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Appeals and Anti-SLAPP Law: California Appellate Law Podcast Episode 1 (Jul. 1, 2020)

Tim Kowal     July 2, 2020

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here.

The inaugural episode of California Appellate Law Podcast discusses California's anti-SLAPP law, Code of Civil Procedure section 425.16 and several key decisions by the California Court of Appeal and the California Supreme Court. In 1992, California enacted Code of Civil Procedure section 425.16 which provides a mechanism for quickly dismissing frivolous lawsuits and awarding attorney’s fees to the defendant. The law applies to lawsuits that arise from free speech or petitioning activity, such as filing a lawsuit.

Listen here.

Show Notes:

Appellate Specialist Jeff Lewis' biography and background.

Appellate Specialist Tim Kowal's biography and background.

California Supreme Court Cases on “Prong One” of the Anti-SLAPP Analysis:

City of Cotati v. Cashman (2002) 29 Cal.4th 69.

Park v. Board of Trustees (2017) 2 Cal.5th 1057.

Wilson v. CNN (2019) 7 Cal.5th 871.

Recent Cases on “Prong Two” of the Anti-SLAPP Analysis:

Gruber v. Gruber (2020) 48 Cal.App.5th 529.

Standard General v. Charney (Cal. Ct. App., May 4, 2020, No. B294313)  [unpublished].

Recent Cases on “Prong One” of the Anti-SLAPP Analysis:

South Coast Property Services, Inc. v. Caelus (Cal. Ct. App., May 6, 2020, No. G057785) [unpublished].

Gotterba v. Travolta (2014) 228 Cal.App.4th 35

Recent Case on Anti-SLAPP Applied to a Federal Claim:

Patel v. Chavez (2020) 48 Cal.App.5th 484.

Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010).

Other Cases Mentioned:

Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180.

Dowling v. Zimmerman 85 Cal.App.4th 1400.

Westreich v. Higa (Cal. Ct. App., May 5, 200, No. B293726) [unpublished].

Third Laguna Hills Mutual v. Joslin (Cal. Ct. App., May 5, 2020, No. G057230) [unpublished].

Please send feedback and suggestions for future episodes to [email protected].


Announcer : 0:07

Welcome to the California Appellate Law Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Jeff Lewis : 0:23

Welcome, everyone. I'm Jeff Lewis, Tim Kowal : 0:25

and I'm Tim Kowal. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some about appellate perspective on various issues that arise both in trial court and on appeal. Jeff Lewis : 0:52

On this week's episode, we will be discussing California's anti slap law and a handful of cases from the Court of Appeal applying that and slapp law Tim Kowal : 1:01

and at the end of the episode, we'll discuss some recent activities by the court of appeal in light of the COVID-19. Shut down. As Jeff said, today, we'll be discussing some anti slap cases. Before we dive in Jeff, why did we decide to cover slap for the first episode of The California appellate law podcast? Jeff Lewis : 1:20

Well, anti-slapp issues have become such a fixture of civil procedure that it really has to be among the first considerations in any lawsuit. We now have close to 30 years of jurisprudence on the slapp statute. And whether you represent the plaintiff or the defendant, you simply must be prepared for the implications they will have on your case. Tim Kowal : 1:39

I completely agree. I think most of our listeners would agree as well. But Jeff is an appellate specialist, I think you and I might be able to give our trial attorney listeners some additional perspective on the procedural impacts of the slap law. And I know you won't say this on your own behalf but Jeff is one of the preeminent anti slapp attorneys in California and he's litigated so many slapp issues, both in trial courts and appellate courts, that he's now sought out as an expert witness on slapp issues. So start with the basics. Jeff, what is a slapp and what does California's anti slapp law do? Jeff Lewis : 2:14

