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Anti-SLAPP Law in California

1st Amendment Freedom of Press & Speech

What is Anti-SLAPP?

Short for strategic lawsuits against public participation, SLAPPs have become an all-too-common tool for intimidating and silencing criticism through expensive, baseless legal proceedings.

Anti-SLAPP laws are meant to provide a remedy to SLAPP suits. Anti-SLAPP laws are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights. In terms of reporting, news organizations and individual journalists can use anti-SLAPP statutes to protect themselves from the financial threat of a groundless defamation case brought by a subject of an enterprise or investigative story.

Under most anti-SLAPP statutes, the person sued makes a motion to strike the case because it involves speech on a matter of public concern. The plaintiff then has the burden of showing a probability that they will prevail in the suit — meaning they must show that they have evidence that could result in a favorable verdict. If the plaintiff cannot meet this burden and the suit is dismissed through anti-SLAPP proceedings, many statutes allow defendants to collect attorney’s fees from the plaintiff.

Resources

Anti-SLAPP Stories

State-by-State Resources

View the Reporters Committee’s Anti-SLAPP Legal Guide.

Recent Anti-SLAPP Updates

2019-06-03: Colorado became 31st state with anti-SLAPP protections

2019-06-02: Texas modified its existing anti-SLAPP law

2019-04-23: The Tennessee legislature amended an anti-SLAPP statute that significantly strengthens the state’s anti-SLAPP protections. Effective July 1, 2019, the new Tennessee Public Participation Act allows defendants to file a motion to dismiss a SLAPP suit before the costly discovery process begins, appeal the denial of an anti-SLAPP motion, and recover attorney’s fees if a court rules in their favor. The new law is largely based on Texas’ anti-SLAPP statute. cited https://www.rcfp.org/resources/anti-slapp-laws/

 

 

 

Cases Involving the California Anti-SLAPP Law

Lawsuits seeking to curtail the exercise of the First Amendment can take a multitude of forms. The cases on the following pages generally involve a special motion to strike a complaint and/or motion for attorney fees and costs pursuant to the California anti-SLAPP law, Code of Civil Procedure section 425.16.

CA Statutes

The California anti-SLAPP law was enacted by the state Legislature almost twenty years ago to protect the petition and free speech rights of all Californians. Amendments have been made since that time to improve the law and provide stronger protection from meritless lawsuits to anyone who is SLAPPed in California.

Code of Civil Procedure section 425.16 Statements before a government body or official proceeding; or in connection with issue under consideration by government body; or in a place open to the public or public forum in connection with issue of public interest; or any other conduct in furtherance of petition/free speech in connection with issue of public interest, are protected. California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. The statute was first enacted in 1992.

Code of Civil Procedure section 425.17 Exempts from the anti-SLAPP law public interest litigation and claims arising from commercial speech. This statute was enacted to correct abuse of the anti-SLAPP statute (CCP § 425.16). It prohibits anti-SLAPP motions in response to (1) public interest litigation when certain conditions are met, and (2) certain actions against a business that arise from commercial statements or conduct of the business.

Code of Civil Procedure section 425.18
SLAPPbacks:  Prohibits the use of certain provisions of the anti-SLAPP law against a SLAPPback brought in the form of a malicious prosecution claim. This statute was enacted primarily to facilitate the recovery by SLAPP victims of their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed. It provides that the prevailing defendant attorney fee and immediate appeal provisions of the anti-SLAPP law do not apply to SLAPPbacks, and that an anti-SLAPP motion may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.

Code of Civil Procedure sections 1987.1 and 1987.2

These statutes set forth a procedure for challenging subpoenas. The 2008 amendment to section 1987.1 allows any person to challenge subpoenas for “personally identifying information” sought in connection with an underlying lawsuit involving that person’s exercise of free speech rights. This amendment also added section 1987.2(b), which provides that such a person who successfully challenges such a subpoena arising from a lawsuit filed in another state based on exercise of free speech rights on the Internet is entitled to recover his or her attorney fees.

Civil Code section 47

Defines privileged publication or broadcast and immunizes participants in official proceedings or litigation against all tort actions except malicious prosecution. This statute figures prominently in many cases. Check back soon for links to some cases arising from this law.

The California Anti-Libel Tourism Act

SB 320 passed both chambers of the CA legislature and was approved by Governor Arnold Schwarzenegger on 10/11/09.  The bill prohibits recognition of foreign defamation judgments if a California court determines that the defamation law applied by a foreign court does not provide at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions.

U.S. Federal Statutes

Communications Decency Act (CDA 230), U.S. Code 47 section 230

Grants interactive online services of all types, including news websites, blogs, forums, and listservs, broad immunity from certain types of legal liability stemming from content created by others

Bottom Line:

  • Courts consistently protect speech that is disturbing, rude, mean, or cruel, as long as it’s not false.

  • Anti-SLAPP laws in California and elsewhere make it easier to dismiss lawsuits that try to punish this kind of harsh commentary.

  • The more the subject involves public interest, the stronger the protection.

 Anti-SLAPP Legal Guide

Anti-SLAPP laws provide defendants a way to quickly dismiss meritless lawsuits — known as SLAPPs or strategic lawsuits against public participation — filed against them for exercising speech, press, assembly, petition, or association rights. These laws aim to discourage the filing of SLAPP suits and prevent them from imposing significant litigation costs and chilling protected speech.

In recent years, several states have adopted or amended their anti-SLAPP laws. As of January 2025, 35 states and the District of Columbia have anti-SLAPP laws, including Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, and Washington.

Anti-SLAPP protections vary significantly from state to state. For example, in some states, like Massachusetts, they only protect defendants from cases brought in retaliation for petitioning the government. In others, such as California, the laws broadly protect speech made in connection with a public issue. For the most part, anti-SLAPP laws are broad enough to cover SLAPP suits aimed at silencing or retaliating against journalists or news outlets for critical reporting. These laws typically provide critical protections to the news media—allowing defendants to secure a quick dismissal before the costly discovery process begins, permitting defendants who win their anti-SLAPP motions to recover attorney’s fees and costs, automatically staying discovery once the defendant has filed an anti-SLAPP motion, and allowing defendants to immediately appeal a trial court’s denial of an anti-SLAPP motion.

This anti-SLAPP legal guide provides a general introduction to each state’s anti-SLAPP law, to the extent one exists. It does not replace the legal advice of an attorney in one’s own state when confronted with a specific legal problem. Journalists who have additional questions or need assistance finding a lawyer with experience litigating these types of claims can contact the Reporters Committee’s hotline.

Special thanks to Laura Prather, a partner at Haynes and Boone, for her assistance with the original version of this guide, and Austin Vining, a law student and Ph.D. candidate at the University of Florida, class of 2021, for his assistance in updating this guide. source

California has a strong anti-SLAPP law.

California has a strong anti-SLAPP law. To challenge a SLAPP suit in California, defendants must show that they are being sued for “any act . . . in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Cal. Civ. Proc. Code § 425.16 (2019). Under the statute, the rights of free speech or petition in connection with a public issue include four categories of activities: statements made before a legislative, executive or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements made in a place open to the public or a public forum in connection with an issue of public interest; and any other conduct in furtherance of the exercise of free speech or petition rights in connection with “a public issue or an issue of public interest.” § 425.16(e).

California courts consider several factors when evaluating whether a statement relates to an issue of public interest, including whether the subject of the statement at issue was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Rivero v. Am. Fed’n of State, Cty., & Mun. Emps., 130 Cal. Rptr. 2d 81, 89–90 (Cal. Ct. App. 2003). Under this standard, statements that report or comment on controversial political, economic, and social issues, from the local to the international level, would certainly qualify. Conversely, a California court has held that statements about a person who was not in the public eye did not relate to an issue of public interest. Dyer v. Childress, 55 Cal. Rptr. 3d 544 (Cal. Ct. App. 2007).

The California anti-SLAPP law allows a defendant to file a motion to strike the complaint, which the court will hear within 30 days unless the docket is overbooked. Cal. Civ. Proc. Code § 425.16(f). Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it, although the judge may permit “specified discovery” if the requesting party provides notice of its request to the other side and can show good cause for it. § 425.16(g).

In ruling on the motion to strike, a California court will first determine whether the defendant established that the lawsuit arose from one of the statutorily defined protected speech or petition activities. Braun v. Chronicle Publ’g Co., 61 Cal. Rptr. 2d 58 (Cal. Ct. App. 1997). If that is the case, the judge will grant the motion unless the plaintiff can show a probability that he will prevail on the claim. Cal. Civ. Proc. Code § 425.16(b)(1). In making this determination, the court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to strike, and any sworn statements containing facts on which the assertions in those documents are based. § 425.16(b)(2).

If the court grants the motion to strike, it must impose attorney’s fees and costs on the plaintiff, except when the basis for the lawsuit stemmed from California’s public records or open meetings laws. Cal. Civ. Proc. Code § 425.16(c)(1)-(2). These laws provide separate provisions for recovering attorney’s fees and costs.

The California anti-SLAPP law also gives a successful defendant who can show that the plaintiff filed the lawsuit to harass or silence the speaker the ability to file a so-called “SLAPPback” lawsuit against his or her opponent. § 425.18. Under this remedy, a SLAPP defendant who won a motion to strike may sue the plaintiff who filed the SLAPP suit to recover damages for abuse of the legal process. Conversely, the defendant must pay the plaintiff’s attorney’s fees and costs if the court finds that the motion to strike was frivolous or brought solely to delay the proceedings. § 425.16(c)(1).

Either party is entitled to immediately appeal the court’s decision on the motion to strike. § 425.16(i).

To learn more, read San Francisco Superior Court Judge Curtis Karnow’s “decision-tree,” depicting  how anti-SLAPP motions are processed in California. find your state here all 50 included!

 

learn more about Anti-SLAPP:

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation 

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

California has an excellent anti-SLAPP law. It was enacted in 2009.

Frankly, the procedural requirements of section 425.16, its interaction with other statutes such as Civil Code 47 (the statute defining what is privileged speech), and the latest definition of “public interest,” which changes regularly, is often far too challenging for a trial court judge to decipher in the limited time he or she has to consider an anti-SLAPP motion.

A bad decision by the judge can be devastating to the defendant or plaintiff. If the special motion to strike is denied when it should have been granted, then the defendant remains hostage to the action.  In an effort to minimize this possibility, the statute provides that the order denying the motion is immediately appealable, but that is costly and time-consuming, which is what the anti-SLAPP statute was trying to prevent in the first place. Conversely, improperly (or properly) granting an anti-SLAPP motion will entitle the defendant to a mandatory award of reasonable attorney fees. This has turned into a significant problem because there are many unethical attorneys who submit inflated fee applications following a successful anti-SLAPP motion. I am frequently retained to testify as an expert to challenge these inflated bills, and thus far I have always been successful in having them reduced, but without such testimony far too many judges are rubber-stamping attorney fee motions, which I have seen exceed $400,000. And there are no “take-backs” when it comes to SLAPP suits. Once an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending or even dismissing his complaint.

Any of the following types of actions (and perhaps more because the law is expanding) can be a SLAPP suit:

  • Defamation
  • Malicious Prosecution or Abuse of Process
  • Nuisance
  • Invasion of Privacy
  • Conspiracy
  • Intentional Infliction of Emotional Distress
  • Interference with Contract or Economic Advantage

As you can see, many actions can result in an anti-SLAPP motion, and such a motion can be a costly and inequitable minefield if the judge fails to fully understand the law. If you are going to enter that minefield, you need an attorney who is a recognized expert in this field. You need Morris & Stone, attorneys whose primary area of practice is defamation (slander and libel) and the accompanying SLAPP laws.

1In state courts, claims may not be amended if an anti-SLAPP motion is pending or has been granted.  In federal courts, leave to amend may be granted.

Statements before a government body or official proceeding; or in connection with issue under consideration by government body; or in a place open to the public or public forum in connection with issue of public interest; or any other conduct in furtherance of petition/free speech in connection with issue of public interest, are protected.

CIV. PROC. CODE § 425.17.

Exempts from the anti-SLAPP law public interest litigation and claims arising from commercial speech.

CIV. PROC. CODE §425.18

SLAPPbacks:  Prohibits the use of certain provisions of the anti-SLAPP law against a SLAPPback brought in the form of a malicious prosecution claim.

The California Anti-Libel Tourism Act

SB 320 passed both chambers of the CA legislature and was approved by Governor Arnold Schwarzenegger on 10/11/09.  The bill prohibits recognition of foreign defamation judgments if a California court determines that the defamation law applied by a foreign court does not provide at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions. source

 

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Court tosses disbarred lawyer’s suit over newspaper article

SOME GOOD 1ST AMENDMEND ANTI SLAPP LAW FOR YOU SISSY’S:

California’s Anti-SLAPP Law and Related State and Federal Statutes

CA Statutes

The California anti-SLAPP law was enacted by the state Legislature almost twenty years ago to protect the petition and free speech rights of all Californians. Amendments have been made since that time to improve the law and provide stronger protection from meritless lawsuits to anyone who is SLAPPed in California.

Code of Civil Procedure section 425.16

California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. The statute was first enacted in 1992.

Code of Civil Procedure section 425.17

This statute was enacted to correct abuse of the anti-SLAPP statute (CCP § 425.16). It prohibits anti-SLAPP motions in response to (1) public interest litigation when certain conditions are met, and (2) certain actions against a business that arise from commercial statements or conduct of the business.

Code of Civil Procedure section 425.18

This statute was enacted primarily to facilitate the recovery by SLAPP victims of their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed. It provides that the prevailing defendant attorney fee and immediate appeal provisions of the anti-SLAPP law do not apply to SLAPPbacks, and that an anti-SLAPP motion may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.

Code of Civil Procedure sections 1987.1 and 1987.2

These statutes set forth a procedure for challenging subpoenas. The 2008 amendment to section 1987.1 allows any person to challenge subpoenas for “personally identifying information” sought in connection with an underlying lawsuit involving that person’s exercise of free speech rights. This amendment also added section 1987.2(b), which provides that such a person who successfully challenges such a subpoena arising from a lawsuit filed in another state based on exercise of free speech rights on the Internet is entitled to recover his or her attorney fees.

Civil Code section 47

Defines privileged publication or broadcast and immunizes participants in official proceedings or litigation against all tort actions except malicious prosecution. This statute figures prominently in many cases. Check back soon for links to some cases arising from this law.

U.S. Federal Statutes

Communications Decency Act (CDA 230), U.S. Code 47 section 230

Grants interactive online services of all types, including news websites, blogs, forums, and listservs, broad immunity from certain types of legal liability stemming from content created by others. source

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Code of Civil Procedure – Section 425.16.

  • (a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
  • (b)
    • (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
    • (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
    • (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
  • (c)
    • (1) Except as provided in paragraph
    • (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5. (2) A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.
  • (d) This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.
  • (e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:
    • (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,
    • (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,
    • (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or
    • (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
  • (f) The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.
  • (g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.
  • (h) For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”
  • (i) An order granting or denying a special motion to strike shall be appealable under Section 904.1.
  • (j)
    • (1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees.
    • (2) The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate electronic media.

History of statute:

1992 — Senate Bill 264 (Lockyer). For a list of organizations and newspapers that supported enactment of the original statute, see Supporters of 1992 Anti-SLAPP Bill.

1993 — The statute was amended to require award of costs and attorney fees to the plaintiff if the court finds that a special motion to strike is frivolous or solely intended to cause unnecessary delay.

1997 — Senate Bill 1296 (Lockyer). The statute was amended in light of appellate court opinions that had narrowly construed application of the statute to disputes involving matters of “public interest”. In amending the statute, the Legislature clarified its intent that any conduct in furtherance of the rights of petition or free speech is protected under the anti-SLAPP law.

1999 — Assembly Bill 1675 (Assembly Judiciary Committee). Under the original statute, a defendant whose special motion to strike a complaint was denied could challenge the denial only through a petition for a writ in the Court of Appeal. Writs are discretionary, disfavored, and rarely successful. If, however, a plaintiff’s complaint were dismissed pursuant to a special motion to strike, the plaintiff was able to appeal the dismissal immediately. Thus, the statute was amended to give the SLAPP target — the person whom the anti-SLAPP law was designed to protect — the same ability as the filer of the SLAPP to challenge an adverse trial court decision. See also Supporters of AB 1675.

2005 — Assembly Bill 1158 (Lieber). The statute was amended to overrule the decision by the California Supreme Court in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, which held that the trial court’s erroneous denial of an anti-SLAPP motion constitutes probable cause for filing and maintaining a SLAPP, as well as the decisions in Decker v. The U.D. Registry, Inc.(2003) 105 Cal.App.4th 1382, and Fair Political Practices Commission v. American Civil Rights Coalition, Inc. (2004) 121 Cal.App.4th 1171, which held that the 30-day period in which to schedule a hearing on an anti-SLAPP motion is jurisdictional.

2009 — The statute was amended to add section 425.16(c)(2), which provides that a defendant who prevails on an anti-SLAPP motion may not be awarded fees on claims of violation of the public records act or open meetings law. cited source

Anti-SLAPP Law in California

Note: This page covers information specific to California. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

You can use California’s anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike a complaint filed against you based on an “act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue.” Cal. Civ. Proc. Code § 425.16. If a court rules in your favor, it will dismiss the plaintiff’s case early in the litigation and award you attorneys’ fees and court costs.  In addition, if a party to a SLAPP suit seeks your personal identifying information, California law allows you to make a motion to quash the discovery order, request, or subpoena.

Activities Covered By The California Anti-SLAPP Statute

Not every unwelcome lawsuit is a SLAPP. In California, the term applies to lawsuits brought primarily to discourage speech about issues of public significance or public participation in government proceedings. To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an “act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue.” Although people often use terms like “free speech” and “petition the government” loosely in popular speech, the anti-SLAPP law gives this phrase a particular legal meaning, which includes four categories of activities:

  1. any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
  2. any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
  3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
  4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Cal. Civ. Proc. Code § 425.16(e)(1-4). As an online publisher, you are most likely to rely on the third category above, which applies to a written statement in a public forum on an issue of public interest.

Under California law, a publicly accessible website is considered a public forum. See Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal. 2006). The website does not have to allow comments or other public participation, so long as it is publicly available over the Internet. See Wilbanks v. Wolk, 121 Cal. App. 4th 883, 897 (Cal. Ct. App. 2001).

Many different kinds of statements may relate to an issue of public interest. California courts look at factors such as whether the subject of the disputed statement was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Certainly, statements educating the public about or taking a position on a controversial issue in local, state, national, or international politics would qualify. Some other examples include:

  • Statements about the character of a public official, see Vogel v. Felice, 127 Cal. App. 4th 1006 (2005);
  • Statements about the financial solvency of a large institution, such as a hospital, see Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal. App. 4th 515, 523 (2006);
  • Statements about a celebrity, or a person voluntarily associating with a celebrity, see Ronson v. Lavandeira, BC 374174 (Cal. Super. Ct. Nov. 1, 2007);
  • Statements about an ideological opponent in the context of debates about the Israeli-Palestinian conflict, see Neuwirth v. Silverstein, SC 094441 (Cal. Super. Ct. Nov. 27, 2007); and
  • Statements about the governance of a homeowners association, see Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).

In contrast, California courts have found other statements to be unrelated to an issue of public interest, including:

  • statements about the character of a person who is not in the public eye, see Dyer v. Childress, 147 Cal. App. 4th 1273, 1281 (2007); and
  • statements about the performance of contractual obligations or other private interests, see Ericsson GE Mobile Communs. v. C.S.I. Telcoms. Eng’rs. 49 Cal. App. 4th 1591 (1996).

Although the anti-SLAPP statute is meant to prevent lawsuits from chilling speech and discouraging public participation, you do not need to show that the SLAPP actually discouraged you from participating or speaking out. Nor do you need to show that the plaintiff bringing the SLAPP intended to restrict your free speech.

Protections for Personal Identifying Information Sought in a SLAPP suit

In addition to providing a motion to strike, California law also allows a person whose identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash — that is, to void or modify the subpoena seeking your personal identifying information so you do not have to provide that information. Cal. Civ. Pro. Code § 1987.1.

How To Use The California Anti-SLAPP Statute

The California anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys’ fees if you win your motion.

One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a motion to strike, the clerk of the court will schedule a hearing on your motion within thirty days after filing. Additionally, once you file your motion, the plaintiff generally cannot engage in “discovery” — that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

In ruling on a motion to strike, a court will first consider whether you have established that the lawsuit arises out of a protected speech or petition activity (discussed above). Assuming you can show this, the court will then require the plaintiff to introduce evidence supporting the essential elements of its legal claim. Because a true SLAPP is not meant to succeed in court, but only to intimidate and harass, a plaintiff bringing such a lawsuit will not be able to make this showing, and the court will dismiss the case. On the other hand, if the plaintiff’s case is strong, then the court will not grant your motion to strike, and the lawsuit will move ahead like any ordinary case.

If the court denies your motion to strike, you are entitled to appeal the decision immediately.

In addition to creating the motion to strike, the statute also allows a person whose personal identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash — that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information.

