Morris & Stone, LLP

08/22/2022

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.

08/22/2022

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...

02/06/2017

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…

08/04/2016

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...

07/01/2016

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.

09/29/2015

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.

04/28/2015

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...

04/24/2015

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.

03/18/2015

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.

03/16/2015

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...

03/15/2015

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.

03/10/2015

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…