If you just lost your appeal, handled by attorneys at a high-powered law firm, with fees approaching – oh, heck, who knows, but three lawyers billing at a “BigLaw” firm have to run up a pretty hefty bill on a case potentially worth billions of dollars – you might not be happy with language in the introduction of the opinion characterizing your appeal as “utterly without merit” and noting that the court declined imposing sanctions only because the court did “not wish to further delay the long-overdue trial of the merits of [the] action.” That’s exactly how the court opened its opinion in Hewlett-Packard Co. v. Oracle Corp., case no. H039507 (6th Dist. Aug. 27,…
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When it comes to the anti-SLAPP statute, there’s no such thing as “just a little” criminal extortion
The courts’ application of California’s “anti-SLAPP statute” — Code of Civil Procedure section 425.16 — has been heavily criticized as being too broad. Section 425.16 authorizes a “special motion to strike” one or more causes of action in a complaint. A defendant succeeds on such a motion if he can demonstrate that (1) the suit is a SLAPP — i.e., a Strategic Lawsuit Against Public Participation — because the causes of action are based on free speech on a public issue or on petitioning of the government and (2) that the plaintiff is not likely to prevail in the action. Witkin describes the type of lawsuits section 425.16 was designed…
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Self-Represented Attorney May Not Recover Fees on Anti-SLAPP Motion
In Taheri Law Group v. Neil C. Evans, case no. B192828 (2d Dist. Feb. 26, 2008), the Court of Appeal holds that the attorney fee provision in the anti-SLAPP statute (Code Civ. Proc., § 425.16) does not entitle a self-represented attorney to recover fees for bringing a successful anti-SLAPP motion. This is merely an extension of the similar holding in Trope v. Katz (1995) 11 Cal.4th 274, which held that a self-represented attorney could not recover fees under a contractual fee provision. The Taheri court makes clear that an attorney-client relationship is necessary before fees may be recovered. The identical issue of anti-SLAPP attorney fees was treated in much greater…
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Probable Success on an Anti-SLAPP Claim
The standard for demonstrating a probability of success on a claim that a party seeks to dismiss on anti-SLAPP grounds has defied any clear definition. In Booker v. Rountree, case no. G038083 (4th Dist. Oct. 4, 2007), the court finds the standard is met under a quasi-summary judgment analysis — it is enough that the parties’ declarations gave competing versions of the facts and that Booker’s version, if believed, would lead to success. First, the facts. Two wheelchair-bound plaintiffs — Gunther and Rountree — filed separate lawsuits against Booker for violations of the Unruh Act relating to inaccessibility of Booker’s restaurant to persons in wheelchairs. Both were represented by the…
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Anti-SLAPP Attorney Fee and Costs Application is Timely any Time Prior to Final Judgment
In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it is not made until after resolution of the appeal of the order denying the anti-SLAPP motion. Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box. Jack in the Box…
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California Anti-SLAPP Statute Does Not Protect Acts in Furtherance of Free Exercise of Religion
When defendants were sued by their neighbors for nuisance arising from smoke and ash entering the neighbors’ properties from fires defendants regularly lit as part of religious rituals in their backyard, they filed a motion to dismiss under the anti-SLAPP statute (Code of Civil Procedure section 425.16). The Court of Appeal affirmed the trial court’s denial of the motion, rejecting the defendant’s contention that section 425.16 was intended to protect acts associated with the free exercise of religion. Section 425.16 “did not import wholesale the protections of the First Amendment.” The statute mentions only two of the rights enumerated in the First Amendment — freedom of speech and the right…