When you make your motion to quash, the court “may” grant your request if it is “reasonably made.” In reviewing your motion, the court will probably require the plaintiff to make a prima facie showing, meaning he or she must present evidence to support all of the elements of the underlying claim (or, at least, all of the elements within the plaintiff’s control).  See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1171 fn. 12 (Cal. App. 6 Dist. 2008). If the plaintiff cannot make that showing, the court will probably quash the subpoena and keep your identity secret.

If you are served with a SLAPP in California, you can report it to the California Anti-SLAPP Project and request assistance. The California Anti-SLAPP Project also has two excellent guides on dealing with a SLAPP suit in California, Survival Guide for SLAPP Victims and Defending Against A SLAPP. In addition, the First Amendment Project has an excellent step-by-step guide to the legal process of defending against a SLAPP in California.

What Happens If You Win A Motion To Strike

If you prevail on a motion to strike under California’s anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys’ fees and court costs. See Cal. Civ. Proc. Code § 425.16(c).

Additionally, if you win your motion to strike and believe that you can show that the plaintiff filed the lawsuit in order to harass or silence you rather than to resolve a legitimate legal claim, then consider filing a “SLAPPback” suit against your opponent. A “SLAPPback” is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process. See Cal. Civ. Proc. Code § 425.18 (setting out certain procedural rules for “SLAPPback” suits). Section 425.18 contemplates bringing a SLAPPback in a subsequent lawsuit after the original SLAPP has been dismissed, but you might be able to bring a SLAPPback as a counterclaim in the original lawsuit. You should not underestimate the considerable expense required to bring a SLAPPback, like any lawsuit, to a successful conclusion.

If your successful motion to quash arises out of a lawsuit filed in a California court, the judge has discretion to award expenses incurred in making the motion. The court will award fees if the plaintiff opposed your motion “in bad faith or without substantial justification,” or if at least one part of the subpoena was “oppressive.” Cal. Civ. Pro. Code § 1987.2(a). But note that if you lose your motion to quash, and the court decides that your motion was made in bad faith, you may have to pay the plaintiff’s costs of opposing the motion.

If you successfully quash a California identity-seeking subpoena that relates to a lawsuit filed in another state, the court “shall” award all reasonably expenses incurred in making your motion – including attorneys’ fees – if the following conditions are met:

  • the subpoena was served on an Internet service provider or other Section 230 computer service provider;
  • the underlying lawsuit arose from your exercise of free speech on the Internet; and
  • the plaintiff failed to make his prima facie showing.

Cal. Civ. Pro. Code § 1987.2(b). Jurisdiction: California Subject Area: SLAPP cited https://www.dmlp.org/legal-guide/anti-slapp-law-california

California Has a Very Strong Anti-SLAPP Law. California Anti-SLAPP Law

California Anti-SLAPP Law

California has a strong anti-SLAPP law. To challenge a SLAPP suit in California, defendants must show that they are being sued for “any act . . . in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Cal. Civ. Proc. Code § 425.16 (2019). Under the statute, the rights of free speech or petition in connection with a public issue include four categories of activities: statements made before a legislative, executive or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements made in a place open to the public or a public forum in connection with an issue of public interest; and any other conduct in furtherance of the exercise of free speech or petition rights in connection with “a public issue or an issue of public interest.” § 425.16(e).

California courts consider several factors when evaluating whether a statement relates to an issue of public interest, including whether the subject of the statement at issue was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Rivero v. Am. Fed’n of State, Cty., & Mun. Emps., 130 Cal. Rptr. 2d 81, 89–90 (Cal. Ct. App. 2003). Under this standard, statements that report or comment on controversial political, economic, and social issues, from the local to the international level, would certainly qualify. Conversely, a California court has held that statements about a person who was not in the public eye did not relate to an issue of public interest. Dyer v. Childress, 55 Cal. Rptr. 3d 544 (Cal. Ct. App. 2007).

The California anti-SLAPP law allows a defendant to file a motion to strike the complaint, which the court will hear within 30 days unless the docket is overbooked. Cal. Civ. Proc. Code § 425.16(f). Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it, although the judge may permit “specified discovery” if the requesting party provides notice of its request to the other side and can show good cause for it. § 425.16(g).

In ruling on the motion to strike, a California court will first determine whether the defendant established that the lawsuit arose from one of the statutorily defined protected speech or petition activities. Braun v. Chronicle Publ’g Co., 61 Cal. Rptr. 2d 58 (Cal. Ct. App. 1997). If that is the case, the judge will grant the motion unless the plaintiff can show a probability that he will prevail on the claim. Cal. Civ. Proc. Code § 425.16(b)(1). In making this determination, the court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to strike, and any sworn statements containing facts on which the assertions in those documents are based. § 425.16(b)(2).

If the court grants the motion to strike, it must impose attorney’s fees and costs on the plaintiff, except when the basis for the lawsuit stemmed from California’s public records or open meetings laws. Cal. Civ. Proc. Code § 425.16(c)(1)-(2). These laws provide separate provisions for recovering attorney’s fees and costs.

The California anti-SLAPP law also gives a successful defendant who can show that the plaintiff filed the lawsuit to harass or silence the speaker the ability to file a so-called “SLAPPback” lawsuit against his or her opponent. § 425.18. Under this remedy, a SLAPP defendant who won a motion to strike may sue the plaintiff who filed the SLAPP suit to recover damages for abuse of the legal process. Conversely, the defendant must pay the plaintiff’s attorney’s fees and costs if the court finds that the motion to strike was frivolous or brought solely to delay the proceedings. § 425.16(c)(1).

Either party is entitled to immediately appeal the court’s decision on the motion to strike. § 425.16(i).

To learn more, read San Francisco Superior Court Judge Curtis Karnow’s “decision-tree,” depicting  how anti-SLAPP motions are processed in California. source

 

California  Anti-SLAPP Caselaw

Recent Developments in California Anti-SLAPP Case Law, Summer 2021

 

Click for PDF

This alert surveys recent case law and legislative developments involving California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16(e).  The anti-SLAPP statute offers defendants in actions brought pursuant to California law a powerful procedural tool to seek early dismissal of lawsuits that target defendants’ actions taken in furtherance of their “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”[1]

Courts apply a two-pronged analytical framework to evaluate an anti-SLAPP special motion to strike.  The first is the “protected activity” prong, under which the defendant has the burden of proving that the activity that gave rise to the plaintiff’s cause of action arises from one of the four enumerated categories under § 425.16(e):

  1. any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,
  2. any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,
  3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or
  4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

If the first prong is met, the burden shifts to the plaintiff to establish on the second prong that “there is a probability that the plaintiff will prevail on the claim.”[2]  Giving additional teeth to the law, a defendant who prevails on an anti-SLAPP special motion to strike is entitled to recover its attorneys’ fees and costs incurred in bringing the motion.[3]

Below, we discuss recent substantive decisions by state and federal courts that apply the anti-SLAPP statute’s framework to lawsuits in the media, finance, employment, and real estate contexts and which involve claims regarding revenge porn, trade libel, unfair competition, business torts, and employment discrimination, and also implicate the law’s commercial-speech exemption.

1.  Hill v. Heslep et al., Case No. 20STCV48797 (Apr. 7, 2021, L.A. Cnty. Super. Ct.)

Facts:  Plaintiff Katherine Hill, a former U.S. Representative from California’s 25th congressional district, sued Mail Media, Inc. (publisher of the Daily Mail) in a California state court for publishing to its MailOnline website nonconsensually distributed nude photographs of Hill.[4]  The photographs had been disseminated by Kenneth Heslep, Hill’s ex-husband (also named as a defendant).  Hill also sued talk-radio host Joe Messina for statements referencing the images that he made on-air and in an article posted to his blog, as well as Salem Media Group, Inc. (owner of the conservative political blog RedState) and RedState editor Jennifer Van Laar for their alleged roles in the distribution of the nude photos.  Hill alleged that the actions of each defendant violated California Civil Code § 1708.85, the state’s revenge porn law, which prohibits the “distribution” of certain types of intimate photographs (among other types of media) without the consent of the depicted individual.  Distribution is not defined by the statute, but Judge Yolanda Orozco of the Los Angeles County Superior Court construed it broadly enough to include activities such as dissemination of prohibited photographs by an individual to others as well as publication by media outlets.  On April 7, 2021, Judge Orozco heard and granted Mail Media’s anti-SLAPP motion to strike; Hill has filed a notice of appeal.

Prong 1:  In analyzing prong one, Judge Orozco noted that “reporting the news is speech subject to the protections of the First Amendment and subject to an anti-SLAPP motion if the report concerns a public issue or an issue of public interest,”[5] and “‘[t]he character and qualifications of a candidate for public office constitutes a “public issue or public interest”’ for purposes of section 425.16.”[6]  While the court agreed with Hill that “the gravamen of her Complaint against [Mail Media] is [its] distribution of Plaintiff’s intimate images,”[7] it noted that this distribution occurred via an online news publication, and the “intimate images published by Defendant spoke to Plaintiff’s character and qualifications for her position, as they allegedly depicted Plaintiff with a campaign staffer whom she was alleged to have had a sexual affair with and appeared to show Plaintiff using a then-illegal drug…”[8]  Thus, “the gravamen of Plaintiff’s Complaint against Defendant constitutes protected activity under Section 425.16(e)(3) and (4).”[9]

Prong 2:  On the second (merits) prong, Judge Orozco noted that Hill’s claims presented a novel intersection of California’s anti-SLAPP and revenge porn laws.  Section 1708.85(a) states, in relevant part,

A private cause of action lies against a person who intentionally distributes… a photograph… of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person… and (3) the other person suffers general or special damages…

However, Judge Orozco held that the newspaper’s activities fell squarely within the “matter of public concern” exemption contained in § 1708.85(c)(4), as the published images “speak to Plaintiff’s character and qualifications for her position as a Congresswoman.”[10]  Thus, “Plaintiff failed to carry her burden establishing that there is a probability of success on the merits of her claim.”[11]

Other Case Notes & Attorneys’ Fees Awards:  In a subsequent hearing on June 2, 2021, Judge Orozco granted Mail Media’s motion for costs and prevailing-party attorneys’ fees, totaling $104,747.75.[12]  The dismissal of Mail Media’s claims followed the earlier dismissals and awards of attorneys’ fees for all of the other defendants except for Heslep, the lone defendant remaining in the case.[13]  In total, Hill has been ordered to pay over $200,000 in attorneys’ fees to the prevailing defendants.[14]

Of note, Hill was ordered to pay $30,000 in fees and costs to Messina, the radio personality who merely commented about the pictures on his program and blog.[15]  Shortly after Messina filed his anti-SLAPP motion to strike, but before the scheduled hearing, Hill voluntarily withdrew her claims against Messina.  Despite this, Judge Orozco entertained Messina’s motion for attorneys’ fees as the prevailing defendant under Section 425.16.  Judge Orozco noted that “‘because a defendant who has been sued in violation of his… free speech rights is entitled to an award of attorney fees, the trial court must, upon defendant’s motion for a fee award, rule on the merits of the SLAPP motion even if the matter has been dismissed prior to the hearing on that motion.’”[16]  Judge Orozco concluded that Messina was the prevailing party on the merits of the motion to strike and granted the motion for attorneys’ fees.

While the trial court’s orders are non-precedential, the Court of Appeal will have a chance to review them, as on June 18, 2021, Hill filed notices of appeal for the orders granting the anti-SLAPP motions of Mail Media, Van Laar, and Salem Media.

2.   Muddy Waters, LLC v. Superior Court, 62 Cal. App. 5th 905 (2021)

Facts:  In 2017, Perfectus Aluminum, Inc., a distributor of aluminum products, sued Muddy Waters, LLC, a financial analysis firm that engages in activist short selling, following the latter’s publication of a pair of reports that allegedly implicated Perfectus in a scheme to inflate aluminum sales for Zhongwang Holdings, Ltd., a publicly traded Chinese company.[17]  The two reports (“Dupré Reports”) were published by Muddy Waters on a publicly accessible website under the business pseudonym “Dupré Analytics.”  In its complaint, Perfectus alleged that U.S. Customs detained a shipment of the company’s aluminum awaiting export in the port of Long Beach and lost potential business as a result of the allegations in the Dupré Reports, bringing claims for 1) violation of California’s Unfair Competition Law; 2) trade libel; and 3) intentional interference with prospective economic advantage.

The Superior Court of San Bernardino County denied Muddy Waters’s anti-SLAPP motion on the grounds that Muddy Waters failed to prove that the causes of action arose from protected activity and, alternatively, that the commercial speech exemption of Section 425.17(c) applied to the publication of the Dupré Reports, thereby barring an anti-SLAPP challenge.  Because the trial court found Section 425.17 applied, Muddy Waters lacked the immediate right of appeal that is otherwise available upon denial of an anti-SLAPP motion and thus sought a writ of mandate from the Court of Appeal.

Prong 1:  The Court of Appeal began its analysis of the first prong by highlighting the third category of protected activities in § 425.16(e):  “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”  The Court divided the first prong’s analysis into two stages.  In the first stage, the Court determined whether a publicly accessible website constitutes a public forum, and found that it does, as “Internet postings on websites that ‘are open and free to anyone who wants to read the messages’ and ‘accessible free of charge to any member of the public’ satisfies the public forum requirement of section 425.16.”[18]

In the second stage, the Court asked whether the content of the Dupré Reports represented an issue of public interest, and found that it did because the reports alleged that Zhongwang was artificially inflating reported sales and allegations of “mismanagement or investor scams” made against a publicly traded company constitute an “issue of public interest” for purposes of the anti-SLAPP law.[19]

Commercial Speech Exemption:  Before moving to the merits prong of the anti-SLAPP analysis, the Court of Appeal addressed the trial court’s determination that the § 425.17(c) commercial speech exemption applied, thereby barring Muddy Waters’s ability to bring an anti-SLAPP motion.  The Court noted that the plaintiff has the burden of proof to establish the applicability of the commercial speech exemption, and that the exemption is “narrow,” excluding only a “‘subset of commercial speech—specifically, comparative advertising.’”[20]  Thus, it noted, the commercial speech exemption is triggered only with respect to “speech or conduct by a person engaged in the business of selling or leasing goods or services when… that challenged [speech or] conduct pertains to the business of the speaker or his or her competitors.”[21]  In other words, the Court noted, the commercial speech exemption does not apply in circumstances like the current case, where a defendant has made representations of fact about a noncompetitor’s goods in order to promote sales of the defendant’s goods or services.  Accordingly, the Court of Appeal reversed the Superior Court’s determination that the commercial speech exemption applied and barred Muddy Waters from bringing an anti-SLAPP motion.

Prong 2:  The Court of Appeal next determined whether Perfectus had satisfied the merits prong for each of its three causes of action.

For the California UCL claim, the Court wrote that “nothing in the record suggests that plaintiff has lost money or property such that it would have standing to pursue a UCL action against Muddy Waters.”[22]  The Court found that Perfectus had not produced any evidence that would establish a nexus between the alleged unfair practice (publication of the Dupré Reports) and the loss of property (the aluminum that was detained by U.S. Customs), and therefore lacked standing to bring a UCL claim.

For the trade libel claim, the Court noted that Perfectus failed to produce evidence identifying a specific third party that was deterred from conducting business with Perfectus as a result of the Dupré Reports, a required element for the claim.  It wrote, “‘it is not enough to show a general decline in [Perfectus’s] business resulting from the falsehood, even where no other cause for it is apparent… it is only the loss of specific sales [as a result of the defendant’s actions] that can be recovered.’”[23]  Thus, Perfectus’s failure to specify a particular business partner that was convinced by the Dupré Reports to refrain from dealing with Perfectus doomed the trade libel cause of action.

Finally, on the intentional-interference-with-prospective-economic-advantage claim, the Court noted that Perfectus would need to prove an “actual economic relationship with a third party”[24] and that the relationship “‘contains the probability of future economic benefit to [Perfectus],’”[25] but that Perfectus failed to submit evidence that identified such an actual economic relationship with a specific third party.[26]

Result:  The Court of Appeal issued a writ of mandate directing the Superior Court to vacate its order denying Muddy Waters’s anti-SLAPP motion and to enter in its place a new order granting the motion.  Perfectus has sought review in the California Supreme Court.

3.   Verceles v. Los Angeles Unified School District, 63 Cal. App. 5th 776 (2021)

Facts:  Plaintiff Junnie Verceles, a Filipino man who was 46 years old at the time he filed his complaint in March 2019, was a teacher in the Los Angeles Unified School District from 1998 until his termination on March 13, 2018.[27]  On December 1, 2015, following unspecified allegations of misconduct, Verceles was reassigned and placed on paid suspension, which Verceles described as “teacher jail.”  In November 2016, Verceles filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH) while an investigation by the District into the alleged misconduct was still underway.  The DFEH case was closed on March 7, 2017, and roughly one year later, the District terminated Verceles’s employment.  Verceles alleged three violations of California’s Fair Employment and Housing Act (FEHA):  1) age discrimination, 2) race and national origin discrimination, and 3) retaliation; in response, the District filed an anti-SLAPP motion to strike each of the three causes of action.  After the Los Angeles County Superior Court granted the District’s motion, Verceles appealed; the Court of Appeal reversed.

Prong 1:  The District argued that each cause of action arose out of its investigation into teacher misconduct, and was thus protected activity under § 425.16(e).  Verceles argued that the gravamen of his complaint was not the investigation into teacher misconduct, but the discrimination and retaliation that resulted in his firing by the District.  The trial court granted the motion, characterizing the investigation and resulting termination (and alleged discrimination and retaliation) as a single “proceeding” that gave rise to the causes of action.

The Court of Appeal, however, rejected the District’s attempt to “define the alleged adverse action broadly to encompass the entirety of its investigation into Verceles’s purported misconduct.”[28]  Instead, the Court found persuasive Verceles’s argument that the investigation as a whole into his alleged misconduct was not tainted by discriminatory or retaliatory intent.  After all, Verceles argued, the investigation began before Verceles filed his DFEH complaint, and so up to that point, there was nothing for the District to retaliate against.  Furthermore, Verceles argued, the District’s other investigations into alleged misconduct did not demonstrate a pattern of discrimination against protected groups that resulted in the requisite disparate impact; however, according to Verceles, the District’s termination practices and use of “teacher’s jail” to discipline a relative few number of teachers like him did demonstrate such a pattern of disparate, adverse impacts on protected groups.  Thus, the Court concluded that the activities that underpinned Verceles’s complaint were his reassignment to “teacher’s jail” and termination.

The District argued that the “investigation was an ‘official proceeding authorized by law’ for purposes of [425.16(e)(2)],” and that all actions taken in the course of the investigation—including the decision to reassign and terminate Verceles—fell within the ambit of this protected activity.[29]  The Court acknowledged that the District was generally correct to state that an investigation into alleged misconduct by a public employee is categorized as “an official proceeding”; however, the Court rejected the idea that every action taken during the course of such an investigation constituted a protected activity for anti-SLAPP purposes.[30]  “Such an interpretation,” wrote the Court, “ignores the plain language of the statute, which requires a claim be based on a written or oral statement made in connection with the proceeding.”[31]  Instead, Section 425.16(e) protects the District’s speech and petitioning activity “that led up to or contributed” to the decision to reassign and terminate Verceles, but it did not protect the actual acts of reassignment and termination.[32]  Thus, “In the absence of any oral or written statements from which Verceles’ claims arise, the District’s decisions to place Verceles on leave and terminate his employment are not protected activity within the meaning of [Section 425.16(e)(2)].”[33]

Result:  Thus, the Court held that the District failed to meet its burden under the first prong of the anti-SLAPP analysis and reversed the trial court’s judgment granting the District’s motion to strike and motion for attorney’s fees as the prevailing party.  The Court also granted Verceles’s the costs related to his appeal of the order granting the motion to strike.  The District filed a petition for review, which is currently pending before the California Supreme Court.

4.   Appel v. Wolf, 839 F. App’x 78 (9th Cir. 2020)

Facts:  Defendant Robert Wolf is an attorney who represents Concierge Auctions, LLC, a company that specializes in auctioning off luxury real estate.  A dispute arose between Concierge and the plaintiff Howard Appel over the sale of property in Fiji.  During the course of this dispute, Wolf sent an email containing an allegedly defamatory statement that Wolf knew Appel and that Appel “had legal issues (securities fraud).”[34]  After Appel sued Wolf for defamation, Wolf filed an anti-SLAPP motion to strike, arguing that the statements in the email were made pursuant to settlement discussions in the course of litigation and so were protected under Section 425.16.  The district court denied the motion to strike and Wolf appealed.  Though it found the district court erred in its prong-one analysis, the Ninth Circuit found such error harmless and therefore affirmed.

Prong 1:  In its first prong analysis, the Ninth Circuit held that the district court erred in holding that Wolf’s email communication was not protected activity, as acts that occur in the course of litigation “are generally considered protected conduct falling within section 425.16(e)(2)’s broad ambit.”[35]  The panel noted that “[t]his protection extends to ‘an attorney’s communication with opposing counsel on behalf of a client regarding pending litigation’ and includes ‘an offer of settlement to counsel.’”[36]  The panel then found that “[t]he district court misapplied California law when it reasoned that Wolf’s email—which was sent to Appel’s counsel, allegedly ‘begging for a phone[-]call discussion about possible settlement of Appel’s case against Concierge’—was insufficiently concrete to qualify as protected conduct,” because “Section 425.16(e)(2) has no such ‘concreteness’ requirement.”[37]  Thus, the allegedly libelous email qualified for Section 425.16(e)(2)’s protection, and Wolf satisfied his burden of establishing the first prong.