Well, thanks for the kind words, slapp stands for strategic lawsuit against public participation. And California's anti slapp law is a procedure to weed out certain types of lawsuits that arise from free speech or petitioning the government. If a defendant believes they've been sued due to engaging in this protected activity, the defendant can find an anti slapp motion. If the court finds that the lawsuit was filed based on protected activity. The burden then shifts to the plaintiff to put on evidence and prove that the case has some merit. If the plaintiff fails to do so the case is dismissed and the plaintiff will have to pay the defendants attorneys fees. The law has been around since 1992. But in recent years, it has been my experience that the courts are construing that first part of the test. What we call prong one does it arise from protective activity? They've been construing prong one very narrowly, and fewer and fewer cases are receiving slap protection in my in my judgment. Tim Kowal : 3:12

That's true. I've also seen that trend toward narrowing the scope of prong one. Not only that, but on the other side of that coin, there also seems to be a trend toward deciding slap motions be a prong to, with cases stressing the very low factual threshold to establish prompt to so in practice, really, plaintiffs attorneys have two ways of trying to defeat anti slap motions. Jeff Lewis : 3:35

Right. And to better prepare to approach this tightening of the slapp statutes application, we thought it would help our listeners to trace through some of the key California Supreme Court cases applying the slap statute. And the first Supreme Court case really laying the groundwork for the prong one application was the 2002 decision in city of cotati versus Kashmir. Tim Kowal : 3:56

Right and starting with the cotati case, the California Supreme Court has employed a seemingly simple test on prong one. That test is if the plaintiff could establish the elements of its claim without relying on allegations of protected activity, then the suit did not arise from protected activity. And thus it's not a slap. That means that just because a lawsuit was filed in response to another lawsuit, as was the case in city of cotati, that is not enough by itself to make the suit a slap. Jeff Lewis : 4:29

Right, it could Totti case provided a straightforward analysis that depended on the elements of the cause of action. Right? Tim Kowal : 4:36

That's right. And that elements based approach that is focusing on whether any element of the plaintiffs cause of action is based on protected conduct. That has been the key focus of analysis ever since. But as some of the cases bear out many defendants, trying to broaden the reach of the anti slap motions have urged broader approaches. So the 2017 decision in Park v. Board of Trustees of California State University is a great example. Its facts are pretty simple. And by the way, citations to all cases discussed on the California appellate law podcast may be found in the show notes. So in that Supreme Court decision of Park v. Board of Trustees Park is a Cal State professor. He alleged that the university discriminated against him when it denied him tenure, the University in response filed a slap motion. So going back to our touchstone and cotati. Let's think about the elements of parks claim, which would be an unfavorable action by an employer that's based on the employee's race. On the face of parks claim there's nothing protected about the university's decision to deny tenure because of parks race. So under the pure elements based approach, there should be no grounds for a slap. So what am I missing? Jeff? You're missing some defense lawyers who really wanted to slap law applied here. What is Interesting in the park case is that a clever argument that the university made the attempt through, though unsuccessfully, to turn the plaintiffs case into a slap. Jeff Lewis : 6:08

And again under the rubric going back to 2002. If plaintiff can assert the elements of its claim without relying on protected conduct, there is no slap. And a decision to deny tenure is not based on protected is not itself protected conduct. Instead, the University argued that what part was really challenging was not the decision to deny tenure. But the discussion by the Board of Trustees discussions held during official proceedings. Tim Kowal : 6:35

Yeah, and that seems a little bit like a subtle shift, but you can see why the board had to try it out. That's because from the board's point of view, Parks whole case was going to be built around the racial motives behind the Board's decision to deny tenure. And the way Park was going to try to prove those racial motives was obviously going to be based on statements that the board members made during those deliberations. And those times payments should be protected under the slap statute. So it was a good effort by the board but still no slap. The Supreme Court rejected the board's argument. Of course, the board was free to argue as part of its defense that its discussions revealed no discriminatory motives behind its decision to deny tenure. But the elements of parks claims and that's the touchstone this elements but based approach, the elements of parks claims did not depend on those discussions. And that's all that matters and that elements based approach to prong one. Jeff Lewis : 7:33

