that the idea that he would have written this (fictional) article stating that food loses its nutrition when cooked in a microwave is akin to having Carl Sagan say that the sun revolves around the earth.Brodeur should have been flattered that anyone remembered him, and laughed at the joke, but this is America, so he sued for a million dollars, claiming the statement was defamatory. The movie makers responded with an anti-SLAPP motion.At the time, I gave the motion little chance of success, because I didn't think the movie makers would be able to meet the first prong of the anti-SLAPP analysis, and show that this was a matter of public interest. Apparently the judge agreed, and denied the motion.
Paul Brodeur, a science writer who claims he was defamed by something Jennifer Lawrence said in David O. Russell's 2013 film American Hustle, has survived an attempt to knock out his $1 million lawsuit on First Amendment grounds.
This will be an interesting case to follow.McDonald was accused of r**e after spending the night with a woman me met at a San Jose bar. She claimed that while partying with McDonald at his home, she bumped her head during a hot tubbing incident, and did not recall anything that followed until she woke up naked in his bed the following morning. She spent the day with him, but sought medical treatment the next day. McDonald never denied that he had s*x with the woman, but said it was consenual.For reasons I have explained here before, reports to the police are privileged and will not support a defamation action. If that is the basis for the claim, this case will soon be gone on an anti-SLAPP motion. But if the woman alleged r**e outside of that context, then McDonald's case will survive.
Former 49er claims s*xual encounter was consensual.
I first reported on this case about six years ago, and the beat goes on.A designer named Dawn Simorangkir, aka the "Bo***ir Queen", managed to get on the bad side of Courtney Love, who took to Twitter to call Simorangkir a "thieving pr******te" and the like. Simorangkir sued for defamation, and that action ultimately settled for $430,000.But Love was undeterred.She again began talking trash about Simorangkir on various social media, and the designer again sued. This time Love sought to dispose of the action by way of an anti-SLAPP motion.Will that work? Well, let's go through the analysis. To prevail on an anti-SLAPP motion, the defendant must first establish that the matter falls under the anti-SLAPP statute, and that requires a showing that the protected speech in question involves a matter of public interest."No problem," said Love's attorneys, "we can rely on the Marlon Brando case, wherein his housekeeper claimed an invasion of privacy when a television show did a story on how she was named in Brando's will." In that case, the court found the housekeeper and the will were matters of public interest because Brando was such a huge celebrity. Following the reasoning of the Brando case, Love's attorneys argued that this was not a simple matter between two individuals with no public interest, but rather fell under the anti-SLAPP statute because Love's fame made it a matter of public interest.But there was a problem. Judge Allan Goodman said, "I knew Marlon Brando, Marlon Brando was a friend of mine, and you, Ms. Love, are no Marlon Brando." Actually he didn't say that, but that was the essence of his holding. He simply found that Love's fame is not enough to make her controversies a matter of public interest.The takeaway here is that the first prong of the anti-SLAPP analysis is still alive and well. So many controversies are deemed to be matters of public interest that some attorneys fail to focus sufficiently on that prong. But if the issue is between two individuals or limited to a small group, take a hard look at that prong.
A California appeals court sees no evidence that Courtney Love's fame is on par with Marlon Brando's. As a result, the rock star will continue fighting a lawsuit from a fashion designer who claims being defamed by Love on social media and Howard Stern's radio show. Dawn Simorangkir, a.k.a. the "B...
I’ve decided to report in detail on this unpublished anti-SLAPP ruling, both because it is an interesting SLAPP case, illustrating some creative thinking, and because it gives an interesting peak behind the curtains regarding how real estate developers create additional revenue streams.Attorneys unfamiliar with the anti-SLAPP statutes sometimes make the mistake of filing a cross-complaint, or amending a complaint, that includes causes of action that arise from the currently pending litigation itself. Here, after a successful motion for judgment on the pleadings by defendant, the plaintiff amended the complaint, and a single word in the allegations seemed to make reference to something that had occurred during the litigation.The defendant latched onto that word, and claimed that the amended complaint was a SLAPP since it amounted to suing for conduct during the litigation.The takeaway, if you are disinclined to review the case in detail, is that while the plaintiff must be careful with the wording of the allegations, the defendant cannot be too technical. Allegations are, of course, taken in context.