Prong 2:  However, the Ninth Circuit held that the district court’s error on prong one was ultimately harmless, because Appel was “reasonably likely to succeed on the merits of his claim, given that Wolf’s email was facially defamatory and not immunized by California’s litigation privilege.”[38]  First, the complaint’s allegations and the email itself supported the district court’s finding that Wolf’s statement “would have negative, injurious ramifications on [Appel’s] integrity.”[39]  Next, though Wolf’s statement was made in the context of settlement negotiations, the panel held it was not privileged, as “the privilege ‘does not prop the barn door wide open’ for every defamatory ‘charge or innuendo,’ merely because the libelous statement is included in a presumptively privileged communication,”[40] and “Appel established that Wolf’s false insinuation that he had been involved in securities fraud is not reasonably relevant to Appel’s underlying dispute with Concierge.”[41]

Result:  The Ninth Circuit thus affirmed the district court’s denial of Wolf’s anti-SLAPP motion.

5.   SB 329 Proposes Limitation on Use of Anti-SLAPP Motions in “No Contest” Wills and Trust Actions

Finally, a new bill, California Senate Bill 329, introduced by Senator Brian Jones (R, 38th Dist.), proposes to prohibit the use of anti-SLAPP motions in actions relating to wills and trusts.  The bill would amend Section 425.17 to add the following provision: “(e) Section 425.16 does not apply to an action to enforce a no contest clause contained in a will, trust, or other instrument.  As used in this subdivision, ‘no contest clause’ has the meaning provided in Section 21310 of the Probate Code.”  A “no-contest” clause is a provision that disinherits a beneficiary who challenges a will or trust.

The Senate Floor Analysis of the bill notes that “[a]lthough commonly associated with the protection of constitutional rights, the anti-SLAPP statute applies to a broad range of contexts, including proceedings to enforce a no-contest clause in a trust or will that penalizes beneficiaries who challenge the terms of the will without probable cause.”  The Senate Judiciary notes that two recent Court of Appeal cases “establish that the anti-SLAPP statute applies to no-contest enforcement petitions.”[42]  SB 329 is sponsored by the California Conference of Bar Associations and the Executive Committee of the Trusts and Estates Section of the California Lawyers Association, which “argue that the statute was not intended to apply in this context and that it offers minimal upside while opening the door to needless litigation and cost.”

 

  •     [1]             Cal. Civ. Code § 425.16(b)(1).
  •     [2]             Id.
  •     [3]             Id. § 425.16(c)(1).
  •     [4]             Hill v. Heslep et al., Case No. 20STCV48797, at *1 (Apr. 7, 2021, L.A. Cnty. Super. Ct.).
  •     [5]             Id. at *8 (citing Liberman v. KCOP Television, Inc., 110 Cal. App. 4th 156, 164 (2003)).
  •     [6]             Id. at *6-7 (quoting Collier v. Harris, 240 Cal. App. 4th 41, 52 (2015)).
  •     [7]             Id. at *7-8.
  •     [8]             Id. at *8.
  •     [9]             Id. at *7.
  •     [10]            Id. at *13.
  •     [11]            Id.
  •     [12]            Hill v. Heslep et al., Case No. 20STCV48797 at *5 (Super. Ct. of L.A. Cnty., June 2, 2021).
  •     [13]            Nathan Solis, Katie Hill Owes Daily Mail $105K for Attorney Fees in Nude Photo Fight, Courthouse News Service (June 2, 2021),
    https://www.courthousenews.com/katie-hill-owes-daily-mail-105k-for-attorney-fees-in-nude-photo-fight/.
  •     [14]            Id.
  •     [15]            Hill v. Heslep, et. al., Case No. 20STCV48797, at *12 (Super. Ct. of L.A. Cnty., May 4, 2021).
  •     [16]            Id. at *3 (citing Pfeiffer Venice Properties v. Bernard, 101 Cal. App. 4th 211, 218 (2002)).
  •     [17]            Muddy Waters, LLC v. Superior Ct., 62 Cal. App. 5th 905, 912-93 (2021), reh’g denied (Apr. 23, 2021), petition for review filed (May 18, 2021).
  •     [18]            Muddy Waters, 62 Cal. App. 5th at 917 (citing ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1007 (2001)).
  •     [19]            Id. at 918.
  •     [20]            Id. at 919-20 (citing Dean v. Friends of Pine Meadow, 21 Cal. App. 5th 91, 105 (2018)).
  •     [21]            Id. at 919.
  •     [22]            Id. at 923.
  •     [23]            Id. at 925 (citing Erlich v. Etner, 224 Cal. App. 2d 69, 73 (1964)).
  •     [24]            Id. at 926.
  •     [25]            Id. (citing Korea Supply Co. v. Lockheed Martin Corp., 29 Cal 4th 1134, 1164 (2003)).
  •     [26]            Muddy Waters, 62 Cal. App. 5th at 926-27.
  •     [27]            Verceles v. Los Angeles Unified Sch. Dist., 63 Cal. App. 5th 776, 779 (2021), petition for review filed (June 3, 2021).
  •     [28]            Id. at 785.
  •     [29]            Id. at 787.
  •     [30]            Id.
  •     [31]            Id.
  •     [32]            Id.
  •     [33]            Id. at 788.
  •     [34]            Appel v. Wolf, 839 F. App’x 78, 80 (9th Cir. 2020).
  •     [35]            Id.
  •     [36]            Id. (citing GeneThera, Inc. v. Troy & Gould Pro. Corp., 171 Cal. App. 4th 901, 905 (2009)).
  •     [37]            Id. at 80.
  •     [38]            Id.
  •     [39]            Id.
  •     [40]            Id. at 81 (quoting Nguyen v. Proton Technology Corp., 69 Cal. App. 4th 140, 150 (1999)).
  •     [41]            Id.
  •     [42]            Citing Key v. Tyler, 34 Cal. App. 5th 505 (2019); Urick v. Urick, 15 Cal. App. 5th 1182 (2017).

source

California Anti-SLAPP Motions Are Safe in Federal Courts . . . For Now

For over two decades, the Ninth Circuit has treated California’s anti-SLAPP statute as substantive law and refrained from applying the Erie doctrine to question whether anti-SLAPP motions generally should be precluded in federal courts absent a “direct conflict.”1 2 Anti-SLAPP motions are often favored by defendants in California, as they can provide speedy relief for individuals or entities sued for conduct involving their rights of free speech or petition to potentially obtain an early exit from litigation before significant costs accrue, by creating a procedural mechanism whereby defendants can require plaintiffs alleging such claims to substantiate their merits at the case’s earliest stages.3

In recent years, however, federal courts across at least five circuits have called this deferential approach into question when evaluating their own respective states’ versions of similar statutes. Rather than holistically defer to state anti-SLAPP laws as substantive absent a “direct conflict,” courts in the Second, Fifth, Tenth, and Eleventh Circuits, along with the D.C. Circuit, have consistently invoked the Erie doctrine to evaluate whether each anti-SLAPP provision is substantive or procedural.4

In August 2022, the Ninth Circuit spoke up to reaffirm its position regarding the propriety of anti-SLAPP motions in federal courts within its jurisdiction. Recognizing the deepening divide ripping across the country, the Court in CoreCivic v. Candide Group again protected California’s anti-SLAPP statute from the Erie inquiry, holding that no basis existed to undermine its previous position that no conflict justifies precluding the motions in Ninth Circuit federal courts.5 6

While acknowledging the existence of out-of-circuit decisions holding otherwise with respect to other states’ anti-SLAPP statutes, these sister circuit decisions left the Ninth Circuit unfazed with its approach to California’s statute.7 Furthermore, the Court quelled minority opinions within the Ninth Circuit that suggested California’s anti-SLAPP statutes are trumped by the Federal Rules of Procedure Rule 12(b)(6) and Rule 56, governing motions to dismiss and motions for summary judgment, respectively.8 Rather, the Court reconciled any potential conflicts by explaining that anti-SLAPP statute provisions “must be analyzed under the same standard” that Rules 12(b)(6) and 56 impose, again treating the anti-SLAPP provisions as purely substantive.9

CoreCivic may cause a ripple effect across other circuits and deepen the stark divide. The issue is ripe for the Supreme Court to break its longstanding silence on whether and to what extent state anti-SLAPP laws are preempted.10 While the silence has sparked creative potential alternatives, such as the Uniform Public Expression Protection Act (UPEPA), a model anti-SLAPP statute approved by the Uniform Law Commission in 2020, states have been slow to adopt it, leaving litigants in other jurisdictions open to the possibility of forum shopping in circuits that view state anti-SLAPP statutes as conflicting with federal law.11 Litigants in the Ninth Circuit, however, need not worry about such things—at least not yet.

  • 1 See, e.g., U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999) (hereinafter “Newsham”) (internal citations omitted) (In the absence of a “direct collision” between a state anti-SLAPP law and the Federal Rules of Civil Procedure, state statute applies in federal diversity actions.).
  • 2 It is well-established that when state law conflicts with federal law, courts use the Erie test to determine which law applies. The first step to the Erie test is whether “a Federal Rule of Civil Procedure ‘answer[s] the same question’ as the [special motion to strike].” Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1335 (D.C. Cir. 2015) (quoting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398-99 (2010)). If the result is in the affirmative, then the Federal Rule governs. Id. Although an exception arises if the Federal Rule violates the Rules Enabling Act, the U.S. Supreme court has “rejected every challenge to the Federal Rules that it has considered under the Rules Enabling Act.” Id. at 1336.
  • 3 Cal. Code of Civ. Proc. § 426.16.
  • 4 See La Liberte v. Reid, 966 F.3d 79, 86–88 (2d Cir. 2020); Klocke v. Watson, 936 F.3d 240, 244–49 (5th Cir. 2019); Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659, 668–73 (10th Cir. 2018); Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1349–57 (11th Cir. 2018); Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1333–37 (D.C. Cir. 2015).
  • 5 CoreCivic v. Candide Grp., No. 20-17285, 2022 U.S. App. LEXIS 24417, at *10-12 (9th Cir. Aug. 30, 2022), reh’g denied en banc, 2022 U.S. App. LEXIS 29257 (9th Cir. Oct. 20, 2022).
  • 6 Greenberg Traurig, LLP has represented and continues to represent CoreCivic in a wide array of matters, but did not participate in the Candide litigation.
  • 7 CoreCivic, 2022 U.S. App. LEXIS 24417, at *15.
  • 8 Id. at *16.
  • 9 Id.
  • 10 The Supreme Court has consistently refused to take cases involving state anti-SLAPP laws. See, e.g., Yagman v. Edmondson, 723 Fed. App’x 463 (9th Cir. 2018), cert. denied, 139 S. Ct. 823 (2019); Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 897 F.3d 1224 (9th Cir. 2018), cert denied, 139 S. Ct. 1446 (2019). As recently as February 2021, the Supreme Court again refused by denying review in Clifford v. Trump, 141 S.Ct. 1374 (2021), which presented the conflict between the Ninth Circuit and the Fifth Circuit’s holdings on the applicability of the Texas anti-SLAPP law in federal court.
  • 11 Only three states have enacted UPEPA (Hawaii, Kentucky, and Washington), and five states have introduced it (Indiana, Iowa, Missouri, New Jersey, and North Carolina) as of November 2022. See Public Expression Protection Act, Uniform Law Commission (Nov. 1, 2022).

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SLAPP Cases Decided by the California Supreme Court

 

SLAPP Cases Decided by the California Supreme Court

The following are opinions issued by the California Supreme Court concerning the anti-SLAPP statute (CCP § 425.16).  Clicking on the name of the case will lead to the text of the opinion.  For opinions issued in and after 2014, clicking on the case name will lead to the text of the opinion on Google Scholar.

Baral v. Schnitt
California Supreme Court, 2016
1 Cal.5th 376, 205 Cal.Rptr.3d 475, 376 P.3d 604

Plaintiff’s second amended complaint contained causes of action for breach of fiduciary duty, constructive fraud, negligent misrepresentation, and a claim for declaratory relief.  Defendant’s anti-SLAPP motion sought to strike all references to an audit by an accounting firm.  The trial court denied the motion without deciding whether the complaint contained allegations of protected activity, ruling that the anti-SLAPP motion applied only to entire causes of action as pleaded in the complaint, or to the complaint as a whole, not to isolated allegations within causes of action.  The Supreme Court reversed, holding that, as used in § 425.16(b)(1), “cause of action” referred to allegations of protected activity asserted as grounds for relief, and thus the anti-SLAPP statute could reach distinct claims within pleaded counts, requiring a probability of prevailing on any claim for relief based on allegations of protected activity, even if mixed with assertions of unprotected activity.  The Court disapproved of the opinion in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.

Barrett v. Rosenthal
California Supreme Court, 2006
40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146 P.3d 510

Three plaintiffs, vocal critics of alternative medicine, sued our client, breast-implant awareness activist Ilena Rosenthal, for defamation and related claims, based on critical comments she made about two of them on the Internet. The trial court granted her anti-SLAPP motion. The Court of Appeal affirmed this ruling as to two plaintiffs, but reversed as to the third. The California Supreme Court held that the third plaintiff’s claims should be dismissed as well, ruling that Rosenthal was protected from civil liability for republication of the words of another on the Internet by section 230 of the federal Communications Decency Act. On remand, the trial court awarded more than $434,000 for attorneys fees.

Barry v. The State Bar of California
California Supreme Court, Jan. 5, 2017
2 Cal.5th 318, 212 Cal.Rptr.3d 124, 386 P.3d 788

Plaintiff attorney filed an action seeking to vacate a stipulation she had entered into to having committed professional misconduct and a 60-day suspension from the practice of law.  The trial court granted the State Bar’s anti-SLAPP motion, ruling that the claims arose from protected activity and that plaintiff could not establish a probability of prevailing, because (inter alia) a superior court lacked subject mater jurisdiction over attorney discipline matters.  The trial court also awarded $2,575 in attorneys’ fees.  Plaintiff appealed the fee award.  The Court of Appeal reversed the fee award, finding  that the trial court’s lack of subject matter jurisdiction precluded it from ruling on the State Bar’s anti-SLAPP motion and awarding fees.  The Supreme Court reversed the Court of Appeal and upheld the fee award, holding that the superior court properly found that plaintiff had failed to show a probability of prevailing on her claim because the superior court lacked subject matter jurisdiction, and that said ruling was not on the merits of plaintiff’s claim.

Bonni v. St. Joseph Health System
California Supreme Court, 2021
11 Cal.5th 995, 281 Cal.Rptr. 3d 678, 491 P.3d 1058

Briggs v. ECHO
California Supreme Court, 1999
19 Cal.4th 1106, 81 Cal.Rptr.2d 471, 969 P.2d 564

The Briggses, landlords, sued our client, a nonprofit organization that provides counseling, mediation, and referral services related to landlord-tenant disputes, alleging that the organization harassed and defamed them. The trial court granted defendant’s anti-SLAPP motion. The appellate court reversed in a 2-1 decision, finding no “issue of public significance” in the defendant’s conduct. In its first case involving the California anti-SLAPP law, the California Supreme Court reversed the Court of Appeal, holding that the anti-SLAPP statute is to be construed broadly and covers any lawsuit arising from the exercise of the right to petition the government, regardless of the issue involved. In total, the trial court awarded more than $425,000 for attorneys fees and costs.

City of Cotati v. Cashman
California Supreme Court, 2002
29 Cal.4th 69, 124 Cal.Rptr.2d 519, 52 P.3d 695
Note:  This case was reviewed together with Navellier v. Sletten and Equilon Enterprises v. Consumer Cause, Inc.

A city’s action for declaratory relief respecting the constitutionality of its ordinance, filed in state court in response to a similar action filed by citizens in federal court, does not constitute a SLAPP and is not subject to Code of Civil Procedure section 425.16.

City of Montebello v. Vasquez
California Supreme Court, 2016
1 Cal.5th 409, 205 Cal.Rptr.3d 499, 376 P.3d 624

A city sued three of its former council members and a former city administrator, claiming they violated Gov. Code, § 1090, by voting on a waste hauling contract in which they held a financial interest.  The trial court denied defendants’ anti-SLAPP motion.    The Court of Appeal affirmed, holding that defendants’ votes on the contract were not protected activity under § 425.16.  The Supreme Court reversed and remanded, holding that the council member defendants’ votes cast in favor of the contract at issue constituted protected activity under § 425.16.

Club Members for an Honest Election v. Sierra Club
California Supreme Court, 2008
45 Cal.4th 309, 86 Cal.Rptr.3d 288, 196 P.3d 1094

Club Members for an Honest Election (Club) sued the Sierra Club, claiming its elections were unfairly influenced when the board of directors promoted the views that advanced the majority of the Board and members’ position, in conflict with Club’s minority interests. The Court of Appeal applied the public interest litigation exception under C.C.P. 425.17(b) and allowed plaintiff’s claim to proceed, based on the reasoning that the main purpose of the lawsuit was to protect the public interest. The California Supreme Court reversed this decision, holding that the Court of Appeal applied the exception too broadly. The Supreme Court rejected the appellate court’s application of the “principle thrust or gravamen” test and stated that 425.17(b) must be narrowly interpreted. For a claim to fall within the public interest exception, the plaintiff must seek to advance the public interest, and only the public interest. In this case, plaintiff requested remedies that would benefit Club by advancing its interests within the Sierra Club. By seeking a personal gain, the plaintiff was prohibited from invoking the exception. The Court ruled in favor of the Sierra Club and granted its anti-SLAPP motion.

Equilon Enterprises, LLC v. Consumer Cause, Inc.
California Supreme Court, 2002
29 Cal.4th 53, 124 Cal.Rptr.2d 507, 52 P.3d 685
Note:  This case was reviewed together with Navellier v. Sletten and City of Cotati v. Cashman

The party moving to strike a complaint under the anti-SLAPP statute is not required to demonstrate that the action was brought with the intent to chill the exercise of constitutional speech or petition rights.

Fahlen v. Sutter Central Valley Hospitals
California Supreme Court, 2014
58 Cal.4th 655, 168 Cal.Rptr.165, 318 P.3d 833

FilmOn.com Inc. v. DoubleVerify Inc.
California Supreme Court, 2019
7 Cal.5th 133, 246 Cal.Rptr.3d 591, 439 P.3d 1156

Flatley v. Mauro
California Supreme Court, 2006
39 Cal.4th 299, 46 Cal.Rptr.3d 606, 139 P.3d 2

Flatley, a well-known entertainer, sued attorney Mauro, who threatened to take legal action against him for Flatley’s alleged rape of Mauro’s client. Mauro sent Flatley a “prelitigation settlement” offer demanding payment of $100,000,000 to settle the claim. If Flatley refused to pay, Mauro threatened to not only file a lawsuit, but to widely publicize the rape allegation, including following Flatley around to every place he toured, and to “ruin” Flatley. In addition, Mauro threatened to publicly disclose other alleged criminal violations of immigration and tax law that were entirely unrelated to the rape allegation. The Court of Appeal found that Mauro’s actions constituted extortion as a matter of law, and affirmed the trial court’s denial of his anti-SLAPP motion. The California Supreme Court agreed with the Court of Appeal, holding that a defendant cannot assert the anti-SLAPP statute to protect illegal activity if “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.” The Court noted that this was a “narrow” exception, based on the extreme circumstance in this case. Thus, the Court held that Mauro’s anti-SLAPP motion was properly denied.

Gates v. Discovery Communications, Inc.
California Supreme Court, 2004
34 Cal.4th 679, 21 Cal.Rptr.3d 663, 101 P.3d 552

Gates had been convicted of accessory after the fact to a murder and served three years in prison. Several years later Discovery produced a program about the crime, portraying Gates’s involvement. After the program was broadcast, Gates sued Discovery for defamation and invasion of privacy. The trial court granted Discovery’s demurrer to the defamation cause of action but denied its demurrer to the complaint for invasion of privacy. Discovery then filed an anti-SLAPP motion to strike the latter complaint; the court denied the motion, finding that Discovery had failed to demonstrate that its account of the crime was newsworthy, thus making it likely that Gates would prevail on his complaint for invasion of privacy. The appellate court’s reversal was upheld, since Discovery’s report is protected by the First Amendment and current case law would make it impossible for Gates to prevail on his claim.

Geiser v. Kuhns
California Supreme Court, 2022
13 Cal.5th 1238, 297 Cal. Rptr. 3d 592, 515 P.3d 623

In re Episcopal Church Cases
California Supreme Court, 2009
45 Cal.4th 467, 87 Cal.Rptr.3d 275, 198 P.3d 66

The Los Angeles Diocese sued St. James Parish to recover property when the Parish broke with the Episcopal Church, largely over a doctrinal disagreement after the Episcopal Church ordained an openly gay bishop. The Parish filed an anti-SLAPP motion, arguing that its disagreement with the Church arose from protected speech. The trial court granted the motion, which was reversed by the Court of Appeal. The California Supreme Court affirmed the appellate court’s decision and held that, because the central issue in the case was a property dispute, the anti-SLAPP motion was not appropriate. The Court recognized that protected speech was tangentially at issue, but held that the action must “arise from” protected activity for the defendant to succeed in an anti-SLAPP motion. The Court recognized that protected activity might “lurk in the background,” but found that this would not transform a property dispute into a SLAPP.