Right, right. And then just last year, in 2019, the California Supreme Court handed down another anti slap decision in Wilson versus Cable News Network CNN. What happened in that case, Tim? Tim Kowal : 7:45

You know, courts really continue to struggle with the same kind of employment actions as was involved in park. So the High Court took another crack at it in Wilson v. CNN. Wilson was a journalist with CNN. He began raising concerns about CNNs treatment toward African Americans like himself. Wilson also had taken paternity leave. And shortly afterward, CNN began assigning Wilson menial assignments, and ultimately cnn fired him. Wilson sued alleging that cnn had discriminated against him and retaliated against him, as evidenced by assigning and menial work, despite his years as an award winning journalist. Jeff Lewis : 8:27

Well, so far this case of Wilson sounds a lot like park where the court held that the wrongful motives were not part of the plaintiffs claims and thus could not support the employer slap motion. Tim Kowal : 8:37

I thought it was quite similar, but the Court of Appeals split on the case and the Supreme Court issued a lengthy decision that is rather difficult to follow. It reads in large portions of it a bit like a law review article. But the upshot is this, an employment action might be protected if it was in furtherance of the employers speech or petitioning rights. But the court also held that whether and employers action was based on protectable on a protectable motive or a wrongful motive could not be determined based on plaintiff's allegations by themselves. In the case of Wilson, the plaintiffs allegation that he had been fired because of racial discrimination would not be taken at face value, because cnn had in fact carried its burden to make a prime aphasia showing that it had fired plaintiff for plagiarism. The court would credit that toward the prong one analysis, but Wilson does expressly reiterate Park's holding that the defendant must show the protected conduct supplies at least one element of plaintiffs claim. So the court has expressed clearly now in two recent opinions that the approach to prong one is element based. Jeff Lewis : 9:51

So Tim, why is the supreme court conduct such lengths in Park and Wilson to emphasize the element based approach to prong one in SLAPP cases? Tim Kowal : 10:01

I think perhaps the court felt that clarification was needed because some of the intervening intervening cases had muddied the waters a bit. For example, the Supreme Court's 2011 case in Oasis, West realty versus Goldman, had held that a client's lawsuit against its former attorney was not a slab. But in so doing the court started not with prong one, but with prong two. And under the prong two analysis, the court had inferred that the attorney had relied on confidential client communications. Then taking that inference back to the prong one analysis. The court held that an attorney's misuse of client information was not protected, and thus the suit was not a slap. This approach might have given the idea to the defendants like like the Board of Trustees and Park, that prong one might turn on issues and defenses in the case other than Simply the elements of plaintiffs claims. Jeff Lewis : 11:03

And you will see the reason Park and Wilson are important as we discuss some recent appellate decisions. defendants continue to file slap motions by pointing to different kinds of protected activity that might lurk behind a lawsuit. Some of the recent cases suggests the courts may begin to avoid these prong one arguments altogether, instead, go directly to prong two's factual inquiry. Tim Kowal : 11:27

Alright, so let's talk about some more recent cases. Jeff, can you tell us about the recent case in Gruber versus Gruber? Jeff Lewis : 11:35

Sure. Gruber involves an anti slap motion to a malicious prosecution claim and as an aside and malicious prosecution claims whenever a malicious prosecution claim is filed, the courts have generally held that prong one is satisfied automatically because malicious prosecution by its nature involves filing a lawsuit in the prior case so it touches upon protected activity. Now in the Gruber case, a couple of suits Their daughter in law for repayment of loans or their former daughter law for repayment of loans. And they also alleged promissory fraud a very serious claim. The daughter in law successfully defended against that suit on the grounds that the monies were gifts, not loans. And for good measure, she sued her parents in law for malicious prosecution, claiming that they had sued her for retaliated in retaliation for divorcing their son Tim Kowal : 12:23

Our profession really can be depressing can it. Jeff. So I take this as this is about the time that a slapp motion appears on the scene. Jeff Lewis : 12:31