Anti-SLAPP motions must be taken in context when deciding if subject to litigation privilege or right of redress.
A case out of England that is interesting for a couple of reasons.When I mention that I represent clients who are suing for false reviews, I sometimes get a shocked look. People feel that reviews should be off limits, since they are matter of opinion.In a perfect world that would be entirely true, but as this case illustrates, a review is not a matter of opinion if it is a complete fabrication by someone who has never done business with the company. Here, the defendant charges $5 to write fake reviews. The reviews can be good or bad, depending on what the purchaser wants. Keep that in mind whenever you are reading on-line reviews.The damages awarded are also interesting. No doubt, the plaintiff could not show any direct loss of business because of this one bad review, but the court nonetheless awarded the maximum amount permitted under the law. One's reputation has value, and the court felt a stiff damage award was appropriate for damaging the reputation.
In a case brought by a US law firm in respect of a defamatory allegation on the firm's Google Maps profile, it was held that the posting of a negative review by an English poster amounted to defamation deserving of substantial damages. In The Bussey Law Firm PC & Anor v Page [2015] EWHC 563 (QB), th…
Fake Social Media Account by Police Allowed Without Warrant
Keep your friends close, and your Instagram friends even closer. One of your online friends might be the police and a search warrant fis not needed to befriend you on social media. A US District ...
In episode 12 of the California SLAPP Law Podcast, I provide three strategies for dealing with a poorly drafted complaint that is hiding a SLAPP.Sometimes you just know that a SLAPP is hiding in the complaint, but the complaint is so ambiguous that the SLAPP allegations are unclear. What to do?In this episode, I tell you how to file an anti-SLAPP motion against an ambiguous complaint, which sometimes involves first beating it into shape. I have three approaches, which I call Demurrer, Discovery and Damn the Torpedoes.
Three Ways to Bring an Anti-SLAPP Motion Against an Ambiguous Complaint. Anti-SLAPP attorney Aaron Morris provides strategies to deal with a bad complaint.
Ouch. When this case was filed, I predicted it would end like this. When will attorneys learn?In the case, the plaintiffs' mugshots were shown in conjunction with a "gang suppression operation". They took umbrage, claiming that while they had all indeed been arrested as part of the operation, they were not gang members. They claimed such an allegation caused all kinds of emotional distress.Let's freeze right there. As I explain in excruciating detail at WhatIsDefamation.com, to a certain extent, the speaker of the alleged defamation gets to define their own terms. Defendants here may define gang member as "someone who gets arrested during a gang suppression operation".But aside from this reality, it is not enough to show that the statements were false. Because this was a matter of public interest, the Plaintiffs had to show that the defendants acted with malice.Counsel for Plaintiffs was seeking $1 million per client. He fell a little short. Instead, these Plaintiffs will get to split the cost of the defendants' attorney fees.
Judge Thomas Anderle has dismissed a lawsuit filed against the City of Santa Barbara, police chief Cam Sanchez, and police spokesperson Sgt. Riley Harwood by 10 people who claim they were the victims of slander and emotional distress when they were named in an ongoing gang suppression operation a...
The facts of this case are horrendous, and illustrate the need for such a statute.As I have written here before, we has successfully sued for this sort of conduct, but this law adds another means to help victims of revenge p**n.
A man who posted n**e photos of his ex-girlfriend without her consent on her employer’s page is the first person to be convicted under California’s “revenge p**n” law, the Los Angeles City Attorney’s Office repo...