Jarrow Formulas, Inc. v. LaMarche
California Supreme Court, 2003
31 Cal.4th 728, 3 Cal.Rptr.3d 636, 74 P.3d 737

The court affirms the Court of Appeal’s decision that a malicious prosecution action is not exempt from scrutiny under the state’s anti-SLAPP law.

Ketchum v. Moses
California Supreme Court, 2001
24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735

Ketchum sued his tenant Moses for allegedly filing false reports with government agencies about the condition of Ketchum’s property. Moses prevailed on a special motion to strike Ketchum’s complaint. Moses had a contingency fee contract with his attorney; if the anti-SLAPP motion failed, the attorney would receive no fee. The trial court awarded attorney’s fees, as required by the anti-SLAPP statute, and included a fee enhancement to reflect the risk of nonpayment in a contingency contract. It later supplemented this award with additional fees and costs after Ketchum attempted to challenge the fee award. The Court of Appeal reversed. The Supreme Court affirms the judgement of the Court of Appeal but criticizes the rationale of the Court of Appeal. A successful movant of an anti-SLAPP motion is entitled not only to attorney fees incurred in the pursuit of the anti-SLAPP motion, but also to fees incurred in litigating the award of attorney fees. While attorney fees incurred in pursuit of an anti-SLAPP motion may be enhanced to reflect contingent risk, fees incurred after a successful motion may not be so enhanced because an award of fees is mandatory under the anti-SLAPP statute and therefore there is no risk of nonpayment.

Kibler v. Northern Inyo County Local Hospital District
California Supreme Court, 2006
39 Cal.4th 192, 46 Cal.Rptr.2d 41, 138 P.3d 193

Physician George Kibler sued defendant hospital and its employees for defamation and other torts after defendants addressed complaints in a peer review meeting that Kibler was verbally abusive and physically threatening at work, resulting in his temporary suspension. Both the trial and appellate courts granted the hospital’s special motion to strike Kibler’s complaint.

The California Supreme Court reviewed the case to establish whether a hospital peer review proceeding was “any other official proceeding authorized by law” under 425.16(e)(2). The court concluded that peer review actions, mandated by the Business and Professions Code, function as a quasi-judicial proceeding and are within the ambit of anti-SLAPP protection. The court affirmed the granting of defendant’s anti-SLAPP motion.

Monster Energy Co. v. Schechter
California Supreme Court, 2019
7 Cal.5th 781, 249 Cal.Rptr.3d 295, 444 P.3d 97

Navellier v. Sletten
California Supreme Court, 2002
29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703
Note:  This case was reviewed together with Equilon Enterprises, LLC v. Consumer Cause, Inc. and City of Cotati v. Cashman

Plaintiffs sued Sletten for a variety of causes, including breach of contract for filing counterclaims in an earlier lawsuit in federal court. Sletten moved to strike this cause of action as a SLAPP, claiming that his counterclaims were protected under the First Amendment’s right of petition. The Court of Appeal (in an unpublished decision) concluded that Sletten’s counterclaims were not a “valid exercise” of that right, as required by the anti-SLAPP statute, since he had earlier waived his right to sue Navellier in a “release of claims” as a condition of return to employment. The Supreme Court reverses, holding that Sletten had met his threshold burden of demonstrating that Navellier’s action for breach of contract “is one arising from the type of speech and petitioning activity that is protected by the anti-SLAPP statute.” (See follow-on decision in Navellier v. Sletten, First District Court of Appeal.)

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism
California Supreme Court, 3/22/18

A defendant must file a special motion to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action, pursuant to CCP § 425.16(f), subject to the trial court’s discretion under that subdivision to permit late filing (rejecting contrary ruling in Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298).

Oasis West Realty, LLC v. Goldman
California Supreme Court, 2011
51 Cal.4th 811, 124 Cal.Rptr.3d 256, 250 P.3d 1115

Plaintiff sued its former attorney and his law firm for breach of fiduciary duty and related claims.  The attorney had represented the client in obtaining approval for a redevelopment project.  After the representation ended, the attorney campaigned against the city council’s approval of the redevelopment project by soliciting signatures on a referendum petition.  The trial court denied defendants’ anti-SLAPP motion, holding that the anti-SLAPP law did not apply.  The Court of Appeal reversed, holding that the claims arose from protected petitioning activity and plaintiff has not shown a probability of prevailing on its claims.  The Supreme Court reversed the Court of Appeal.  Citing the Court’s  “inherent, primary authority over the practice of law,” the Court proceeded directly to the second “prong” (whether plaintiff has shown a probability of prevailing on its claims) without addressing the first “prong” (whether the anti-SLAPP law applies).  It found that plaintiff had met its burden on the second “prong,” holding that from the undisputed facts, it was reasonable to infer that the attorney relied on confidential information in opposing the project, the requirement that a lawyer not misuse a client’s confidential information applied to discussion of public issues, and such misuse of information was not protected speech under the First Amendment.

Olson v. Doe
(January 13, 2022, S258498)

Parrish v. Latham & Watkins
California Supreme Court, 2017
3 Cal.5th 767, 400 P.3d 1

The denial of summary judgment barred a subsequent malicious prosecution action under the interim adverse judgment rule, notwithstanding a finding of bad faith.

Park v. Board of Trustees of California State University
California Supreme Court, 2017
2 Cal.5th 1057, 98 Cal. Rptr. 859, 393 P.3d 905

Professor Sungho Park sued the California State University, challenging its decision to deny him tenure, asserting that it was discriminatory.  The University filed an anti-SLAPP motion, which was denied by the trial court, holding that the anti-SLAPP statute did not apply.  In a 2-1 decision, the Court of Appeal reversed, holding that the university could invoke the anti-SLAPP law because the professor’s lawsuit was based on communications the university made in the course of arriving at its decision to deny tenure, which were made in connection with an official proceeding.

In a unanimous opinion, the California Supreme Court reversed the Court of Appeal.  The Court held that “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.  Rather, a claim may be struck only if the speech or petitioning activity itself  is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”  The Court disapproved of three Court of Appeal opinions, Nesson v. Northern Inyo County Local Hospital District, DeCambre v. Rady Children’s Hospital-San Diego, and Tuszynska v. Cunningham.

Rand Resources, LLC v. City of Carson
California Supreme Court, 2019
6 Cal.5th 610, 243 Cal.Rptr.3d 1, 433 P.3d 899

Rusheen v. Cohen
California Supreme Court, 2006
37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713

Rusheen sued Cohen for abuse of process, for allegedly filing false declarations on the issue of service, and conspiring to execute the resulting default judgment against Rusheen. Cohen filed an anti-SLAPP motion, asserting that Cohen’s conduct was privileged under Civil Code section 47(b) as communications in the course of a judicial proceeding. The trial court agreed and granted the motion. The appellate court reversed on the grounds that executing on the improper default judgment was unprivileged, noncommunicative conduct.

The California Supreme Court reversed, holding that the anti-SLAPP motion should have been granted. It concluded that where the gravamen of the complaint is a privileged communication (i.e., allegedly perjured declarations of service) the privilege extends to necessarily related noncommunicative acts (i.e., act of levying).

S.B. Beach Properties v. Berti
California Supreme Court, 2006
39 Cal.4th 374, 46 Cal.Rptr.3d 360, 138 P.3d 713

When plaintiffs voluntarily dismissed their entire action without prejudice before defendants filed an anti-SLAPP motion, defendants could not recover attorney fees and costs pursuant to 425.16, subsection (c).

Serova vs. Sony Music Entertainment et al.
California Supreme Court, 2022
13 Cal.5th 859

Simpson Strong-Tie Co. v. Gore
California Supreme Court, 2010
49 Cal.4th 12, 109 Cal.Rptr. 3d 329, 230 P.3d 1117

In 2004, defendant attorney Pierce Gore placed several newspaper ads advising deck owners of potential legal claims against plaintiff Simpson Strong-Tie. The company sued Gore, listing a litany of claims like trade libel and unfair business practices, for implying that the company’s galvanized screws were defective, and sought to enjoin the ad. When Gore filed a special motion to strike, Simpson Strong-Tie invoked C.C.P. §425.17(c), the commercial speech exception. The trial court rejected Simpson Strong-Tie’s argument and granted the special motion to strike, which was upheld on appeal.

In affirming the Court of Appeal, the California Supreme Court looked at the parameters of the commercial speech exception under 425.17(c). The Court held that the burden of showing the applicability of 425.17(c) falls on the plaintiff. The Court then clarified that the purpose of the exception was to stop businesses from using advertising to “trash talk” competitors. Gore sold legal services, not screws—he was not a business competitor with defendant, thus his ad was not the type of speech targeted by subsection (c). Under the two-step analysis, the Court found that Gore’s speech was protected.

Soukup v. Law Offices of Herbert Hafif
California Supreme Court, 2006
39 Cal.4th 260, 46 Cal.Rptr.3d 638. 139 P.3d 30

Plaintiff Peggy Soukup filed a SLAPPback action for abuse of process and malicious prosecution against her former employers after prevailing on her anti-SLAPP motion. Plaintiffs’-turned-defendants’ attorney Herbert Hafif then filed a special motion to strike her complaint.

The California Supreme Court considered the legislative purpose of C.C.P. §425.18(h), which precludes a SLAPPback defendant from filing a special motion to strike if the underlying action was illegal as a matter of law; the statute also “stack[s] the procedural deck in favor” of SLAPPback plaintiffs. Finding that the SLAPP Hafif filed against Soukup did not violate various statutes and was not a “sham” lawsuit, the court ruled that Hafif did not break the law in asserting claims against Soukup, despite the fact that his claim was dismissed as a SLAPP. Ultimately, the court found that Soukup showed a probability of prevailing on the malicious prosecution claim and remanded the case for further proceedings.

In a separate motion, Hafif’s anti-SLAPP appellate counsel Ronald Stock sought to strike Soukup’s claim, arguing that his limited involvement in appealing the anti-SLAPP motion was insufficient to sustain a malicious prosecution claim. The Court rejected this argument based on the evidence.

Sweetwater Union High School District v. Gilbane Building Co.
California Supreme Court, 2019
6 Cal.5th 931, 243 Cal.Rptr.3d 880, 434 P.3d 1152

Taus v. Loftus
California Supreme Court, 2007
40 Cal.4th 683, 54 Cal.Rptr.3d 775. 151 P.3d 1185

Nicole Taus sued defendant authors for defamation and other torts after a journal published articles relating to a psychologist’s study about her as a child. The California Supreme Court reversed the appellate court on several grounds, but affirmed its finding that Taus could proceed with her claim of improper intrusion into private matters.

While recognizing that it is common practice for reporters to conceal motives in newsgathering, the Court drew a distinction, finding that this protection was not so broad as to allow a person to falsely pose as the colleague of a mental health professional to elicit highly personal information about a subject from the subject’s relative or close friend. While a single claim survived on appeal, the Court awarded costs and fees to defendants because the majority of plaintiff’s claims should have been dismissed under the anti-SLAPP statute.

The Court also expressed reservations about the appellate court’s unequivocal conclusion that Taus was not a limited public figure based on her consent to be the subject of a prominent medical study, and revealing her face and voice in publicly viewed materials.

Varian Medical Systems, Inc. v. Delfino
California Supreme Court, 2005
35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958

“The perfecting of an appeal from the denial of a special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion.”

Vargas v. City of Salinas
California Supreme Court, 2009
46 Cal.4th 1, 92 Cal.Rptr.3d 286, 205 P.3d 207

The City of Salinas distributed a newsletter explaining Measure O, a contentious ballot measure that would phase out the city’s utility tax. Supporters of the ballot measure sued the city for expending public funds on the newsletter, claiming it was an impermissible election communication as defined by the Government Code.

The California Supreme Court affirmed the appellate court’s granting of defendants’ anti-SLAPP motion, but based its conclusion on a different standard than the Court of Appeal. The Court clarified that government entities and public officials are entitled to anti-SLAPP protection. The Court concluded that plaintiffs failed to establish a prima facie case that defendants’ conduct was unlawful and affirmed the Court of Appeal’s judgment granting defendants’ anti-SLAPP motion.

Wilson v. Cable News Network, Inc.
California Supreme Court, 2019
7 Cal.5th 871, 249 Cal.Rptr.3d 569, 444 P.3d 706

Wilson v. Parker, Covert & Chidester
California Supreme Court, 2002
28 Cal.4th 811, 123 Cal.Rptr.2d 19, 50 P.3d 733
Note:  Opinion overruled in part by Assembly Bill 1158 (2005), amending Code of Civil Procedure section 425.16(b)(3).

The issue presented is whether, in an action for malicious prosecution, denial of an anti-SLAPP motion in the underlying action establishes that there was probable cause to support the action, thus precluding a suit for malicious prosecution. The court says it does when the denial is predicated on a finding that the action had potential merit.

Zamos v. Stroud California Supreme Court, 2004 32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.

source

 

SLAPP Cases Decided by the California Courts of Appeal

The following is a list of published SLAPP opinions decided by the California Courts of Appeal and a brief summary of some of them.   Clicking on the name of the case will lead to the text of the opinion.  For most opinions issued on or after April 3, 2013, clicking on the case name will lead to the text of the opinion on Google Scholar.

 

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1-800 Contacts, Inc. v. Steinberg
(2003, 2d District – 107 Cal.App.4th 568, 132 Cal.Rptr.2d 789)
Plaintiff sued Steinberg for business damages, alleging that Steinberg had colluded with plaintiff’s former employee to promote legislative action adverse to plaintiff’s business by facilitating meetings between the former employee and representatives of professional associations. The trial court granted Steinberg’s anti-SLAPP motion to strike the entire complaint on the grounds that the cause of action was conduct “in furtherance of free speech or petition in connection with a public issue” and plaintiff had not demonstrated a probability of prevailing on its complaint, including counts of inducing breach contract and inducing breach of fiduciary duties. The appellate court affirms.
569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.
(2016, 4th District – 6 Cal.App.5th 426, 212Cal.Rptr.3d 304)
(modified 12-29-16)
1100 Park Lane Associates v. Feldman
(2008, 1st District – 160 Cal.App.4th 1467, 74 Cal.Rptr.3d 1)
1550 Laurel Owner’s Assn., Inc. v. Appellate Division of Superior Court
(2018, 2d District – 28 Cal.App.5th 1146, 239 Cal.Rptr.3d 740)

A

Abir Cohen Treyzon Salo, LLP v. Lahiji
(2019, 2d District – 40 Cal.App.5th 882, 254 Cal.Rptr.3d 1)
Abuemeira v. Stephens
(2016, 2d District – 246 Cal.App.4th 1291, 201 Cal.Rptr.3d 437)
Albanese v. Menounos
(2013, 2d District – 218 Cal.App.4th 923, 160 Cal.Rptr.3d 546)
Alfaro v. Waterhouse Management
(2022, B313842)
A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc.
(2006, 4th District – 137 Cal.App.4th 1118, 41 Cal.Rptr.3d 1)
Aguilar v. Goldstein
(2012, 2d District – 207 Cal.App.4th 1152, 144 Cal.Rptr3d 238)
All One God Faith, Inc. v. Organic and Sustainable Industry Standards, Inc.
(2010, 1st District – 183 Cal.App.4th 1186, 107 Cal.Rptr.3d 861)
Alpha & Omega Development, LP v. Whillock Contracting, Inc.
(2011, 4th District – 200 Cal.App.4th 656, 132 Cal.Rptr.3d 781)
Alston v. Dawe
(2020, 4th District – 52 Cal.App.5th 706, 267 Cal.Rptr.3d 1)
American Humane Association v. Los Angeles Times Communications
(2001, 2d District – 92 Cal.App.4th 1095, 112 Cal.Rptr.2d 488)
Plaintiff sought declaratory relief to prevent the LA Times from using a confidential internal report about conflicts of interest in the plaintiff organization. The trial court’s denial of a special motion to strike the complaint is reversed. In the published portion of its opinion, the appellate court addresses the question of the timing of a request for attorney fees and costs
(2011, 4th District – 200 Cal. App. 4th 656)
Ampex Corp. v. Cargle
(2005, 1st District – 128 Cal.App.4th 1569, 27 Cal.Rptr.3d 863)
Ampex sued an anonymous Internet poster for defamation and the poster responded with an anti-SLAPP motion. Once the poster was identified as Cargle, Ampex dismissed the suit and refiled the action in New York. The appellate court in an earlier opinion ruled that the trial court had jurisdiction to rule on the anti-SLAPP motion even after dismissal. In this opinion the court holds that Cargle was the prevailing party in the trial court and was therefore entitled to attorney fees under the anti-SLAPP statute.
Anderson v. Geist
(2015, 4th District – 236 Cal.App.4th 79, 186 Cal.Rptr.3d 286)
Animal Legal Defense Fund v. LT Napa Partners LLC
(2015, 1st District – 234 Cal.App.4th 1270, 184 Cal.Rptr.3d 759)
Annette F. v. Sharon S.
(2004, 4th District – 119 Cal.App.4th 1146, 15 Cal.Rptr.3d 100)
This case arose from highly publicized and controversial litigation concerning the validity of “second-parent” adoptions. The parties were domestic partners. Sharon bore two children by artificial insemination during the relationship. Annette successfully petitioned the court to adopt the first child as a second parent. After the couple separated Annette filed a legal action to adopt the second child. Following that action, Annette sued Sharon for defamation arising from statements made by Sharon in a letter to an advocacy organization. The trial court’s denial of a special motion to strike the complaint is reversed. The trial court ruled that the action arose from constitutionally protected speech but concluded that Annette had established a probability of prevailing on her claim. The appellate court disagrees on the grounds that Annette is a public figure by virtue of the public controversy surrounding the adoption proceedings and cannot prove the actual malice required of public figures alleging defamation.
Anschutz Entertainment Group, Inc. v. Snepp
(2009, 2d District – 164 Cal.App.4th 1108, 79 Cal.Rptr.3d 849)
Antounian v. Louis Vuitton Malletier
(2010, 2d District – 189 Cal.App.4th 438, 117 Cal.Rptr.3d 3)
Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc.
(2008, 2d District – 138 Cal.App.4th 1307, 42 Cal.Rptr.3d 371)
Area 51 Productions, Inc. v. City of Alameda
(2018, 1st District – 20 Cal.App.5th 581, 229 Cal.Rptr.3d 165)
Area 55, LLC v. Nicholas & Tomasevic, LLP
(2021, 4th District – 61 Cal.App.5th 136, 275 Cal.Rptr.3d 519)
Aron v. WIB Holdings
(2/28/2018, 2d District – 21 Cal.App.5th 1069, 231 Cal.Rptr.3d 1)
Argentieri v. Zuckerberg
(2017, 1st District – 8 Cal.App.5th 768, 214 Cal.Rptr.3d 358)
Armin v. Riverside Community Hospital
(2016, 4th District – 5 Cal.App.5th 810, 210 Cal.Rptr.3d 388)
ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc.
(2006, 2d District – 42 Cal.App.4th 1170, 50 Cal.Rptr.2d 62)
Association for L.A. Deputy Sheriffs v. L.A. Times Communs. LLC
(2015, 2d District – 239 Cal.App.4th 808, 191 Cal.Rptr.3d 564)
Artus v. Gramercy Towers Condominium Assn.
(2022, 1st District – 76 Cal.App.5th 1043, 292 Cal.Rptr.3d 150)
Averill v. Superior Court
(1996, 4th District – 173 Cal.App.4th 1325, 93 Cal.Rptr.3d 782)
Averill publicly criticized a plan by a charitable organization to convert a house in her neighborhood into a shelter for battered women. After she attempted to pursuade her employer not to contribute to the charity, the charity sued her for slander solely for her comments to her employer. The lower court’s denial of Averill’s special motion to strike the complaint is reversed. The appellate court holds that comments made in private, if made in connection with a public issue, are protected by the anti-SLAPP statute.