Right in response to the malicious prosecution case the parents filed an anti slapp motion the superior court denied the anti slap motion and the parents appealed. Division Two of the second district issued its decision. And the Gruber court held that when there's a dispute over what facts that previously suing parties knew at the time they brought the suit, meaning the parents hear the in laws. A trial court faced with an anti slap motion by those parties must decide whether the malicious prosecution plaintiff has shown that our allegation that those parties lacked Problem cause has minimal merit. How is this to be done? They held that trial court should do so by resolving all factual disputes regarding what was previous with the previously suing parents knew by accepting the plaintiff's evidence is true. And then through that lens, evaluating whether the prior claims were legally and factually tenable. The court applying that holding concluded that the daughter had proven that her malicious prosecution claim against her parents in law had minimal merit, and that the trial court acted properly in denying the anti slap motions to dismiss that claim. Tim Kowal : 13:36

It sounds like there was not really much in the way of a prong one analysis, which is not surprising in a malicious prosecution action is prong one is a given. So Jeff, why did you find this case? Interesting? Jeff Lewis : 13:47

Well, I didn't find it interesting as a prong one case because like I said, All my prosecution cases involve prong one findings automatically. This is really a prong two case and the focus was on whether the plaintiff could prove the minimum merit of their case. This case provides a lot of wiggle room for plaintiffs and malicious prosecution cases to find or create tribal issues of fact as to facts known by the defendants at the time the prior action was filed. It's an example of the extremely lenient standards, the courts are giving prong two analysis. Tim Kowal : 14:21

I know you've handled malicious prosecution cases, Jeff, so I wanted to ask you this. We know that malicious prosecution actions are disfavored in the law. Do you find it noteworthy that the Gruber court here emphasize that only minimal merit was needed to survive a slap motion even on a disfavored claim like malicious prosecution? Jeff Lewis : 14:40

Yes, indeed, the courts are not going to get rid of malicious prosecution actions at the slap stage unless it is obviously in the hope of hopelessly frivolous, most malicious prosecution actions are going to survive a slap. Tim Kowal : 14:53

Okay, let's talk about another case. This one involving prong one, whether the lawsuit arises from protected activity The next case is South Coast property Services Inc versus caylus Corporation. This is a case out of the fourth district division three in my neck of the woods in Santa Ana. It's written by Justice Aronson in it is another unpublished case, but it gives an indication which way the winds are blowing. South Coast property involves a claim to rescind an agreement to purchase business assets. In response to the rescission complaint that the defendant filed a cross complaint for repudiation of that same agreement. plaintiffs then responded by filing an anti slap motion. So let's try to imagine what the allegations of the cross complaint must have been. It alleges a contract obviously, it alleges that South Coast had failed to perform on that contract. And it also must allege that based on South Coast statements and the rescission complaint southcoast has no intention of ever performing. So Kayla says cross complaint seeks relief from southcoast. So pretty blatant slap in my eyes, wouldn't you think, Jeff? Jeff Lewis : 16:06

Absolutely. I can certainly see why they are anti slap motion was filed here. But what did the court think? Tim Kowal : 16:12

Well, the trial court was vexed, and it called the question a close one. But it ultimately denied the anti slap motion, because the trial court thought that even though the anticipatory breach cross complaint had been precipitated by South Coast rescission complaint, there must have been a decision to rescind that predated the rescission complaint. And so the trial court reasoned that the cross complaint was really based on that underlying decision to rescind which was not protected by the slap statute. It was not based on the the trial court reason that the cross complaint was not based on the lawsuit itself, which merely gave notice of the plaintiffs decision to rescind. And the Court of Appeal agreed with that reasoning. That seems pretty subtle. So The Jeff Lewis : 17:00

Court held that a decision to rescind an agreement is separate distinct from a lawsuit for rescission. Did the cross complaint clearly allege that the breach was based on the decision to rescind rather than the filing of the lawsuit for rescission? Tim Kowal : 17:12