The number of callers have gone down as the defamed public becomes more educated on the topic, but I still get a lot of calls from potential clients wanting to sue Google for the information reported in its search results.I always viewed this as wanting to sue the telephone company because it listed the phone number of a con artist in the phone book. Just as the phone book simply lists the names and telephone numbers of people with telephones, Google results are just a report of what is out on the internet. Google, quite appropriately in my opinion, has always argued that its search results are neutral, and it cannot be responsible for whatever its search spiders happen to find.With that said, the frustration of defamation victims is understandable. The squib that Google creates in conjunction with the search results can often be more damning than the defamatory posting itself, because of the truncated nature. It this recent challenge to Google, the plaintiff added a slight twist. CoastNews was miffed that it was ranked high on Bing and Yahoo, but that Google was pushing it far down the search results because it perceived CoastNews as a competitor. It sued, claiming that Google was being unfair, and should not be able to determine the position of websites returned in the search results.Google brought an anti-SLAPP motion, which was granted.
A San Francisco court ruled last week that Google has the right to arrange its search results as it pleases, which confirms the company’s long-held view, while underscoring the stark difference in how U.S. and European seek to regulate the search giant.
I applaud these restaurant owners. In recent court documents, Yelp has admitted that its reviews are not trustworthy, and these owners have found a way to get out that message. They encourage their patrons to write false bad reviews. It's just a great way to get people to realize that anyone can write anything.Ironically, Yelp wrote to the business to say that it is improperly paying for reviews. The business responded, "Yes we are. Thank you for noticing."Now the fun begins. In a case called McMillan Law Group, Yelp is suing a law firm that had dared to successfully sue Yelp. Yelp filed its own suit, claiming that if a business encourages Yelpers to write false reviews, that amounts to interference with contract. How so? Well, according to Yelp, anyone who posts a review is subject to the terms of use for the site, and those terms of use provide that the users should not post fake reviews. If a business asks those users to post fake reviews, then that business is intentionally interfering with the "contract" between Yelp and its users. If Yelp fails to sue this restaurant, how will it explain that inconsistency?
Botto Bistro in Richmond is not very concerned about its Yelp rating. In fact, in an effort to undermine the reliability of its Yelp page, the five-year-old Italian restaurant is on a mission to be...
These case are becoming so commonplace, I've taken to calling them the "second appeal". Here's the way they work.The defendant loses in the trial court, then they lose on appeal, so they bring their own action or motion back in the trial court, claiming the original verdict was achieved by a "fraud on the court", usually based on some evidence the defendant claims would have resulted in a different result.There is support for such case, but the circumstances for a successful fraud on the court claim are extremely narrow. Here, the insurance company claimed that after the trial, it obtained a declaration from a witness who said the plaintiff had lied and withheld evidence. That approach won't fly. Courts want finality to their verdicts, and that is evidence that could have been presented in the original trial. A defendant does not get to call a "Mulligan" because it failed to vigorously defend the case the first time around.In one of my cases, a plaintiff sued my client and we counter-sued. In the end, we obtained a large judgment, and just as in this case, the plaintiff appealed and lost. The plaintiff then brought an action for fraud on the court, claiming the entire matter had been covered by an arbitration agreement, and that we had "defrauded" the court by allowing it to enter a judgement, knowing the matter was subject to arbitration. You read right. The plaintiff brought the action under an agreement that contained an arbitration clause, and then claimed that we had defrauded the court by not invoking the arbitration requirement. The case was thrown out on demurrer.
The largest defamation verdict in Indiana history — more than $14.5 million awarded to a contractor who claimed State Farm Fire & Casualty ruined his business and reputation — has been upheld by the Indiana Court of Appeals. In a decision issued Tuesday, the three-judge panel found Hamilton Supe...
30 Productivity Tips You Might Not Have Heard Before | SuperheroYou http://buff.ly/1tOrSnN
The Internet is chock-full of productivity tips, with new hacks developed every day. But once you do enough research on the subject, you realize that many of the tips sound the same. That’s why we scoured...
Beach man sued for defamation over YouTube vide...
Can posting a YouTube video land you in a defamation lawsuit? Yes, as Michael Wilson found out. The Virginia Beach resident is being sued over posting a video of what he claimed was a woman delivering a FedEx package to his home, then urinating on his driveway. Shamrock Delivery, a Suffolk compa...