B

Baharian-Mehr v. Smith
(2010, 4th District – 189 Cal.App.4th 265, 117 Cal.Rptr.3d 153)
Bailey v. Brewer
(2011, 2d District – 197 Cal.App.4th 781, 128 Cal. Rptr. 3d 380)
Balla v. Hall
(2021, 4th District – 59 Cal.App.5th 652, 273 Cal.Rptr.3d 695)
Balzaga v. Fox News Network, LLC
(2009, 4th District – 173 Cal.App.4th 1325, 93 Cal.Rptr.3d 782)
Barak v. The Quisenberry Law Firm
(2006, 2d District – 135 Cal.App.4th 654, 37 Cal.Rptr.3d 688)
Plaintiff filed a complaint for malicious prosecution against Michael Larivee and the Quisenberry Law Firm. The trial court allowed Larivee to join in the Quisenberry Law Firm’s special motion to strike and granted the motion even though the hearing was held more than 30 days after service. Affirming the lower court’s ruling, the appellate court found the hearing to be timely and held that joinder to a special motion to strike is effective as long as the joining defendant demonstrates that the action arises out of protected First Amendment activity.
Barker v. Fox & Associates
(2015, 1st District – 240 Cal.App.4th 333, 192 Cal.Rptr.3d 511)
Baughn v. Department of Forestry & Fire Protection
(2016, 3d District – 246 Cal.App.4th 328, 200 Cal.Rptr.3d 764)
Beach v. Harco National Insurance Co.
(2003, 3d District – 110 Cal.App.4th 82, 1 Cal.Rptr.3d 454)
Plaintiff sued his insurer, alleging bad faith in handling his claim because of delay. The company filed an anti-SLAPP motion to strike the complaint, arguing that, because the claim was eventually submitted to arbitration, the company’s processing of the claim was an exercise of its right of petition under the First Amendment and therefore protected by both the anti-SLAPP statute and the “litigation privilege” (Civil Code § 47(b)). The trial court denied the motion and the appellate court affirms. According to the court, the cause of action lies in nonaction and delays, not in any specific statement or writing by the company, and none of this conduct involved the company’s right of petition. Moreover, “the fact that a dispute exists that might ultimately lead to arbitration does not make every step in that dispute part of a right to petition.”
Behunin v. Superior Court
(2017, 2d District – 9 Cal.App.5th 833, 215 Cal.Rptr.3d 475)
Beilenson v. Superior Court
(1996, 2d District – 44 Cal.App.4th 944, 52 Cal.Rptr.2d 357)
Beilenson defeated Sybert in an election for U.S. Congress. After the election Sybert sued Beilenson, a campaign worker, a consulting firm, and a campaign committee, alleging that Beilenson distributed libelous campaign literature. The lower court’s denial of Beilenson’s special motion to strike the complaint is reversed. The appellate court holds that the anti-SLAPP statute protects statements by candidates for public office and their supporters.
Bel Air Internet, LLC v. Morales
(2018, 2d District – 20 Cal.App.5th 924, 230 Cal.Rptr.3d 71)
Belen v. Ryan Seacrest Productions, LLCJune 29, 2021
(2021, Second District – 65 Cal.App.5th 1145, 280 Cal.Rptr.3d 662)
Benasra v. Mitchell Silberberg & Knupp LLP
(2004, 2d District – 123 Cal.App.4th 1179, 20 Cal.Rptr.3d 621)
Benasra sued lawyers who represented his business rival while still representing him, alleging breach of duty of loyalty. The trial court granted defendants’ anti-SLAPP motion. The court reverses, holding that the court’s earlier decision in Jespersen v. Zubiate-Beauchamp — that a claim for legal malpratice is not subject to an anti-SLAPP motion to strike a complaint — applies to a complaint alleging breach of attorney duty of loyalty.
Ben-Shahar v. Pickart
(2014, 2d District – 231 Cal.App.4th 1043, 180 Cal.Rptr.3d 464)
Benitez v. North Coast Women’s Care Medical Group, Inc.
(2003, 4th District – 106 Cal.App.4th 978, 131 Cal.Rptr.2d 364)
While Benitez was being treated for infertility at NCWCMG’s facility, she told her doctor she was a lesbian. Subsequently she encountered difficulties in receiving infertility treatment at NCWCMG. Benitez sued on a variety claims. Defendants filed an anti-SLAPP motion, on which the trial court did not rule. On appeal, Benitez argued that the motion is without merit and should be denied. The appellate court refuses to consider the issue on the grounds that there is no appealable order from the trial court.
Bently Reserve LP v. Papaliolios
(2013, 1st District – 218 Cal.App.4th 418, 160 Cal.Rptr.3d 423)
Benton v. Benton
(2019, 4th District – 39 Cal.App.5th 212, 252 Cal.Rptr.3d 118)
Bergman v. Drum
(2005, 2d District – 129 Cal.App.4th 11, 28 Cal.Rptr.3d 112)
Bergman sued attorney Drum for malicious prosecution of a case against her, and in response Drum filed an anti-SLAPP motion. The motion was denied and then affirmed in an earlier appeal, in which the appellate court concluded that Bergman had demonstrated a likelihood of prevailing on her claim. Thereafter the trial court granted summary judgment for the defendant. In this appeal the court holds that the doctrine of the law of the case precluded summary judgment for the defendant because summary judgement was inconsistent with the appellate court’s previous ruling concerning the anti-SLAPP motion.
Bergstein v. Stroock & Stroock & Lavan LLP
(2015, 2d District – 236 Cal.App.4th 793, 187 CAl.Rptr.3d 36)
Bernardo v. Planned Parenthood Federation of America
(2004, 4th District – 115 Cal.App.4th 322, 9 Cal.Rptr.3d 197)
Plaintiffs sued Planned Parenthood under California’s Unfair Competition Law (Business & Professions Code § 17200 et seq.), alleging that its websites contained “unlawful, unfair, confusing, and misleading statements” concerning abortion, and seeking injunctive relief. Defendants filed an anti-SLAPP motion, which was granted by the trial court after plaintiffs were unable to show a reasonable probability of prevailing on their claims for injunctive relief. On appeal, plaintiffs argued that the state’s anti-SLAPP statute is unconstitutional on its face. The appellate court rejects all of plaintiffs’ arguments and affirms the order granting the anti-SLAPP motion.
Bernstein v. LaBeouf
(2019, 2d District – 43 Cal.App.5th 15, 257 Cal.Rptr.3d 173)
Bikkina v. Mahadevan
(2015, 1st District – 241 Cal.App.4th 70, 193 Cal.Rptr.3d 499)
Birkner v. Lam
(2007, 1st District – 156 Cal.App.4th 275, 67 Cal.Rptr.3d 190)
Blackburn v. Brady
(2004, 4th District – 116 Cal.App.4th 460, 10 Cal.Rptr.3d 696)
Blackburn obtained an undivided one-half interest in property co-owned by Brady and his partner Lanser at public auction in partial satisfaction of a money judgment against Lanser. In this action for partition Blackburn also alleges fraud, that Brady and Lanser conspired to drive up the value of the land at auction. Brady filed a special motion to strike the complaint for fraud, arguing that his written bid and any oral statements made at the auction were made in connection with an official proceeding, i.e., Brady’s lawsuit against Lanser, and thus was protected by the anti-SLAPP statute. The trial court denied the motion and the appellate court affirms. The court agrees with existing case law that the anti-SLAPP statute does not protect every act having any connection, however remote, with an official proceeding. In order for statements or writings to be protected by the statute they must be made in connection with “an issue under consideration or review” in the proceeding.
Blanchard v. DIRECTV, Inc.
(2004, 2d District – 123 Cal.App.4th 903, 20 Cal.Rptr.3d 385)
DIRECTV sent letters to thousands of people who purchased devices that can pirate DIRECTV’s television signals, demanding that the recipients cease using the devices. Several recipients of these demand letters filed a complaint against DIRECTV, alleging that the mailing of the demand letters was an unfair business practice (Business & Professions Code, § 17200). DIRECTV filed an anti-SLAPP motion, which the trial court granted. The appellate court affirms, holding that the provision of the state’s anti-SLAPP statute that excludes public interest lawsuits does not apply to the plaintiff-purchasers’ action, and DIRECTV is entitled to have the complaint stricken.
Bleavins v. Demarest
(2011, 2d District – 196 Cal. App. 4th 1533, 127 Cal.Rptr.3d 580)
Blue v. Office of Inspector General
(2018, 3d District – 23 Cal.App.5th 138, 232 Cal.Rptr.3d 590)
Bonni v. St. Joseph Health System
(2017, 4th District – 13 Cal.App.5th 851, 220 Cal.Rptr.3d 598)
Bonni v. St. Joseph Health System
(2021, 4th District – 11 Cal.5th 995, 281 Cal. Rptr. 3d 678)
Bonni v. St. Joseph Health System
(2022, 4th District – 83 Cal. App. 5th 288, 298 Cal. Rptr. 3d 730)
Booker v. Rountree
(2007, 4th District – 155 Cal.App.4th 1366, 66 Cal.Rptr.3d 733)
Bowen v. Lin
(2022, 2d District – 80 Cal. App. 5th 155)
Bradbury v. Superior Court
(1996, 2d District – 49 Cal.App.4th 1108, 57 Cal.Rptr.2d 207)
A deputy sheriff shot and killed a citizen during execution of a search warrant. Following an investigation by the district attorney, the deputy was exonerated. However, the DA’s public report of the investigation questioned the veracity of the affidavit supporting the search warrant. The deputy sued the district attorney for slander. The trial court’s denial of the district attorney’s special motion to strike the complaint is reversed. Held: the state’s anti-SLAPP statute applies to public employees who issue reports and comment on issues of public interest relating to their official duties. Moreover, public entities are “persons” for the purpose of the anti-SLAPP statute and thus entitled to recover attorney fees when they prevail on a special motion to strike a complaint.
Branner v. Regents University of California
(2009, 1st District – 175 Cal.App.4th 1043, 96 Cal.Rptr.3d 690)
Braun v. The Chronicle Publishing Co.
(1997, 1st District – 52 Cal.App.4th 1036, 61 Cal.Rptr.2d 58)
Brenton v. Metabolife International, Inc.
(2004, 4th District – 116 Cal.App.4th 679, 10 Cal.Rptr.3d 702)
Brenton sued for product liability and other causes of tort action, alleging that she suffered a psychotic breakdown after using a Metabolife product. She also alleged that Metabolife’s false advertising and misbranding of the product violated the state’s unfair business practices statute (Business & Professions Code § 17200). Metabolife moved to strike the entire complaint as a SLAPP, arguing that Brenton’s complaint targeted protected commercial speech. The trial court denied the motion and the appellate court affirms. According to the court, the specific issue in this case is a recurring one: whether a claim against a manufacturer for physical injury, allegedly caused by use of its product, is subject to the anti-SLAPP statute merely because the manufacturer also engaged in commercial speech to market the product. The court rejects Metabolife’s argument that its labeling and advertising of the product are protected by the anti-SLAPP statute because they constitute, in the statute’s terms, written statements made in a place open to the public in connection with an issue of public interest. In addition, the court holds that the newly enacted Code of Civil Procedure section 425.17 (effective Jan. 1, 2004) expressly removes Brenton’s complaint for unfair business practices from the anti-SLAPP statute’s protection. (Section 425.17 provides that the anti-SLAPP motion to strike a complaint cannot be applied to “any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, … arising from any statement or conduct by that person,” as long as certain conditions are met.) The court rejects Metabolife’s argument that section 425.17 is unconstitutional because it cannot withstand the strict scrutiny standard articulated by the U.S. Supreme Court in Central Hudson Gas & Elec. v. Publ. Serv. Comm’n (1980). (See also Martinez v. Metabolife International, Inc., 4th District Court of Appeal (2003); Scott v. Metabolife International, Inc., 3d District Court of Appeal (2004).)
Briganti v. Chow
(2019, 2d District – 42 Cal.App.5th 504, 254 Cal.Rptr.3d 909)
Brighton Collectibles, LLC v. Hockey
(2021, 2nd District – 65 Cal.App.5th 99, 279 Cal.Rptr.3d 518)
Brill Media Co., LLC v. TCW Group, Inc.
(2005, 2d District – 132 Cal.App.4th 324, 33 Cal.Rptr.3d 371)
74 affiliated media companies sued defendant bond holders and their related entities for breach of contract and interference with economic relations, alleging defendants caused the default of and liquidation of plaintiffs’ entities by breaching confidentiality agreements and interfering with pending contracts. Defendants filed an anti-SLAPP motion, which the trial court granted. The appellate court reversed, concluding plaintiffs’ claims arose out of commercial speech and conduct and therefore fell under the Code of Civil Procedure section 425.17 exemption to the anti-SLAPP statute. Judge Bosk dissented.
Britts v. Superior Court
(2006, 6th District -145 Cal.App.4th 1112, 52 Cal.Rptr.3d 185)
Brodeur v. Atlas Entertainment, Inc.
(2016, 2d District – 248 Cal.App.4th 665, 204 Cal.Rptr.3d 483)
Brown v. Grimes
(2011, 2d District – 192 Cal.App.4th 265, 120 Cal.Rptr.3d 893)
Burrill v. Nair
(2013, 3d District – 217 Cal.App.4th 357, 158 Cal.Rptr.3d 332)

C

C.W. Howe Partners Inc. v. Mooradian
(2019, 2d District – 43 Cal.App.5th 688, 256 Cal.Rptr.3d 806)
Cabral v. Martins
(2009, 1st District – 177 Cal.App.4th 471, 99 Cal. Rptr.3d 394)
California Back Specialists Medical Group v. Rand
(2008, 2d District – 160 Cal.App.4th 1032, 73 Cal.Rptr.3d 268)
Callanan v. GRIZZLY DESIGNS, LLC
(June 29, 2022, C094008)
Carpenter & Zuckerman, LLP  v. Cohen
(2011, 2d District – 195 Cal.App.4th 373, Cal.Rptr.3d)
Carpenter v. Jack in the Box Corp.
(2007, 2d District – 151 Cal.App.4th 454, 59 Cal.Rptr.3d 839)
Carver v. Bonds
(2005, 1st District – 169 Cal.App.4th 328, 37 Cal.Rptr.3d 480) 
Plaintiff podiatrist sued baseball player, reporters, and newspaper for defamation arising from statements in a newspaper article. Defendants’ anti-SLAPP motions were granted; plaintiff appealed. The appellate court affirmed, concluding that stating facts and opinions about plaintiff was plainly “conduct in furtherance of the exercise of … [defendants’] constitutional right[s] of free speech” within the meaning of Code of Civil Procedure section 425.16, subdivision (e)(4); and since the statements served as a warning against plaintiff’s method of self-promotion, and were provided along with other information to assist patients in choosing doctors, the statements involved a matter of public concern. Furthermore, because plaintiff could not prove falsity, and because some of the newspaper’s statements were privileged, he did not demonstrate a probability of prevailing on his claims.
Castillo v. Pacheco
(2007, 2d District – 150 Cal.App.4th 242, 58 Cal.Rptr.3d 305)
Castleman v. Sagaser
(2013, 5th District – 216 Cal.App.4th 481, 156 Cal.Rptr.3d 492)
Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc.
(2022, 1st District – 73 Cal.App.5th 764, 288 Cal.Rptr.3d 773)
Central Valley Hospitalists v. Dignity Health
(2018, 1st District – 19 Cal.App.5th 203, 227 Cal.Rptr.3d 848)
Century21 v. Haberman
(2009, 4th District – 173 Cal.App.4th 1, 92 Cal.Rptr.3d 249)
Chabak v. Monroy
(2007, 5th District – 140 Cal.App.4th 821, 44 Cal.Rptr.3d 777)
Chaker v. Mateo
(2012, 4th District – 209 Cal.App.4th 1138, 147 Cal.Rptr.3d 496)
Chambers v. Miller
(2006, 4th District – 94 Cal.App.4th 1083, 114 Cal.Rptr.2d 825)
Changsha Metro Group Co., Ltd. v. Peng Xufeng
(2020, 4th District – 57 Cal.App.5th 1, 270 Cal.Rptr.3d 853)
Charney v. Standard General, L.P.
(2017, 2d District – 10 Cal.App.5th 149, 215 Cal.Rptr.3d 889)
Chavez v. Mendoza
(2001, 4th District – 148 Cal.App.4th 71, 55 Cal.Rptr.3d 600)
Mendoza sued an insurance company and its agents, Richard and Ina Chavez, asserting numerous contract and tort claims. All claims but one were dismissed. Subsequently the Chavezes sued Mendoza for malicious prosecution. Mendoza moved to strike the complaint as a SLAPP. The trial court ruled that a malicious prosecution complaint was not subject to the state’s anti-SLAPP statute. The appellate court reversed the ruling, holding that a malicious prosecution complaint is subject to a special motion to strike under the anti-SLAPP statute. However, the court also concluded that the Chavezes had demonstrated a probability of prevailing on their complaint and therefore affirmed the trial court’s denial of Mendoza’s special motion to strike the complaint.
Cheveldave v. Tri Palms Unified Owners Assn.
(2018, 4th District – 27 Cal.App.5th 1202, 238 Cal.Rptr.3d 792)
Chitsazzadeh v. Kramer & Kaslow
(2011, 2d District – 199 Cal.App.4th 676, 130 Cal.Rptr.3d 910)
Cho v. Chang
(2013, 2d District – 219 Cal.App.4th 521, 161 Cal.Rptr.3d 846)
Chodos v. Cole
(2012, 2d District – 210 Cal.App.4th 692, 148 Cal.Rptr.3d 451)
Christian Research Institute v. Alnor (“Alnor I”)
(2007, 4th District – 165 Cal.App.4th 1315, 81 Cal.Rptr.3d 866)
Christian Research Institute v. Alnor (“Alnor II”)
(2008, 4th District – 81 Cal.Rptr.3d 866)
Church of Scientology of California v. Wollersheim
(1996, 2d District – 42 Cal.App.4th 628, 49 Cal.Rptr.2d 620)
The Church of Scientology filed a lawsuit seeking to vacate a multimillion dollar judgment against it, in favor of our client, Lawrence Wollersheim. This was part of extensive and drawn-out litigation (lasting 15 years) between Scientology and Wollersheim. The trial court granted Wollersheim’s anti-SLAPP motion, and the Court of Appeal affirmed, holding that the anti-SLAPP statute applies to causes of action arising from any act in furtherance of the right of petition, such as Wollersheim’s original successful lawsuit, regardless of the subject matter. More than $428,000 in fees were awarded.
Citizens of Humanity, LLC v. Hass
(2020, 4th District – 46 Cal.App.5th 589, 259 Cal.Rptr.3d 380)
Citizens of Humanity, LLC v. Ramirez
(2021, 2d District – 63 Cal.App.5th 117, 277 Cal.Rptr.3d 501)
City of Alhambra v. D’Ausilio
(2011, 2d District – 193 Cal.App.4th 1301, 123 Cal.Rptr.3d 142)
City of Costa Mesa v. D’Alessio Investments, LLC
(2013, 4th District – 214 Cal.App.4th 358, 154 Cal.Rptr.3d 698)
City of Industry v. City of Fillmore
(2011, 2d District – 198 Cal.App.4th 191, 129 Cal.Rptr.3d 433)
City of Long Beach v. California Citizens for Neighborhood Empowerment
(2003, 2d District – 111 Cal.App.4th 302, 3 Cal.Rptr.3d 473)
City filed a civil complaint against CCNE, alleging violations of the municipal code concerning campaign contributions. The trial court granted defendants’ anti-SLAPP motion to strike the complaint, holding that the “prosecutorial exemption” in the anti-SLAPP statute did not apply to the complaint and the city had not demonstrated that it was likely to prevail on the complaint. The appellate court reverses on the grounds that the prosecutorial exemption — “enforcement actions brought in the name of the people of the State of California” — applies to civil actions by cities enforcing municipal law. According to the court, the legislative history of the statute indicates a broader intent behind the exemption than is evident from the specific wording. (See also People v. Health Laboratories of North America, Inc., 1st District Court of Appeal, and People ex rel. Lockyer v. Brar, 4th District Court of Appeal.)
City of Los Angeles v. Animal Defense League
(2006, 2d District – 135 Cal.App.4th 606, 37 Cal.Rptr.3d 632)
The City of Los Angeles, on behalf of two of its employees, filed petitions seeking workplace violence protective orders under Code of Civil Procedure section 527.8 against animal rights activists. Defendants filed anti-SLAPP motions which the trial court denied, holding that the petitions were exempt as public entity enforcement actions under Code of Civil Procedure section 425.16(d).The Court of Appeal reversed, finding that the exemption did not apply because the City filed the petitions as “employer” and not in its capacity as “public prosecutor” the petitions arose from protected free speech activity; and the City failed to demonstrate a probability it would prevail on its claims because (1) the protective orders under section 527.8 can only be brought against natural persons (not ADL), and (2) the City presented no evidence that individual defendant Ferdin conveyed a credible threat of violence in the workplace.
City of Riverside v. Stansbury
(2007, 4th District – 155 Cal.App.4th 1582, 66 Cal.Rptr.3d 862)
City of San Diego v. Dunkl
(2001, 4th District – 86 Cal.App.4th 384, 103 Cal.Rptr.2d 269)
The City and the partnership that owns the San Diego Padres baseball team filed preemptive suits against proponents of a ballot initiative that would have made certain negative findings concerning an earlier city ordinance that authorized funds for construction of a downtown ballpark. Plaintiffs argued that the initiative was invalid and should not be placed on the ballot even if adequate signatures were obtained because the initiative sought to enact measures that were beyond the power of hte voters to adopt. Defendants filed a special motion to strike. The trial court granted summary judgment and ruled that in consequence the SLAPP motion was moot. The appellate court affirms. “Where . . . declaratory relief actions present purely legal questions about the validity of the subject matter of the lawsuits, . . . the SLAPP issue of whether the plaintiffs are more probably than not going to prevail in their actions may appropriately be determined by the use of related summary judgment proceedings.”
City of Santa Monica v. Stewart
(2005, 2d District – 126 Cal.App.4th 43, 24 Cal.Rptr.3d 72)
Several lawsuits were brought concerning enforcement of initiatives approved by voters in Santa Monica and Pasadena. The initiatives sought to prevent city officials from receiving certain advantages from persons or entities who benefited from decisions made by those officials. Pasadena officials refused to certify the initiative on the grounds that they believed it was unconstitutional. A Pasadena resident filed a petition for a writ of mandate to require the city to certify the initiative; the initiative’s sponsor was granted leave to intervene. The city filed a cross-complaint against the sponsor seeking a judicial declaration that the city had no duty to certify the initiative under the law. The sponsor filed an anti-SLAPP motion to strike the cross-complaint, which the trial court denied. The appellate court reverses on the grounds that the cause of action in the cross-complaint arose from protected First Amendment activity and the city was not able to demonstrate the required probability of succeeding on the cross-complaint.
CKE Restaurants, Inc. v. Moore
(2008, 2d District – 159 Cal.App.4th 262, 70 Cal.Rptr.3d 921)