No, in fact, it did. As far as one can tell from the cross complaint, it arose from South Coast filing of the complaint. So you can see again, why South Coast had to bring the slap motion, because just from the four corners of the cross complaint, it sure looks like it arose from Clearly Protected activity. Jeff Lewis : 17:30

So why did the court find that prong one was not met here? Tim Kowal : 17:35

Well, as often happens on appeals, the court reaches its holding based on something neither party ever considered or even argued, instead of looking at just the four corners of the cross complaint that's alleged to be the slap. The court also took a look at South Coast's rescission complaint. And in that complaint, South Coast had alleged that some months before it ever filed the rescission complaint. It had sent Notice of rescission to kailis, the court found that allegation to be a judicial admission that the decision to reset to rescind had in fact been a separate decision that predated and was distinct from the filing of the complaint. And again, that decision to rescind was not protected. As an aside, courts sometimes make mischief with judicial admissions, which is a subject that maybe we'll cover in a future episode. But it is worth noting that there is currently a split of authority whether a judicial admission must be counter admitted in order to be binding. In other words, ask yourself is an app is an allegation in a complaint, a judicial admission by itself? Or must the defendant admit the allegation in its answer before it becomes a judicial admission? This court the fourth district Third Division, in an unpublished 2017 decision held that admissions and a complaint that have not been admitted in the answer cannot deemed judicial admissions. Interestingly, that the same court does not follow its own precedent. In this case, the south coast versus Kayla's case that we're talking about. One of the privileges the courts enjoy by by way of the use of unpublished decisions, I suppose. So back to the reasoning of South Coast versus kailis. The court explained that based on South Coast own allegations in its complaint, it had made the decision to rescind prior to filing its lawsuit, and that decision was not protected. Thus, the Court affirmed the denial of the anti slap motion. Jeff Lewis : 19:34

This sounds like a good example of why it's so important to carefully consider every allegation of pleading for consequences and possibly drawing an anti slap motion on the other side once it's filed. If the plaintiff had not served a rescission demand prior to its lawsuit, or if it not alleged that it had given notice of rescission and lawsuit. Do you think the court would have found a slap here? Tim Kowal : 19:57

That's a good question. The Trial Court of apparently did not rely on the plaintiff allegation that an earlier notice of rescission had been given. The trial court apparently just inferred that that decision must have predated the complaint. But the Court of Appeal went out of its way to find factual support for that inference in the record. I suspect the court would have reached the same result without the allegation. But as you said, it would be a very subtle inference, I think. Jeff Lewis : 20:24

And does that South Coast property case rely on park? Tim Kowal : 20:29

Yes, in fact, it prominently cites both Park and city of cotati in affirming the slap analysis is focused on the plaintiffs theory of liability and the elements of the cause of action. So again, we have this elements base focus on prong one. The court and South Coast property notes that the cross claim or repudiation, quote does not depend on Kayla says rescission cause of action and quote, but rather on the underlying decision to rescind. I do find it curious that the south coast property courts Didn't cite the published and much more star studded decision out of the second district division six in Goddard versus john travolta. That was a 2014 decision in which john travolta, his former pilot had blabbed to the press that he and Travolta had had a sexual relationship. There was a termination agreement with the confidentiality clause and Travolta's attorney threatened to sue for breach of it. But God claimed that there was a different agreement without a confidentiality clause. So garba filed his own complaint for declaratory relief, asking that the court rule which agreement applied. Jeff Lewis : 21:38

It sounds a lot like South Coast property. I assume an anti slap motion was filed next. Tim Kowal : 21:42