We discussed this case at length in the 10th episode of the California SLAPP Law Podcast. The tables have been turned on Yelp. After suing one law firm for alleged fake reviews, this plaintiff is suing Yelp for fake reviews about itself. Yelp claims that its reviews are trustworthy, despite all evidence to the contrary. Nonetheless, it pursued an anti-SLAPP motion against this claim for false advertising, and lost. It is now appealing that loss to the California Supreme Court.
Yelp’s statements to consumers about the accuracy of its review-filter software are protected speech, the website operator has told the California Supreme Court. In an Aug. 28 petition for review, Yelp urges the high court to overturn a recent appeals court decision allowing restaurateur James D...
This has been an interesting case to follow. It was falsely assumed by many that the suit would not survive an anti-SLAPP motion because it is based on a dispute over global warming, and that is a hotly-debated issue. However, the anti-SLAPP motion failed because the defamation arises from the claim that the research was conducted fraudulently. That is an allegation that can be proven true or false, and therefore is not opinion.
In a brief filed today in the DC Court of Appeals as part of his defamation lawsuit against the National Review and the Competitive Enterprise Institute, Michael Mann once again argued his case and requested that the Court proceed to adjudicate the merits of Defendants' appeal of the trial court'...
In this week’s podcast, we look at two unsuccessful anti-SLAPP motions that were decided this week, and examine where the attorneys went wrong.
Yelp continues to get into mischief. In Episode 4 of the California SLAPP Law Podcast, we discussed the case of Yelp v. McMillan Law Group, wherein Yelp is suing a law firm, claiming that it posted fake reviews, and that Yelp was damaged as a result. McMillan Law Group filed an anti-SLAPP motion, and we are awaiting the results. Now, in the case of Demetriades v. Yelp, the tables have been turned, and the plaintiff is essentially suing Yelp for its fake reviews about itself.
Yelp tries to promote the notion that its reviews are filtered and trustworthy, despite all evidence to the contrary. Demetriades, who has had several bogus reviews written about his restaurant, didn’t try to sue Yelp for those bogus reviews, but instead sued Yelp for claiming that reviews on the site are trustworthy. Yelp brought an anti-SLAPP motion, which was DENIED.
We also examined Douglas Gotterba v. John Travota, where Travolta’s former pilot from the 80′s has decided to publish a tell-all book about Travolta, that apparently alleges a homos*xual lifestyle. When Travolta threatened to sue, claiming Gotterba was subject to a confidentiality agreement, Gotterba did exactly what you are supposed to do, and filed a declaratory relief action. Basically, Gotterba is simply asking a court to determine if he is in fact subject to a confidentiality agreement. If so, he will slunk away into the night. If not, then he will be free to publish the book.
Great solution, right? Not according to Travolta’s attorneys. they claimed that Gotterba’s action was really just an attempt to get Travolta’s attorneys to stop sending warning letters to publishers. Since pre-litigation letters are privileged, they brought an anti-SLAPP motion against the declaratory relief action.The Court of Appeal ruled that the letters may have triggered the action, but they are not the basis of the action. Motion DENIED.
Travolta and Yelp Anti-SLAPP Motions. In this week's California SLAPP Law Podcast, we examine 2 anti-SLAPP motions and the rulings that came down this week.
I do get really tired of the the, "I didn't understand what I was signing" defense, which is the argument being made by Hyland in this case. For example, I have received a number of calls over the years from contestants on American Idol, wanting to sue because the show made them look foolish, after signing an agreement with the show that they would not sue for being made to look foolish.Nonetheless, the case is interesting in the anti-SLAPP context because it is outside the normal analysis of protected speech. By that I mean, when I prevail on an anti-SLAPP motion, it is often because the speech was subject to, say, the litigation privilege. It is because of that privilege that the plaintiff cannot make the requisite showing that he, she or it is likely to prevail.Here, the reason the plaintiff can't prevail is simply because the contract prohibits it. No fancy privilege, just basic contract law.
"If you watch Dance Moms online, you know Hyland is suing the show and its main star, Lee Miller, the dance studio shot-caller and show matriarch. L.A. Superior Court Judge Ruth Kwan stated she was inclined to toss out Hyland’s claim that Miller defamed her in the aftermath of an episode last ye...
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