Clarity Co. Consulting v. Gabriel
(2022, 2d District – 77 Cal.App.5th 454, 292 Cal.Rptr.3d 532)

Clark v. Mazgani
(2009, 2d District – 170 Cal.App.4th 1280, 89 Cal.Rptr.3d 24)
Club Members for an Honest Election v. Sierra Club
(2006, 1st District – 137 Cal.App.4th 1166, 40 Cal.Rptr.3d 818)
Note! Opinion superseded by California Supreme Court’s granting of petition for review on June 21, 2006 (S143087).Plaintiffs filed suit against Sierra Club, alleging improper distribution of information during an election to the Club’s board of directors. The trial court granted Sierra Club’s anti-SLAPP motion. The appellate court affirmed in part and reversed in part. It reversed as to three causes of action which it found were exempt under Code of Civil Procedure section 425.17(b) as a public interest action. It also found that one cause of action was not exempt under section 425.17(b) because the claim “seeks relief pertaining specifically to [two named directors] … [and] the gravamen of a cause of action seeking relief of such a personal kind does not satisfy the public interest criterion of the exemption of § 425.17.” The court found that the claim arose from acts protected by the First Amendment in connection with a public issue, and that the uncontested summary judgment in favor of defendant conclusively established that plaintiff had no probability of prevailing.
Cohen v. Brown
(2009, 2d District – 173 Cal.App.4th 302, 93 Cal.Rptr.3d 24)
Cole v. Patricia A. Meyer & Associates, APC
(2012, 2d District – 206 Cal.App.4th 1095, 142 Cal.Rptr.3d 646)
Collier v. Harris
(2015, 4th District – 240 Cal.App.4th 41, 192 Cal.Rptr.3d 31)
Collondrez v. City of Rio Vista
(2021, 1st District – 61 Cal.App.5th 1039, 275 Cal.Rptr.3d 895)
Colt v. Freedom Communications, Inc.
(2003, 4th District – 109 Cal.App.4th 1551, 1 Cal.Rptr.3d 245)
The Securities and Exchange Commission filed a complaint against Colt for “an illegal scheme to manipulate the price of four stocks.” Colt responded to the SEC action by stipulating to a consent decree. After Freedom Communications published stories about the SEC allegations, Colt sued for defamation and other damages. The trial court granted defendant’s anti-SLAPP motion to strike the complaint, and the appellate court affirms. The court concluded that, because defendant is immune from liability for the articles under Civil Code section 47 and plaintiff had not offered credible evidence of actual malice, plaintiff had not established a probability of prevailing on the complaint as required by the anti-SLAPP statute.
Coltrain v. Shewalter
(2003, 4th District – 66 Cal.App.4th 94, 77 Cal.Rptr.2d 600)
Our clients, the neighbors of an apartment complex, filed nuisance actions in small claims court against the owners of the complex, after unsuccessful attempts to abate alleged criminal activity and harassment by residents of the complex. In retaliation, the owners of the complex sued our clients for trade libel, defamation, and intentional and negligent infliction of emotional distress. After our clients filed an anti-SLAPP motion, the plaintiffs dismissed their complaint. The Court of Appeal found that our clients were targets of a SLAPP and were entitled to recover our attorneys fees, even though the plaintiffs dismissed the complaint.
Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes
(2017, 2d District – 9 Cal.App.5th 119, 214 Cal.Rptr.3d 767)
Commonwealth Energy Corp. v. Investor Data Exchange, Inc.
(2003, 4th District – 110 Cal.App.4th 26, 1 Cal.Rpr.3d 390)
Commonwealth Energy gave Investor Data a list of Commonwealth’s shareholders. After Investor Data used the list to market its services to the shareholders, Commonwealth sued for a variety of business-related causes of action. Investor Data filed an anti-SLAPP motion, denied by the trial court. The appellate court affirms. The court points out that, because the speech alleged to be the cause of action (Investor Data’s pitch to Commonwealth’s investors) did not occur within an official proceeding, the decision whether Investor Data’s statements are protected by the anti-SLAPP statute depends entirely on whether the statements were made in connection with a public issue (following the standard announced by the California Supreme Court in Briggs v. Eden Council for Hope and Opportunity). The court holds that a sales pitch for a commercial service does not qualify as a public issue for purposes of the anti-SLAPP statute. (See the earlier case, Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO, 1st District Court of Appeal.)
ComputerXpress, Inc. v. Jackson
(2001, 4th District – 93 Cal.App.4th 993, 113 Cal.Rptr.2d 625)
After a failed attempt at merger between ComputerXpress and a business owned by defendants, defendants posted statements about ComputerXpress on the internet and filed a complaint against ComputerXpress with the Securities and Exchange Commission (SEC). ComputerXpress sued, alleging in nine causes of action that defendants had conspired to damage its reputation and cause it economic harm. The trial court denied defendants’ motion to strike the entire complaint on the grounds that none of the causes of action fell under the anti-SLAPP statute. The appellate court noted that the nine causes of action were based on three distinct sets of facts: (1) statements made in private business transactions, (2) the internet postings, and (3) the SEC complaint. The court concluded that statements made in the internet postings and SEC complaint fell under the anti-SLAPP statute, whereas the statements made in private business transactions did not. Accordingly, the court remanded the case to the trial court to determine whether plaintiff can demonstrate a probability of prevailing on the causes of action subject to the anti-SLAPP statute. In addition, the court ruled that defendants should be considered the prevailing party on the SLAPP motion, notwithstanding their partial success, and thus are entitled to attorney fees and costs incurred by the motion.
Comstock v. Aber
(2013, 1st District – 212 Cal.App.4th 931)
Lisa Aber filed a claim of sexual harassment and battery against her employer and two of its employees. One of those employees filed a cross-complaint against Aber, alleging claims for defamation and intentional infliction of emotional distress. The trial court granted Aber’s anti-SLAPP motion and dismissed the cross-complaint. The Court of Appeal affirmed. In its decision, the Court of Appeal held that Aber’s statements to the police, a nurse, and the employer’s HR manager were all protected under the anti-SLAPP law, as statements made in, or in connection with matters under review by, an official proceeding or body, and that the cross-complainant had not shown that his claims had any merit. Cross-complainant appealed the trial court’s award of $62,299.60 for Aber’s attorneys’ fees and costs, but that appeal was later dismissed.
Conroy v. Spitzer
(1999, 4th District – 70 Cal.App.4th 1446, 83 Cal.Rptr.2d 443)
A candidate for public office sued his rival, alleging defamation in the rival’s campaign statements. The appellate court upholds the trial court’s granting of a special motion to strike the complaint. Plaintiff was a public figure and thus required to prove malice to prevail on a claim of defamation; he failed to demonstrate to the court’s satisfaction a probability of prevailing on his claim, as required to defeat the special motion.
Consumer Justice Center v. Trimedica International, Inc.
(2003, 4th District – 107 Cal.App.4th 595, 132 Cal.Rptr.2d 191)
Consumer and consumer advocate sued a manufacturer of herbal supplements, alleging false advertising and other causes of action for the company’s claim that its herbal supplement enlarged women’s breasts. The appellate court affirms the trial court’s denial of the company’s special motion to strike the complaint. Defendant had not shown that its commercial speech was protected by the state’s anti-SLAPP statute and in any event plaintiffs had demonstrated a probability of prevailing on their claims.
Contemporary Services Corp. v. Staff Pro Inc.
(2007, 4th District – 152 Cal.App.4th 1043, 61 Cal.Rptr.3d 434)
Contreras v. Dowling
(2016, 1st District – 5 Cal.App.5th 394, 208 Cal.Rptr.3d 707)
Copenbarger v. Morris Cerullo World Evangelism
(2013, 4th District – 215 Cal.App.4th 1237, 156 Cal.Rptr.3d 70)
Coretronic Corporation et al. v. Cozen O’Connor et al.
(2011, 2d District – 192 Cal.App.4th 1381, 121 Cal.Rptr.3d 254
County of Riverside v. Public Employment Relations Bd.
(2016, 4th District – 246 Cal.App.4th 20, 200 Cal.Rptr.3d 573)
Cross v. Cooper
(2011, 6th District – 197 Cal. App. 4th 357; 127 Cal. Rptr. 3d 903)
Cross v. Facebook, Inc.
(2017, 1st District – 14 Cal.App.5th 190, 222 Cal.Rptr.3d 250)
Crossroads Investors, L.P. v. Federal National Mortgage Association
(2017, 3d District – 13 Cal.App.5th 757, 222 Cal.Rptr.3d 1)
Cruz v. City of Culver City
(2016, 2d District – 2 Cal.App.5th 239, 205 Cal.Rptr.3d 736)
Cuevas-Martinez v. Sun Salt Sand, Inc.
(2019, 4th District – 35 Cal.App.5th 1109, 248 Cal.Rptr.3d 200)Curtin Maritime Corp. v. Pacific Dredge & Construction, LLC
(2022, 4th District – 76 Cal.App.5th 651, 291 Cal.Rptr.3d 639)

D

D’Arrigo Bros. of California v. United Farmworkers of America
(2014, 6th District – 224 Cal.App.4th 790, 169 Cal.Rptr.3d 171)
D.C. v. R.R.
(2010, 2d District – 182 Cal.App.4th 1190, 106 Cal.Rptr.3d 399)
Dae v. Traver
(2021, 2nd District, Division 2 – 69 Cal.App.5th 447, 284 Cal.Rptr.3d 495)
Daimler Chrysler Motors Co. v. Lew Williams, Inc.
(2006, 3d District – 142 Cal.App.4th 344, 48 Cal.Rptr.2d 233)
Damon v. Ocean Hills Journalism Club
(2000, 4th District – 85 Cal.App.4th 468, 102 Cal.Rptr.2d 205)
The appellate court upholds the trials court’s granting of a special motion to strike the complaint. Held: The anti-SLAPP statutes applies to allegedly defamatory statements made at meetings of a homeowners association and in the association’s newsletter because both forums were open to the public and the defendants’ statements “concerned the manner in which a large residential community would be governed.”
Daniel v. Wayans
(2017, 2d District – 8 Cal.App.5th 367, 213Cal.Rptr.3d 865)
Daniels v. Robbins
(2010, 4th District – 182 Cal.App.4th 204, 105 Cal.Rptr.3d 223)
Dean v. Friends of Pine Meadow
(2018, 1st District – ___ Cal.App.5th ___, 229 Cal.Rptr.3d 865)
DeCambre v. Rady Children’s Hospital-San Diego
(2015, 4th District – 235 Cal.App.4th 1, 184 Cal.Rptr.3d 888)
(modification, 4-2-15)
Decker v. The U.D. Registry, Inc.
(2003, 4th District – 105 Cal.App.4th 1382, 129 Cal.Rptr.2d 892)
Note:  Opinion overruled by Assembly Bill 1158 (2005), amending Code of Civil Procedure section 425.16.
UDR is a consumer reporting agency that gathers and sells information about unlawful detainer cases. Several tenants, after unsuccessfully attempting to have UDR amend information about them in UDR’s records, sued UDR, alleging negligence, defamation, and other acts. The trial court denied UDR’s anti-SLAPP motions to strike the complaints, finding that the motions were frivolous. The appellate court affirms on the grounds that UDR’s motions did not meet the requirement in the anti-SLAPP statute for notice of a hearing no later than 30 days after service of the motion. (See also Schoendorf v. U.D. Registry, Inc. (2002).)
de Havilland v. FX Networks, LLC
(2018, 2d District – 21 Cal.App.5th 845, 230 Cal.Rptr.3d 625)
Delois v. Barrett Block Partners
(2009, 1st District – 177 Cal.App.4th 940, 99 Cal.Rptr.3d 609)
Demetriades v. Yelp, Inc
(2014, 2d District – 228 Cal.App.4th 294, 175 Cal.Rptr.3d 131)
Dept. of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC
(2007, 2d District – 154 Cal.App.4th 1273, 65 Cal.Rptr.3d 349)
Dible v. Haight Ashbury Free Clinics
(2009,1st District – 170 Cal.App.4th 843, 88 Cal.Rptr.3d 464)
Dickens v. Provident Life & Accident Insurance Co.
(2004, 2d District – 117 Cal.App.4th 705, 11 Cal.Rptr.3d 877)
Dickens was charged in criminal court with defrauding Provident by submitting false claims that he was disabled. Dickens was acquitted by a jury. He then sued Provident, alleging malicious prosecution and other causes of action. The trial court granted defendant’s anti-SLAPP motion. The appellate court affirms, holding that a malicious prosecution claim based on termination of a criminal prosecution in plaintiff’s favor is subject to the anti-SLAPP statute. The court concludes that Dickens failed to establish a prima facie case of liability for malicious prosecution because he offered no evidence that defendant was instrumental in the criminal prosecution against Dickens.
Dickinson v. Cosby I
(2017, 2d District – 17 Cal.App.5th 655, 225 Cal.Rptr.3d 430)
Dickinson v. Cosby II
(2019, 2d District – 37 Cal.App.5th 1138, 250 Cal.Rptr.3d 350)
Digerati Holdings, LLC v. Young Money Entertainment, LLC
(2011, 2d District- 194 Cal.App.4th 873, 123 Cal.Rptr.3d 736)
Direct Shopping Network, LLC v. James
(2012, 2d District – 206 Cal.App.4th 1551, 143 Cal.Rptr.3d 1)
Dixon v. Superior Court
(1994, 4th District – 30 Cal.App.4th 733, 36 Cal.Rptr.2d 687)
Surveyor brought an action against a university professor, alleging interference with economic relationships, libel, slander, and trade libel arising from statements critical of the surveyor’s report regarding a proposed development at the university. The statements were made during the public review period following issuance of a negative declaration under the California Environmental Quality Act (CEQA). The lower court’s denial of a special motion to strike the complaint is reversed.
Doe v. Luster
(2006, 2d District – 145 Cal.App.4th 139, 51 Cal.Rptr.3d 403)
Doe v. McLaughlin
(September 21, 2022, No. A161534)
Doe v. State of California
(2017, 4th District – 8 Cal.App.5th 832, 214 Cal.Rptr.3d 391)
John Doe 2 v. Superior Court
(2016, 2d District – 1 Cal.App.5th 1300, 206 Cal.Rptr.3d 60)
Donovan v. Dan Murphy Foundation
(2012, 2d District – 204 Cal.App.4th 1500, 140 Cal.Rptr.3d 71)
Dorit v. Noe
(2020, 1st District – 49 Cal.App.5th 458, 263 Cal.Rptr.3d 98)
Dougherty v. Haag
(2008, 4th District – 165 Cal.App.4th 315, 81 Cal.Rptr.3d 1)
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
(1996, 2d District – 47 Cal.App.4th 777, 54 Cal.Rptr.2d 830)
A recording company sued a law firm for defamation for alleging the company had failed to pay royalties to charities designated by celebrities who had made a recording. The lower court’s granting of the defendants’ special motion to strike the complaint is affirmed. The law firm’s letter to celebrities who had participated in the recording is protected from defamation liability under Civil Code section 47 as a communication preliminary to an official proceeding. Defendants’ appellate attorney fees are recoverable as part of attorney fees authorized by the anti-SLAPP statute.
Dowling v. Zimmerman
(2001, 4th District – 85 Cal.App.4th 1400, 103 Cal.Rptr.2d 174)
Landlord sued attorney who represented tenants in unlawful detainer action for defamation, misrepresentation, and infliction of emotional distress. The appellate court affirms the trial court’s granting of a special motion to strike the complaints. The anti-SLAPP statute applies because the cause of action is statements made in connection with a pending unlawful detainer action, statements that arguably involved public issues of nuisance and safety (defendant stated that someone had twice entered a locked garage and turned off the dial of the tenants’ water heater). Plaintiff’s complaint was pleaded without the requisite specificity and defendant’s statements were privileged under Civil Code section 47(b). The court of appeal also stated that the provision in the anti-SLAPP law for attorney fees must be construed broadly, that a pro per defendant could collect fees under anti-SLAPP law for assistance from retained anti-SLAPP counsel, and that defendant could proceed to collect fee award even though plaintiff had appealed it, unless plaintiff posted a bond.
Drell v. Cohen
(2014, 2d District – 232 Cal.App.4th 24, 181 Cal.Rptr.3d 191)
Drum v. Bleau, Fox & Associates
(2003, 2d District – 107 Cal.App.4th 1009, 132 Cal.Rptr.2d 602)
Bleau Fox, a law firm, won a legal malpractice action against Drum and his law firm in a jury trial. Although the judge stayed the judgment pending notice of appeal, Bleau Fox immediately filed a levy against Drum’s bank account. Drum then filed a complaint against Bleau Fox for abuse of process. The trial court granted defendant’s anti-SLAPP motion to strike the complaint. The appellate court reverses on the grounds that Drum had established a prima facie case and the action is not barred by the litigation privilege (Civil Code section 47(b)).
Drummond v. Desmarais
(2009, 6th District – 176 Cal.App.4th 439, 98 Cal.Rptr.3d 394)
Du Charme v. International Brotherhood of Electrical Workers, Local 45
(2003, 1st District – 110 Cal.App.4th 107, 1 Cal.Rptr.3d 501)
After he was terminated as assistant business manager for a union, the union’s trustee posted a statement on the Internet that Du Charme had been fired for “financial mismanagement”. Du Charme sued the trustee and the union on a variety of complaints. Defendants filed an anti-SLAPP motion, which the trial court denied on the grounds that the statement posted on the Internet was not made in connection with any official proceeding and did not concern a public issue, as required by the anti-SLAPP statute. The appellate court affirms, emphasizing that a statement must concern an issue of widespread public interest to qualify for protection of the anti-SLAPP statute. “[M]ere publication … should not turn otherwise private information … into a matter of public interest.”
Dual Diagnosis Treatment Center, Inc. v. Buschel
(2016, 4th District – 6 Cal.App.5th 1098, 212 Cal Rptr 3d 75)
Dunning v. Clews
(2021, 4th District – 64 Cal.App.5th 156, 278 Cal.Rptr.3d 607)
Dunning v. Johnson
(April 23, 2021, D076570)
DuPont Merck Pharmaceutical Co. v. Superior Court
(2000, 4th District – 78 Cal.App.4th 562, 92 Cal.Rptr.2d 755)
A class action was filed against DuPont, claiming damages on behalf of purchasers of a drug manufactured by DuPont and alleging that DuPont made false statements before regulatory bodies, the medical profession, and the public regarding the drug. DuPont filed a special motion to strike the complaint under the anti-SLAPP statute. The motion was denied by the trial court. The appellate court determined that the remarks complained of were “acts in furtherance of the person’s [DuPont’s] right of petition or free speech” protected by the anti-SLAPP statute and remanded the case to the trial court to determine whether plaintiff could demonstrate a probability of prevailing on its claims, as required by the statute. (See also Vess v. Ciba-Geigy Corp., 9th Circuit Court of Appeal.)
Dwight R. v. Christy B.
(2013, 4th District – 212 Cal.App.4th 697, 151 Cal.Rptr.3d 406)
Dyer v. Childress
(2007, 2d District – 147 Cal.App.4th 1273, 55 Cal.Rptr.3d 544)
Dziubla v. Piazza
(2020, 4th District – 59 Cal.App.5th 140, 273 Cal.Rptr.3d 297)

E

Edward v. Ellis
(December 14, 2021, G059523)

Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC
(2014, 3d District – 230 Cal.App.4th 244, 178 Cal.Rptr.3d 490)
Endres v. Moran
(2006, 2d District – 135 Cal.App.4th 952, 37 Cal.Rptr.3d 786)
Plaintiffs sued, claiming defendants had committed various torts as part of a wrongful attempt to control a church. Defendants filed an anti-SLAPP motion, which the trial court granted for only one of the eleven causes of action (for conspiracy). The trial court denied defendants’ motion for attorneys fees and defendants appealed. The appellate court affirmed, finding that the results of the anti-SLAPP motion were so minimal and insignificant that the case remained essentially the same, and the defendants were not prevailing parties, justifying the lower court’s ruling that defendants should not recover fees.
Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers
(1996, 1st District – 49 Cal.App.4th 1591, 57 Cal.Rptr.2d 491)
Note:  Opinon disapproved by the California Supreme Court in Briggs v. Eden Council for Hope and Opportunity.Ericsson sued a consultant who recommended another company’s proposal to supply and install a communications system for Ventura County, alleging that the consultant intentionally misrepresented the merits of Ericsson’s proposal. The trial court’s granting of a special motion to strike the complaint is reversed. The appellate court concludes that the consultant’s report was prepared in fulfillment of a contract, not for the purpose of speaking out on a public issue (expenditure of public funds).
Evans v. Unkow
(1995, 1st District – 38 Cal.App.4th 1490, 45 Cal.Rptr.2d 624)
A former public official sued individuals who had filed a notice of petition to recall him from office, alleging that statements made in the notice were defamatory. The court affirmed the trial court’s dismissal of the action, and held that evidence opposing a special motion to strike a complaint must be admissible and declarations may generally not be based on information or belief.