Right, Travolta filed a slap motion arguing garbus complaint had been retaliation against Travolta's attorneys demand letters, which were protected litigation activity. Just as in South Coast properties we just discussed the court disagreed finding that there was no slap The court concluded that God Arbaaz complaint did not arise from this, what it called saber rattling demand letters from Travolta's attorney. Rather, the court reason that God or buzz complaint concerns simply the validity of the agreements. The demand letters just gave notice of the existence of that dispute. The demand letters were not relevant to how that dispute ultimately would come out, thus no slap. This is another one of those cases that parse the difference between speech that is an element of the claim and speech that is mere evidence of the claim. As the court held the pilots lawsuit, quote, does not seek to curtail Travolta or his attorneys right to send demand letters. So there was no protected activity. My own view is that despite despite the courts efforts to enforce this distinction, we'll continue to see it come up. When it comes to subtle distinctions like this. It is too much to expect the results to come out consistently in the example of a declaratory relief claim like in God or above Example. The existence of a dispute is in fact, a necessary element to establish before a court may grant relief. That point was not really addressed in garba. And I think it could be asserted as a legitimate basis to argue that a debt relief claim may in fact arise from a quote, saber rattling demand letter. Jeff Lewis : 23:20

What do you think, Jeff? I think enclose cases like this where the court has to make subtle distinctions in a closed case, the court should defer prong one cases and finding that protective activity was the basis of the lawsuit and apply the slap law in the the intent of the legislature was at the slop law be construed broadly. Tim Kowal : 23:40

It is a remedial statute, isn't it? It is. So the next case we're going to discuss is standard general versus dub Charney. It's another unpublished but instructive case out of the second district division five. What happened in standard GENERAL JEFF? Jeff Lewis : 23:59

Yeah, this is an May 2020 case and between 2016 and 2018, standard general had obtained a series of judgments against charny, totaling nearly $30 million. And as part of its efforts to collect on that on those judgments, standard general then sued Chinese attorney key think standard allege that charny had attempted to shield real property that standard general could use to collect all these judgments by fraudulently transferring the property to attorney Keith Fink. And Charney and Fink filed anti slap motions in response to the complaint, and the motions were denied. And charny and Fink appealed. Tim Kowal : 24:39

Well, so far, this seems like a like it involves clearly unprotected activity, but I'm biased because I was on the judgment creditor side in a similar lawsuit recently, where the sixth district agreed with me that transferring property to keep it away from creditors is not protected merely because the transferee is an attorney. Jeff Lewis : 25:00

Well, the trial court agreed with you, Tim here. But interestingly, interestingly, the second district skipped prong one entirely. In fact, the Court of Appeal actually assumed that the lawsuit arose from protected activity. He didn't have any analysis on that issue. Instead, the court focused solely on prong two, and the plaintiffs ability to prove the minimal merit of the claim against attorney think, on appeal, the Court affirmed the denial of the slap motion upon that standard general had made the requisite low threshold showing that the deeds of trust were fraudulent, and that keep thinking did not take the interest in property in good faith and for a reasonable reasonably equivalent value. Tim Kowal : 25:38

So what kind of guidance does does this case give us does it tell us anything about how courts are likely to handle prong one? Jeff Lewis : 25:46

To be clear, the Court of Appeals did not hold there was protected activity it skipped over prong one. It's not really useful as authority on the prong one issue but underscores how low the prong to burden is once you get past that Minimal merit lens used by the court of appeal is extremely low. Here the only real proof that plaintiff standard general had at the stage of the slap motion was circumstantial evidence pertaining to the timing of the Real Property transfers and other indirect evidence of fraudulent transfer. Tim Kowal : 26:20

I had mentioned a recent sixth district case I handled with analogous facts. The defendant attorneys argued in that case that the money they received from a judgment debtor had been used for litigation and was therefore protected. relying heavily on Park and Wilson the sixth district held that this was not a slap and the sixth district did rely on prong one in fact, that was that was the entirety of the analysis is that there was no no protected activity at issue. All right, let's change gears slightly and talk about a California case dealing with the federal claim. The cases Patel vs. Chavez out of the second district, the division one by Justice rothchild. The employer sued the employee alleging that the employee had violated section 1983. By falsely testifying at a labor hearing on wage claims, the employee filed a slap motion. on appeal, the employer made the interesting argument that the slap statute does not apply to federal claims. The employer obviously got this idea by reading some federal cases because the slap statute is partly procedural in nature. There are interesting Erie doctrine issues at play when filing a slap motion in federal court. And it is true that a federal court can only entertain anti slap motions in connection with state law claims. The authority for that is Tilton versus Hallmark cards, which will cite in the show notes. Jeff, have you dealt with any slap issues in federal court? Jeff Lewis : 27:52

I have I try to avoid federal court where I can on these snap motions can be very thorny in federal court. They only apply to stay claims as you mentioned, and also because the slop statute is procedure, all federal courts apply it through the lens of applicable federal tools like rule 12 b six or rule 56. And the discovery state does not apply. Tim Kowal : 28:13

That brings up another issue in Patel. because Congress has indicated that section 1983 claims are remedial in nature and therefore to be construed liberally. The employer argued that the discovery stay imposed by the slap statute, contravened congressional intent behind section 1983. The Patel court noted that the employer should have sought relief from the stay as contemplated by the slap statute. So the so the court ultimately rejected that argument. So in that vein, here's an appellate tip for trial counsel, plaintiffs who are opposing an anti slap motion to a section 1983 claim and state court should consider seeking leave to conduct discovery, citing that without such relief, the automatic Xj would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress concerning 1983. And they can cite the Patel case at page four for that proposition. If such relief is denied in the anti slap motion is granted this could tee up a good argument on appeal that the trial court applied section 425 point 16 the anti slap statute in such a way as to improperly impinge on substantive federal rights, as warned against in Patel. Jeff Lewis : 29:33

Yeah. You know, I agree. I think I'd broaden that out though. I think whenever you're opposing an anti slap motion if discovery is needed, trial counsel should definitely think about filing a motion requesting discovery. And the denial of that motion provides another tool for appellate lawyers like you and me to raise on appeal. Let's talk about another prong one case Greco v Greco. This case was filed in Shasta County between two siblings fighting over their late parents trust the defendant, the Brother used trust assets to fund his litigation expenses, and his sister bought a lawsuit to challenge the brother spending of trust money. The brother responded to a sister's lawsuit with an anti slap motion, claiming that the lawsuit arose from his constitutional right to file lawsuits and petition the government. The trial court denied the motion finding the enactment is burden on your problem. To prove that the lawsuit arose from protected activity. The Court of Appeal affirmed, it agreed that the gravamen of most of the lawsuit was simply misuse of trust funds not litigation. For part of the appeal, the Court of Appeal held that one cause of action routed on statements made about the prior litigation or protected activity. And the case was remanded for further proceedings just on that one claim. Tim Kowal : 30:45

This case also sounds like that six district appeal I just won where it found that there was no slap so I'm anxious to hear how you come out on this case, Jeff? Jeff Lewis : 30:54

Well, in grecco, the brother argued that funding of civil litigation is communicative conduct that falls within seconds Four to five point 16 anti slap statute. The Court of Appeal disagreed and found that the most important allegation in the complaint was that the brother took the funds out of the trust. The fact that he decided to use the funds for litigation was not relevant to the outcome of this decision. I have to say, I don't really agree with the outcome here. If I were wearing a black robe, I would have found that the claims rested on using the trust funds for an improper purpose. The improper purpose was pending litigation. And there's not enough daylight between the act of taking the funds and using it for the litigation to conclude that it did not arise from the prior lawsuit. I would have found the wrong one applied. Tim Kowal : 31:39

Well, I guess I don't have to tell you that I do agree with the grecco. Court. But I will tell you that when I looked at this case again recently, I started to agree with you, Jeff. Many cases mentioned that litigation funding is protected. And they they repeat that almost like a mantra. And in Greco the funds were used only for litigation. But then I remembered that I had once spent some time researching the source of the mantra that litigation funding is always protected activity, but none of the cases that invoke that mantra actually explain what it means. The only good example I've ever found of protected litigation funding is a case a 1995. case out of the fourth district, Ludwig versus Superior Court. And in that case, Ludwig was a developer competing on a shopping mall project in the city of Hesperia. And he had hired people to file to file meritless lawsuits against a competing mall project in the city of Barstow and Barstow sued, sued Ludwig and Ludwig filed a slap motion. And the court said that no because funding a lawsuit is no different. From filing a lawsuit yourself. The litigation funding was protected activity. Ludwig had used his own money for litigation in Barstow did not claim that Ludwick had wrongfully obtained the money that Greg case, if I'm not mistaken, made clear that there was no cause of action that said that the use of the money was somehow an abusive process or malicious prosecution. The claim was only tethered to the, to the manner in which the funds were obtained. You know, Jeff Lewis : 33:17