F

Fair Political Practices Commission v. American Civil Rights Coalition, Inc.
(2004, 3d District – 121 Cal.App.4th 1171, 18 Cal.Rptr.3d 157)
Note: Opinion overruled by Assembly Bill 1158 (2005), amending Code of Civil Procedure section 425.16. The trial court denied defendants’ anti-SLAPP motion because it was not heard within 30 days after service of the motion and defendants did not establish that the court’s docket conditions required a later hearing, as required by the state’s anti-SLAPP statute. The appellate court affirms.
Falcon Brands, Inc. v. Mousavi & Lee, LLP
(2022, 4th District – 74 Cal.App.5th 506, 289 Cal.Rptr.3d 521)
Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles
(2004, 2d District – 117 Cal.App.4th 1138, 12 Cal.Rptr.3d 493)
A seller of women’s apparel filed an action for defamation against the Coalition, a nonprofit organization, alleging that defendants falsely claimed it was responsible for “hundreds of thousands of dollars” in unpaid wages due its workers. The trial court denied defendants’ anti-SLAPP motion, ruling that Fashion 21 had established a probability of prevailing on its complaint. The appellate court reverses on the grounds that plaintiffs failed to demonstrate a probability of proving the falsity of defendants’ statements about unpaid wages. See companion case Garment Workers Center v. Superior Court.
FilmOn.com v. DoubleVerify, Inc.
(2017, 2d District – 13 Cal.App.5th 707, 221 Cal.Rptr.3d 539)
Finato v. Keith A. Fink & Associates
(2021, 2nd District – 68 Cal.App.5th 136, 283Cal.Rptr.3d 22)
Finton Construction, Inc. v. Bidna & Keys, APLC
(2015, 4th District – 238 Cal.App.4th 200, 190 Cal.Rptr.3d 1)
Fox Searchlight Pictures, Inc. v. Paladino
(2001, 2d District – 89 Cal.App.4th 294, 106 Cal.Rptr.2d 906)
After learning that Paladino planned to sue Fox for wrongful termination, Fox sued Paladino, its former in-house counsel, alleging disclosure of confidential and privileged information. The trial court denied Paladino’s special motion to strike the complaint. The appellate court reversed, concluding that Fox could not show a likelihood of prevailing on the merits inasmuch as an in-house counsel could disclose ostensible employer-client confidences to his own attorneys in the preparation of a suit for wrongful termination by the employer.
Freeman v. Schack
(2007, 4th District – 154 Cal.App.4th 719, 64 Cal.Rptr.3d 867)
Freemont Reorganizing Corp. v. Faigin
(2011, 2d District – 198 Cal.App.4th 1153, 131 Cal.Rptr.3d 478)
FRYM v. 601 MAIN STREET LLC
(2022, 1st District – 82 Cal. App. 5th 613)

G

Gallagher v. Connell
(2004, 2d District – 123 Cal.App.4th 1260, 20 Cal.Rptr.3d 673)
Evidence that is normally inadmissible may, if no objections are raised, be considered by the court in determining whether a plaintiff challenged by an anti-SLAPP motion has demonstrated a probability of prevailing on the complaint.
Gallanis-Politis v. Medina
(2007, 2d District – 152 Cal.App.4th 600, 61 Cal.Rptr.3d 701)
Gallano v. Burlington Coat Factory of California, LLC
(2021, 1st District – 67 Cal.App.5th 953, 282 Cal.Rptr.3d 748)
Gallant v. City of Carson
(2005, 2d District – 128 Cal.App.4th 705, 27 Cal.Rptr.3d 318)
Gallant alleged she was terminated as general manager of the city after she reported misdeeds of a city attorney and that, prior to her termination, employees of the city had made public defamatory remarks about her competency as general manager. She sued the city for defamation and wrongful termination. City filed an anti-SLAPP motion to strike the complaint for defamation, which the trial court granted. The appellate court reverses on the grounds that Gallant had demonstrated a probability of prevailing on her claim.
Gallimore v. State Farm Fire & Casualty Insurance Co.
(2002, 2d District – 102 Cal.App.4th 1388, 126 Cal.Rptr.2d 560)
Gallimore sought damages from State Farm for alleged misconduct in handling his claims. The company filed an anti-SLAPP motion to strike the complaint, arguing that Gallimore’s allegations were based on reports that the company had filed with the state’s Department of Insurance. The trial court granted the motion. The appellate court reverses on the grounds that the lower court, and State Farm, had confused allegations of wrongdoing with the evidence required to prove them.
Garcia v. Rosenberg
(2019, 5th District – 42 Cal.App.5th 1050, 255 Cal.Rptr.3d 377)
The Garment Workers Center v. Superior Court
(2004, 2d District – 117 Cal.App.4th 1156, 12 Cal.Rptr.3d 506)
In this companion case to Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, the appellate court considered whether the trial court had “good cause” to lift the stay on discovery required when an anti-SLAPP motion is filed. Before hearing defendants’ special motion to strike plaintiffs’ libel claim, the trial court permitted plaintiffs to conduct discovery on the issue of actual malice. The appellate court concludes that the trial court absued its discretion in allowing discovery on actual malice before first determining whether plaintiffs had a reasonable probability of establishing the other elements of libel.
Garretson v. Post
(2007, 4th District – 156 Cal.App.4th 1508, 68 Cal.Rptr.3d 230)
Gaynor v. Bulen
(2018, 4th District – 19 Cal.App.5th 864, 228 Cal.Rptr.3d 243)
GeneThera, Inc. v. Troy & Gould Professional Corp.
(2009, 2d District – 171 Cal.App.4th 901, 90 Cal.Rptr.3d 218)
Gerbosi et al. v. Gaims, Weil, West & Epstein
(2011, 2d District – 193 Cal.App.4th 435, 122 Cal.Rptr.3d 73)
GetFugu, Inc. v. Patton Boggs
(2013, 2d District – 220 Cal.App.4th 141, 162 Cal.Rptr.3d 831)
Ghafur v. Bernstein
(2005, 1st District – 131 Cal.App.4th 1230, 32 Cal.Rptr.3d 626)
Defendants wrote a letter to the state superintendent of education concerning Ghafur and the charter schools he managed. The letter urged an investigation of religious instruction in the schools and a link to an Islamic terrorist organization. Ghafur sued defendants for defamation. The trial court granted defendants’ special motion to strike the complaint. The appellate court affirms on the grounds that Ghafur was unlikely to prevail on his complaint. Ghafur, as a public official, was required to proffer clear and convincing evidence that defendants acted with malice and he had not.
Gilbert v. Sykes
(2007, 3d District – 147 Cal.App.4th 13, 53 Cal.Rptr.3d 752)
Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Association
(2018, 4th District – 19 Cal.App.5th 399, 227 Cal.Rptr.3d 903)

Golden Gate Land Holdings LLC et al. v. Direct Action Everywhere
(2022, 1st District – 81 Cal.App.5th 82, 296 Cal.Rptr.3d 768)

Golden State Seafood, Inc. v. Schloss
(2020, 2d District – 53 Cal.App.5th 21, 266 Cal.Rptr.3d 608)
Goldstein v. Ralphs Grocery Co.
(2004, 2d District – 122 Cal.App.4th 229, 19 Cal.Rptr.3d 292)
In a class action Ralphs Grocery filed an anti-SLAPP motion, which was denied by the trial court on the grounds that the various causes of action did not arise from conduct protected by the First Amendment, and in any case class actions are exempt from the special motion to strike under the state’s anti-SLAPP statute. Defendant filed a writ petition, which was summarily denied. It then filed a notice of appeal. The court dismisses the appeal. Held: When a special motion to strike is denied on the grounds the cause of action is exempt from the anti-SLAPP statute procedures, the right of immediate appeal under the statute is inapplicable.
Gotterba v. Travolta
(2014, 2d District – 228 Cal.App.4th 35, 175 Cal.Rptr.3d 131)
The Governor Gray Davis Committee v. American Taxpayers Alliance
(2002, 1st District – 102 Cal.App.4th 449, 125 Cal.Rptr.2d 534)
The Taxpayers Alliance paid for a television ad critical of Davis. After the ad was broadcast, the Davis Committee sued for injunctive relief, seeking to compel the Alliance to comply with disclosure and reporting requirements of the Political Reform Act of 1974. The Alliance filed an anti-SLAPP motion to strike the complaint, which was denied by the trial court. The appellate court reverses on the grounds that the financing of the TV ad was activity protected by the First Amendment and the Davis Committee was not likely to succeed in its bid to compel the Alliance to comply with the Political Reform Act. The court distinguishes this case from Paul for Council v. Hanyecz.
Graffiti Protective Coatings, Inc. v. City of Pico Rivera
(2010, 2d District – 181 Cal.App.4th 1207, 104 Cal.Rptr.3d 692)
Greco v. Greco
(2016, 3d District – 2 Cal.App.5th 810, 206 Cal.Rptr.3d 501)
Greka Integrated, Inc. v. Lowrey
(2005, 2d District – 133 Cal.App.4th 1572, 35 Cal.Rptr.3d 684)
Greka Integrated, Inc. sued a former employee for breach of contract and conversion. The trial court granted defendant’s anti-SLAPP motion and the appellate court affirmed. The appellate court held that where a party expressly consents to an untimely hearing date, he has thereafter waived his right to object thereto. The court found that defendant’s statements were covered by the anti-SLAPP law because they were made to his counsel, to authorities, in deposition, and in trial testimony. The court also found that Greka presented no evidence that defendant disclosed proprietary or confidential information or that defendant’s possession of the information was wrongful.
Grenier v. Taylor
(2015, 5th District – 234 Cal.App.4th 471, 183 Cal.Rptr.3d 867)
Grewal v. Jammu
(2011, 1st District – 191 Cal.App.4th 977, 119 Cal.Rptr.3d 835)
Gruber v. Gruber
(2020, 2d District – 48 Cal.App.5th 529, 261 Cal.Rptr.3d 819)
Guarino v. County of Siskiyou
(3/1/2018, 3d District – 21 Cal.App.5th 1170, 231 Cal.Rptr.3d 95)
Guessous v. Chrome Hearts, LLC
(2009, 2d District – 179 Cal.App.4th 1177, 102 Cal.Rptr.3d 214)

H

Haight Ashbury Free Clinics, Inc. v. Happening House Ventures
(2010, 1st District – 184 Cal.App.4th 1539, 110 Cal.Rptr.3d 129)
Hailstone v. Martinez
(2009, 5th District – 169 Cal.App.4th 728, 63 Cal.Rptr.3d 798)
Hall v. Time Warner, Inc.
(2007, 2d District – 153 Cal.App.4th 1337, 87 Cal.Rptr.3d 347)
Haneline Pacific Properties, LLC v. May
(2008, 4th District – 167 Cal.App.4th 311, 83 Cal.Rptr.3d 919)
Hansen v. California Department of Corrections and Rehabilitation
(2008, 5th District – 171 Cal.4th 1537, 90 Cal. Rptr.3d 381)
Hardin v. PDX, Inc.
(2014, 1st District – 227 Cal.App.4th 159, 173 Cal.Rptr.3d 397)
Hart v. Darwish
(2017, 2d District – 12 Cal.App.5th 218, 218 Cal.Rptr.3d 757)
Hawran v. Hixson
(2012, 4th District –  209 Cal.App.4th 256, 147 Cal.Rptr.3d 88)
Healthsmart Pacific, Inc. v. Kabateck
(2016, 2d District – 7 Cal.App.5th 416, 212Cal.Rptr.3d 589)
Healy v. Tuscany Hills Landscape & Recreation Corp.
(2006, 4th District – 137 Cal.App.4th 1, 39 Cal.Rptr.3d 547)
Plaintiff homeowner sued defendant homeowners association for allegedly defamatory statements defendant’s attorneys made in a letter which it sent out to residents of Tuscany Hills regarding a legal dispute over access through plaintiff’s property. The trial court denied defendant’s anti-SLAPP motion. The appellate court reversed, finding that the letter was protected by the litigation privilege and thus plaintiff could not prevail.
Hecimovich v. Encinal School Parent Teacher Organization
(2012, District – 203 Cal.App.4th 450)
Hewlett-Packard Co. v. Oracle Corp.
(2015, 6th District – 239 Cal.App.4th 1174, 191 Cal.Rptr.3d 807)
Hicks v. Richard
(2019, 4th District – 39 Cal.App.5th 1167, 252 Cal.Rptr.3d 578)
HMS Capital, Inc. v. Lawyers Title Co.
(2004, 2d District – 118 Cal.App.4th 204, 12 Cal.Rptr.3d 786)
The parties had had a business relationship for a brief period. After the relationship was ended, Lawyers Title sued HMS to recover fees allegedly owed it. Judgment was entered by stipulation. HMS then filed a complaint for malicious prosecution against Lawyers Title. Defendant’s special (anti-SLAPP) motion to strike the complaint was denied by the trial court. The appellate court affirms the order, concluding that HMS had met its burden of establishing a probability of prevailing on it malicious prosecution lawsuit by making a prima facie showing that Lawyers Title acted with the intent to deliberately misuse the legal system for personal gain or satisfaction at HMS’s expense.
Holbrook v. City of Santa Monica
(2006, 2d District – 144 Cal.App.4th 1247, 51 Cal.Rptr.3d 181)
Hui v. Sturbaum
(2014, 1st District – 222 Cal.App.4th 1109, 166 Cal.Rptr.3d 569)
Hunter v. CBS Broadcasting, Inc.
(2013, 2d District – 221 Cal.App.4th 1510, 165 Cal.Rptr.3d 123)
Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.
(2005, 4th District – 129 Cal.App.4th 1228, 29 Cal.Rptr.3d 521)
Huntingdon Life Sciences, Inc. (HLS) and its employee Claire Macdonald sued defendant animal rights activists for trespass, harassment, and related causes of action arising from protests which occurred outside plaintiff Macdonald’s home. Defendants appealed an order denying their anti-SLAPP motion.The appellate court affirmed the denial as to some but not all causes of actions. The court held that the anti-SLAPP statute applied because the gravamen of the action against defendants was based on their exercise of First Amendment rights, and that mere allegations that defendants acted illegally did not render the anti-SLAPP statute inapplicable. As to the probability of plaintiffs’ prevailing on the merits, the court held that collateral estoppel based on the granting of a preliminary injunction was inapplicable to an anti-SLAPP motion because the issues were not identical. It granted the motion to strike the causes of action for trespass and intentional and negligent interference with prospective economic advantage because plaintiffs produced insufficient evidence. It also granted the motion to strike plaintiffs’ cause of action for negligent infliction of emotional distress because plaintiff failed to show duty. The court affirmed the denial as to the causes of action for harassment, intentional infliction of emotional distress, invasion of privacy, and Macdonald’s individual unfair competition claim because plaintiffs showed a probability of prevailing.
Hupp v. Freedom Communications, Inc.
(2013, 4th District – 221 Cal.App.4th 398, 163 Cal.Rptr.3d 919)
Hutton v. Hafif
(2007, 2d District – 150 Cal.App.4th 527, 59 Cal.Rptr.3d 109)
Hylton v. Rogozienski, Inc.
(2009, 4th District – 177 Cal.App.4th 1264, 99 Cal.Rptr.3d 805)

I-J

In re Marriage of Benner
(2019, 4th District – 36 Cal.App.5th 177, 247 Cal.Rptr.3d 906)
Industrial Waste & Debris Box Service, Inc. v. Murphy
(2016, 1st District – 4 Cal.App.5th 1135, 208 Cal.Rptr.3d 853)
Ingels v. Westwood One Broadcasting Services, Inc.
(2005, 2d District – 129 Cal.App.4th 1050, 28 Cal.Rptr.3d 933)
Inland Oversight Comm. v. County of San Bernardino
(2015, 4th District – 239 Cal.App.4th 671, 190 Cal.Rptr.3d 384)
Integrated Healthcare Holdings, Inc. v. Fitzgibbons
(2006, 4th District – 140 Cal.App.4th 515, 44 Cal.Rptr.3d 517)
Plaintiff holding company sued defendant for defamation and other causes of action arising out of an email message in which defendant questioned plaintiff’s financial condition with regard to its purchase and operation of four hospitals. Defendant filed an anti-SLAPP motion, which the trial court denied. The appellate court reversed, finding the email message concerned an issue of public interest, and plaintiff failed to show a probability of prevailing on its claims because it failed to show falsity or any waiver of defendant’s First Amendment rights.
International Union of Operating Engineers Local 39 v. Macys Inc.
(2022, 1st District – 83 Cal. App. 5th 985)Issa v. Applegate
(2019, 4th District – 31 Cal.App.5th 689, 242 Cal.Rptr.3d 809)
Jackson v. Mayweather
(2017, 2d District – 10 Cal.App.5th 1240, 217 Cal.Rptr.3d 234)
Jackson v. Yarbray
(2009, 2d District – 179 Cal.App.4th 75, 101 Cal.Rptr.3d 303)
JAMS, Inc. v. Superior Court
(2016, 4th District – 1 Cal.App.5th 984, 205 Cal.Rptr.3d 307)
Jay v. Mahaffey
(2013, 4th District – 218 Cal.App.4th 1522, 161 Cal.Rptr.3d 700)
Jeffra v. California State Lottery
(2019, 2d District – 39 Cal.App.5th 471, 251 Cal.Rptr.3d 873)
Jenni Rivera Enterprises, LLC v. Latin World Entertainment Holdings, Inc.
(2019, 2d District – 36 Cal.App.5th 766, 249 Cal.Rptr.3d 122)
Jeppson v. Ley
(2020, 2d District – 44 Cal.App.5th 845, 257 Cal.Rptr.3d 921)
Jespersen v. Zubiate-Beauchamp
(2003, 2d District – 114 Cal.App.4th 624, 7 Cal.Rptr.3d 715)
Attorneys sued for litigation-related malpractice filed an anti-SLAPP motion. The trial court denied the motion, concluding that the malpractice action was not subject to the anti-SLAPP statute. The appellate court affirms. Held: the suit does not arise out of the attorneys’ First Amendment right to petition but rather from negligent failure to protect a client’s legal rights.)
Jewett v. Capital One Bank
(2003, 2d District – 113 Cal.App.4th 805, 6 Cal.Rptr.3d 675)
Jewett filed a class action complaint against the bank, alleging that the bank’s mailed offers of lines of credit constituted deceptive and unfair business practice. The bank moved to strike the complaint under the anti-SLAPP statute, arguing that its mass solicitations were protected speech involving a public issue or an issue of public interest. The trial court granted the motion. The appellate court reverses, holding that credit card solicitations do not qualify for protection under the anti-SLAPP statute. “[T]o extend the protection of section 425.16 [of the Civil Code] to credit card solicitations would subvert the intent of the Legislature in enacting section 425.16….”
JKC3H8 v. Colton
(2013, 3d District – 221 Cal.App.4th 468, 164 Cal.Rptr.3d 450)
J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP
(2016, 2d District – 247 Cal.App.4th 87, 201 Cal.Rptr.3d 782)
Jocer Enterprises, Inc. v. Price
(2010, 2d District – 183 Cal.App.4th 559, 107 Cal.Rptr.3d 539)
Johnson v. Ralphs Grocery Co
(2012, 4th District – 204 Cal.App.4th 1097, 139 Cal.Rptr.3d 396)
Johnston v. Corrigan
(2005, 2d District – 127 Cal.App.4th 553, 25 Cal.Rptr.3d 657)
The trial court denied a motion for attorney fees under Code of Civil Procedure section 425.16. Subsequently it granted a motion for reconsideration and then awarded attorney fees. At issue on appeal is whether the trial court had jurisdiction to reconsider its initial order. The appellate court concludes that it did.
JSJ Limited Partnership v. Mehrban
(2012, 4th District – 205 Cal.App.4th 1512)

K

Kajima Engineering & Construction, Inc. v. City of Los Angeles
(2002, 2d District – 95 Cal.App.4th 921, 116 Cal.Rptr.2d 187)
Kajima sued the City for payment for work and the City cross-complained of breach of contract. Kajima moved to strike the cross-complaint as a SLAPP; the trial court denied the motion. The appellate court affirms the denial. The court concludes that the allegations in the City’s cross-complaint arose from Kajima’s bidding and contracting practices, not from “acts in furtherance of its right of petition or free speech.” The court states: “We publish this opinion … to emphasize that a cross-complaint or independent lawsuit filed in response to, or in retaliation for, threatened or actual litigation is not subject to the anti-SLAPP statute simply because it may be viewed as an oppressive litigation tactic. No lawsuit is properly subject to a special motion to strike under section 425.16 unless its allegations arise from acts in furtherance of the right of petition or free speech.”
Karnazes v. Ares
(2016, 2d District – 244 Cal.App.4th 344, 198 Cal.Rptr.3d 155)
(modified 2-26-16)
Kashian v. Harriman
(2002, 5th District -98 Cal.App.4th 892, 120 Cal.Rptr.2d 576)
Kashian was chairman of the board of trustees of a nonprofit community hospital, which planned to build a for-profit hospital in partnership with several physicians. Harriman, a public-interest lawyer, wrote a letter to the state attorney general asking for an investigation of the hospital’s tax-exempt status, alleging that Kashian had a pecuniary interest in certain of the hospital’s transactions. Kashian sued Harriman for defamation and unfair business practices; the latter complaint was based on the allegation that Harriman was engaged in the practice of litigation designed to “extort settlements” that benefitted Harriman. The trial court granted Harriman’s special motion to strike the complaint under the anti-SLAPP statute. The appellate court affirms. Its lengthy opinion is devoted in large part to a discussion of whether the immunity from liability under Civil Code section 47 (the “litigation privilege”) applies to allegations of violations of the state’s “unfair business practice” statute (Business & Professions Code section 17200).