I would guess that the sister in that case avoided alleging malicious prosecution to try to avoid an anti slap motion yet found yourself basically and it's not motion nonetheless. Tim Kowal : 33:28

I think she had shrewd counsel in that case. Jeff Lewis : 33:33

All right. Shifting gears here. Are there any other rules about slow slap motions that you find Trial Lawyers sometimes overlook? Tim Kowal : 33:40

I've noticed that many attorneys assume the automatic stay imposed by the slap statute covers the entire case and even during the appeal, that's not necessarily so in all cases. Normally, a slap motion filed by certain defendants does not stay the action as to other defendants. The same goes for appeals from such motions. The authority that counsel may look to for that is Dowling versus Zimmerman, which holds that perfection of an appeal from an order granting a slap motion does not automatically stay enforcement of a judgment, awarding attorney fees and costs. Another tip counsel should be aware of is that slap orders are immediately appealable. So do not be misled into thinking that a subsequent judgment affects your time to file a notice of appeal. And the same is true in federal court. But do note that a slap order in federal court is not appealable when it resolves less than the entire case. The Case for that is high end vs Hummer, a ninth circuit decision. Those are about all the slap cases I can manage in one sitting. What's happening in legal news this week? Jeff Lewis : 34:50

Well, let's talk about a few cases that caught my eye over the past few weeks. The first is West stretch versus brandel. A unpublished decision Coming out of the second district, involving a lawyer who repeatedly cited unpublished cases in his brief, he did it in his opening brief. The court and the opposing counsel reminded him of the rule against citing unpublished cases. And the appellate counsel did it again in the reply brief, and in this unpublished disposition, the Court of Appeal impose sanctions of $1,000 for citing to an unpublished case and in his brief, that seems a little harsh. It does and it seems, you know, usually there has to be more conduct more misconduct than simply citing unpublished case. For the Court of Appeal to issue sanctions. I was surprised, but it's a good warning for everyone that you cannot cite unpublished cases. Some other news, you know, the courts are starting to reopen after the COVID-19 crisis up in LA. We just had our first full week of the court opening and started to appear telephonically in the spirit court and things are moving very slow trials are getting set very far out. And clients are getting frustrated by how slow things, things are moving both in terms of trials and the impact on the appeals and the preparation of appellate records. In addition to that, Court of Appeal is still conducting oral argument. But it's all happening by telephone. I had an argument a couple of weeks ago in the second district by phone, it was very different to do it by phone and not be able to see the facial expressions of the three justices hearing the case. But I muddled my way through it. And I see that the fifth district is starting to go to Video arguments. And there's a rumor that the second district starting as early as July might move all of their arguments to video, but I don't think that's happened yet. Tim Kowal : 36:55

I imagine eventually we'll have all of the oral arguments in the Courts of Appeal v. A video What do you think? Jeff Lewis : 37:01

I think that is the way we're going to go and I know my clients enjoy down to the fourth Appellate District seeing the live stream of the videos and not having to come down to the court of appeal. Well, that wraps up this episode. Tim Kowal : 37:15

If you have suggestions for future episodes, please email us at cow [email protected] that's ca l [email protected]. On the next episode, we will cover dimmer orders which are not appealable except Jeff Lewis : 37:30

when they are right See you next time. Announcer : 37:34

You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at CEO podcast calm that's ca l podcast. fast.com thanks to Jonathan Caro for our intro music, thank you for listening and please join us again.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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