Keading v. Keading
(2021,1st District – 60 Cal. App. 5th 1115, 275 Cal.Rptr.3d 338)

Kemps v. Beshwate
(2009, 5th District – 180 Cal.App.4th 1012, 103 Cal.Rptr.3d 480)
Kenne v. Stennis
(2014, 2d District – 230 Cal.App.4th 953, 179 Cal.Rptr.3d 198)
Kettler v. Gould
(2018, 2d District – 22 Cal.App.5th 593, 231 Cal.Rptr.3d 580)
Key v. Tyler
(2019, 2d District – 34 Cal.App.5th 505, 246 Cal.Rptr.3d 224)
Kieu Hoang v. Phong Minh Tran
(2021, 2d District – 60 Cal.App.5th 513, 274 Cal.Rptr.3d 567)
Kim v. R Consulting & Sales, Inc.
(2021, ourth District – 67 Cal.App.5th 263, 281 Cal.Rptr.3d 918)
Kinsella v. Kinsella
(2020, 4th District – 45 Cal.App.5th 442, 258 Cal.Rptr.3d 725)
Km v. Access Insurance Company
(2017, 4th District – 17 Cal.App.5th 595, 225 Cal.Rptr.3d 711)
Kleveland v. Siegel & Wolensky LLP
(2013, 4th District – 215 Cal.App.4th 534, 155 Cal.Rptr.3d 599)
Kolar v. Donahue, McIntosh & Hammerton
(2006, 4th District – 145 Cal.App.4th 1532, 52 Cal.Rptr.3d 712)
Kreeger v. Wanland
(2006, 3d District – 146 Cal.App.4th 1540, 53 Cal.Rptr.3d 779)
Kronemyer v. Internet Movie Data Base, Inc.
(2007, 2d District – 150 Cal.App.4th 941, 59 Cal.Rptr.3d 48)
Kunysz v. Sandler
(2007, 4th District – 146 Cal.App.4th 1540, 53 Cal.Rptr.3d 779)
Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP
(2007, 2d District – 146 Cal.App.4th 841, 52 Cal.Rptr.3d 256)
Kurz v. Syrus Systems, LLC
(2013, 6th District – 221 Cal.App.4th 748, 164 Cal.Rptr.3d 554)
Kyle v. Carmon
(1999, 3d District – 71 Cal.App.4th 901, 84 Cal.Rptr.2d 303)
Plaintiff school superintendent dismissed his complaint with prejudice against our client, Shelly Carmon, after we filed an anti-SLAPP motion but before the court had ruled on the motion. The trial court issued an order granting the motion to strike and awarding attorneys fees and costs. The Court of appeal held that the trial court’s adjudication of the merits of the motion supported affirmance of the award of attorney’s fees and costs.

L

L.A. Taxi Coop. v. Indep. Taxi Owners Ass’n of L.A.
(2015, 2d District – 239 Cal.App.4th 918, 191 Cal.Rptr.3d 579)
L.G. v. M.B.
(2018, 2d District – 25 Cal.App.5th 211, 235 Cal.Rptr.3d 494)
La Jolla Group II v. Bruce
(2012, 5th District – 211 Cal.App.4th 461, 149 Cal.Rptr.3d 716)
Lafayette Morehouse, Inc. v. The Chronicle Publishing Co. (“Morehouse I”)
(1995, 1st District – 37 Cal.App.4th 855, 44 Cal.Rptr.2d 46)
A university offering a Ph.D. in “sensuality” sued a newspaper for libel for a series of articles on the university in relation to hearings by the county board of supervisors on whether the university was violating local health, land use, and other government regulations, and a suit by the county to enjoin alleged violations. The lower court’s granting of a special motion to strike the complaint is affirmed.
Lafayette Morehouse, Inc. v. The Chronicle Publishing Co. (“Morehouse II”)
(1995, 1st District – 39 Cal.App.4th 1379, 46 Cal.Rptr.2d 542)
A defendant who prevails on a special motion to strike a complaint is entitled to recover attorney fees and costs only for work related to the motion, not for work unrelated to the motion. [Note: This opinion was issued before the 1997 amendment of Code of Civil Procedure section 425.16, requiring that the anti-SLAPP statute be construed broadly, and before the Supreme Court decision in Briggs v. Eden Council for Hope and Opportunity, which held that courts, “wherever possible, should interpret the First Amendment in a manner favorable to the exercise of freedom of speech, not to its curtailment.”]
Laker v. Board of Trustees of California State University
(2019, 6th District – 32 Cal.App.5th 745, 244 Cal.Rptr.3d 238)
Lam v. Ngo
(2001, 4th District – 91 Cal.App.4th 832, 111 Cal.Rptr.2d 582)
Vietnamese-Americans demonstrated against the display of North Vietnam’s flag in a store window. One group focused attention on a city councilman, Lam, who was perceived to be indifferent. Lam owned a restaurant, where demonstrators gathered. After the restaurant’s landlord, Ngo, allowed the demonstrators to gather in the parking lot, restaurant and patron property was intentionally damaged. Lam sued Ngo and 1,500 “Doe” demonstrators for damages and obtained a TRO, later a preliminary injunction, against the demonstrators. Ngo filed a motion to strike the complaint against him pursuant to the anti-SLAPP statute. The trial court denied the motion on the grounds that Ngo had already lost in the contest over the preliminary injunction and had not presented anything “new.” The appellate court reverses. Held: the granting of the preliminary injunction did not have the effect of res judicata with respect to the anti-SLAPP motion to strike. Moreover, Lam could not be held personally liable for acts committed by others absent evidence that he authorized, directed, or ratified specific tortious acts, incited lawless action, or gave specific instructions to carry out violent acts or threats, and no such evidence was presented to counter the anti-SLAPP motion. Nevertheless, violent acts associated with the protest are not protected by the First Amendment and do support tort liability, and thus the case is remanded to allow the plaintiff to substitute named individuals who can be shown to have engaged in tortious acts.
Lanz v. Goldstone
(2015, 1st District – 243 Cal.App.4th 441, 197 Cal.Rptr.3d 227)
Law Offices of Andrew L. Ellis v. Yang
(2009, 2d District – 178 Cal.App,4th 869, 100 Cal.Rptr.3d 771)
Lee v. Fick
(2005, 2d District -135 Cal.App.4th 89, 37 Cal.Rptr.3d 375)
Plaintiff high school athletic coach filed a lawsuit for libel, slander, and other causes of action for statements defendant parents made in a letter to the school board, oral statements defendants made to other parents, and oral statements made to the school board while requesting that it reconsider its decision to retain the coach. The trial court granted defendants anti-SLAPP motion for the libel cause of action, finding that the letter was written to prompt official action and was privileged under Civil Code section 47(b). However it denied the motion to strike the remaining causes of action.
The appellate court affirmed the granting of the motion to strike the libel claim, but reversed the trial court’s denial as to the other claims, holding that defendants’ oral comments to school officials, interested parties (other parents), and the school board were all privileged.
Lee v. Kim
(2019, 2d District – 41 Cal.App.5th 705, 254 Cal.Rptr.3d 546)
Lee v. Silveira
(2016, 4th District – 6 Cal.App.5th 527, 211 Cal.Rptr.3d 705)
Leegin Creative Leather Products, Inc. v. Diaz
(2005, 2d District – 131 Cal.App.4th 1517, 33 Cal.Rptr.3d 139)
Leegin brought an action for fraud against Diaz, an employee, alleging that Diaz had knowingly filed a fraudulent worker’s compensation claim. The trial court granted Diaz’s special motion to strike the complaint. The appellate court affirms on the grounds that Leegin is not likely to prevail on its claim.
Lefebvre v. Lefebvre
(2011, 2d District – 199 Cal.App.4th 696, 131 Cal.Rptr.3d 171)
Lennar Homes of California, Inc. v. Stephens
(2015, 4th District – 232 Cal.App.4th 673, 181 Cal.Rptr.3d 638)
Levy v. City of Santa Monica
(2004, 2d District – 114 Cal.App.4th 1252, 8 Cal.Rptr.3d 507)
After the Levys constructed a backyard playhouse, a neighbor complained to her city councillor, who inquired of planning department officials whether the construction conformed to regulations. Eventually a city employee notified the Levys that the playhouse was an unapproved structure and had to be removed or modified. The Levys sued the city and the councillor for violation of a city ordinance prohibiting councillors from giving orders to any subordinate of the city manager. Defendants filed an anti-SLAPP motion, which the trial court denied on the grounds that the anti-SLAPP statute did not apply. The appellate court reverses, holding that the city councillor’s communication to the planning department was advocacy protected by the First Amendment, not an order, and therefore covered by the anti-SLAPP statute.
Li v. Jin
(2022, 6th District – 83 Cal.App.5th 481, 298 Cal. Rptr. 3d 717)
Lieberman v. KCOP Television, Inc.
(2003, 2d District – 110 Cal.App.4th 156, 1 Cal.Rptr.3d 536)
KCOP secretly recorded private consultations between Lieberman, a physician, and reporters posing as patients. The recordings were broadcast by KCOP to support allegations that Lieberman was improperly prescribing controlled drugs. Lieberman sued KCOP for violation of Penal Code section 632, which prohibits electronic eavesdropping on a confidential communication without consent of all parties and provides for monetary damages. The trial court denied KCOP’s anti-SLAPP motion to strike the complaint, finding that Lieberman had presented sufficient evidence to demonstrate a violation of section 632. The trial court affirms. The court concludes that the secret recording was an act in furtherance of free speech inasmuch as the recording was incorporated into a news report, and therefore plaintiff’s cause of action is subject to the anti-SLAPP statute. Nevertheless, plaintiff has established a probability of prevailing on his complaint since (1) a section 632 violation occurs the moment a confidential communication is secretly recorded, regardless of whether it is subsequently disclosed, and (2) there is no affirmative defense in the fact that the secret recording was part of legitimate newsgathering.
Lien v. Lucky United Properties Investment, Inc.
(2008, 1st District – 163 Cal.App.4th 620, 77 Cal.Rptr.3d 707)
Lin v. City of Pleasanton
(2009, 1st District – 175 Cal.App.4th 1143, 96 Cal.Rptr.3d 730)
Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc.
(1996, 1st District – 50 Cal.App.4th 1633, 58 Cal.Rptr.2d 613)
Note: This opinion was disapproved by the California Supreme Court in Briggs v. Eden Council for Hope and Opportunity.
Securities broker-dealers sought to enjoin the “unauthorized practice of law” by companies that represent individual investors in arbitration proceedings with brokers. The trial court granted defendant’s anti-SLAPP motion to strike the complaint. The appellate court reverses on the grounds that disputes over individual investment losses are not matters of public concern and therefore the brokers’ complaint was not subject to the anti-SLAPP statue.
Litinsky v. Kaplan
(2019, 2d District – 40 Cal.App.5th 970, 253 Cal.Rptr.3d 62)
Liu v. Moore
(1999, 2d District – 69 Cal.App.4th 745, 81 Cal.Rptr.2d 807)
A SLAPP plaintiff cannot avoid liability for defendant’s attorney’s fees by dismissing its complaint prior to the hearing on defendant’s motion to strike the complaint. The court must still decide the merits of the motion to strike in order to determine whether the defendant is the prevailing party and therefore entitled to fees.
Lockton v. O’Rourke
(2010, 2d District – 184 Cal.App.4th 1051, 109 Cal.Rptr.3d 392)
Lockwood v. Sheppard, Mullin, Richter, & Hampton
(2009, 2d District – 173 Cal.App.4th 675, 93 Cal.Rptr.3d 220)
Loanvest I, LLC v. Utrecht
(2015, 1st District – 235 Cal.App.4th 496, 185 Cal.Rptr.3d 385)
Long Beach Unified School Dist. v. Margaret Williams, LLC
(2019, 2d District – 43 Cal.App.5th 87, 256 Cal.Rptr.3d 354)
Lucky United Properties Investment, Inc. v. Lee
(2013, 1st District – 213 Cal.App.4th 635, 152 Cal.Rptr.3d 641)
Ludwig v. Superior Court
(1995, 4th District -37 Cal.App.4th 8, 43 Cal.Rptr.2d 350)
City, hoping to develop a shopping mall, sued a competing developer for interference with contractual relations and prospective economic advantage, and unfair competition, alleging that the developer encouraged citizens to speak out at public meetings and file law suits against the city’s proposed mall. The trial court’s denial of a special motion to strike the complaint is reversed.
Lunada Biomedical v. Nunez
(2015, 2d District – 230 Cal.App.4th 459, 178 Cal.Rptr.3d 784)

M

M.F. Farming Co. v. Couch Distributing Co., Inc.
(2012, 6th District – 207 Cal.App.4th 180, 143 Cal.Rptr.3d 160)
M.G., a minor, v. Time Warner, Inc.
(2001, 4th District – 89 Cal.App.4th 623, 107 Cal.Rptr.2d 504)
An article in Sports Illustrated about adult coaches who sexually molest youths included a photograph of a Little League team, five players of which were molested by the manager. M.G. (and others) appeared in the photo and sued for invasion of privacy. The trial court’s denial of a special motion to strike is affirmed. The appellate court agreed that the anti-SLAPP statute applied to the publication of the story. Time Warner argued that the photo was not private and its publication met the test of newsworthiness. Plaintiffs argued the photo was private and not newsworthy. The court concluded that plaintiffs had demonstrated the likelihood of prevailing on the merits of their claim, thus fulfilling their burden under the anti-SLAPP statute.
Macias v. Hartwell
(1997, 2d District – 55 Cal.App.4th 669, 64 Cal.Rptr.2d 222)
An unsuccessful candidate for a labor union office sued the successful candidate, alleging that defendant’s campaign flyers were defamatory. The trial court’s granting of a special motion to strike the complaint is affirmed. The “anti-SLAPP law applies to defamation actions arising out of statements made in a union election.”
Major v. Silna
(2005, 2d District – 135 Cal.App.4th 1485, 36 Cal.Rptr.3d 875)
In connection with an election, defendant Silna mailed a letter to a number of Malibu residents supporting certain candidates. Plaintiff Major filed a complaint for injunctive relief, alleging violations of the Malibu Municipal Code. Silna filed an anti-SLAPP motion which the trial court denied, finding that Major’s action fell within the Code of Civil Procedure section 425.17(b) exemption to the anti-SLAPP law.
The appellate court reversed, concluding that section 425.17 did not apply because subdivision (d)(2) excepts from this exemption “[a]ny action against a person … based upon the … dissemination … or similar promotion of any … political … work.” The court further held that Major could not show a probability of prevailing on the merits because he lacked standing to seek injunctive relief.
Maleti v. Wickers
(2022, 6th District – 82 Cal.App. 5th 181)
Mallard v. Progressive Choice Ins. Co.
(2010, 4th District – 188 Cal.App.4th 531, 115 Cal.Rptr.3d 487)
Malin v. Singer
(2013, 2d District – 217 Cal.App.4th 1283, 159 Cal.Rptr.3d 292)
Manhattan Loft, LLC v. Mercury Liquors, Inc.
(2009, 2d District – 173 Cal.App.4th 1040, 93 Cal.Rptr.3d 457)
Manlin v. Milner
(2022, 2d District – 82 Cal. App. 5th 613)
Mann v. Quality Old Time Service, Inc. (“Mann I”)
(2004, 4th District – 120 Cal.App.4th 90, 15 Cal.Rptr.3d 215)
The court holds that where a defendant has shown that a substantial part of a cause of action constitutes speech or petitioning activity protected by the anti-SLAPP statute, the plaintiff need only show a probability of prevailing on any part of its claim. Once the plaintiff makes this showing, the court need not determine whether the plaintiff can substantiate all theories for that cause of action.
Mann v. Quality Old Time Service, Inc. (“Mann II”)
(2006, 4th District – 139 Cal.App.4th 328, 42 Cal.Rptr.3d 607)
Plaintiff challenged an attorney fees award, arguing that defendants were not prevailing parties within the meaning of Code of Civil Procedure section 425.16 (c) because they were unsuccessful in striking three of the four challenged causes of action. The appellate court held that “a party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion,” and concluded that the trial court did not abuse its discretion in determining defendants were prevailing parties on the anti-SLAPP motion. However, it found that the lower court erred in failing to reduce the fees to reflect that defendants were only partially successful on the motion and ordered the fees reduced by 50%.
Maranatha Corrections, LLC v. Department of Corrections and Rehabilitation
(2008, 3d District – 158 Cal.App.4th 1075, 70 Cal.Rptr.3d 614)
Marijanovic v. Gray, York & Duffy
(2006, 2d District – 137 Cal.App.4th 1262, 40 Cal.Rptr.3d 867)
Plaintiff brought a malicious prosecution action against defendant and its counsel. Each defendant filed anti-SLAPP motions, which were denied on the basis that the plaintiff had established a prima facie case of malicious prosecution. The appellate court reversed, finding that the plaintiff failed to establish probable cause.
Marlin v. Aimco Venezia, LLC
(2007, 2d District – 154 Cal.App.4th 154, 64 Cal.Rptr.3d 488)
Marshall v. Webster
(2020, 3d District – 54 Cal.App.5th 275, 268 Cal.Rptr.3d 530)
Martinez v. Metabolife International, Inc.
(2003, 4th District – 113 Cal.App.4th 181, 6 Cal.Rptr.3d 494)
Martinez sued Metabolife for personal injury, alleging that the injury was caused by ingestion one of Metabolife’s products. Metabolife filed a special motion to strike the complaint, arguing that the complaint targeted commercial speech. The trial court denied the motion and the appellate court affirms. This case was decided shortly before Code of Civil Procedure section 425.17 became effective (Jan. 1, 2004). Section 425.17 states that the anti-SLAPP motion cannot be applied to any complaint against a person primarily engaged in the business of selling or leasing goods or services where the cause of action arises from advertising or other commercial speech. (See also Brenton v. Metabolife International, Inc., 4th District Court of Appeal (2004); Scott v. Metabolife International, Inc., 3d District Court of Appeal (2004).)
Martin v. Inland Empire Utilities Agency
(2011, 4th District – 198 Cal. App.4th 611, 130 Cal.Rptr.3d 410)
Matson v. Dvorak
(1995, 3d District – 40 Cal.App.4th 539, 46 Cal.Rptr.2d 880)
An unsuccessful candidate for a local legislative office sued a rival candidate and several contributors to an organization that published a flyer accusing him of having “hundreds of dollars of unpaid fines and citations” issued by the police, alleging libel and invasion of privacy. The trial court’s granting of defendant’s special motion to strike the complaint is affirmed.
Mattel, Inc. v. Luce, Forward, Hamilton & Scripps
(2002, 2d District – 99 Cal.App.4th 1179, 121 Cal.Rptr.2d 794)
Defendant law firm prosecuted a case for copyright infringement against Mattel, maker of the Barbie doll. A federal district court found for Mattel, and the Ninth Circuit Court of Appeals affirmed the finding of the trial court that the case for copyright infringement was without factual foundation. Mattel then sued the law firm in state court for malicious prosecution. The trial court denied a special motion to strike the complaint under the anti-SLAPP statute. The court of appeal rules that an action for malicious prosecution qualifies for treatment under the anti-SLAPP statute and affirms the trial court’s judgment that the plaintiff had demonstrated a probability of prevailing on its action.
Maughan v. Google Technology Inc.
(2006, 2d District – 143 Cal.App.2d Dist 1284, 49 Cal.Rptr.3d 861)
McGarry v. University of San Diego
(2007, 4th District – 154 Cal.App.4th 97, 64 Cal.Rptr.3d 467)
McNair v. Superior Court
(2016, 2d District – 6 Cal.App.5th 1227, 211 Cal Rptr 3d 919)
Medical Marijuana, Inc. v. ProjectCBD.com
(2016, 4th District – 6 Cal.App.5th 602, 212 Cal.Rptr.3d 45)
(modified 3-20-2020 – 46 Cal.App.5th 869, 260 Cal.Rptr.3d 237)
Medley Capital Corporation v. Security National Guaranty, Inc.
(2017, 1st District – 17 Cal.App.5th 33, 225 Cal.Rptr.3d 736
Melbostad v. Fisher
(2008, 1st District – 165 Cal.App.4th 987, 81 Cal.Rptr.3d 354)
Mendoza v. ADP Screening and Selection Services, Inc.
(2010, 2d District – 182 Cal.App.4th 1644, 107 Cal.Rptr.3d 294)
Mendoza v. Hamzeh
(2013, 2d District – 215 Cal.App.4th 799, 155 Cal.Rptr.3d 832)
Mendoza v. Wichmann
(2011, 3d District – 194 Cal.App.4th 1430, 123 Cal.Rptr.3d 823)
Metcalf v. U-Haul International, Inc.
(2004, 4th District – 118 Cal.App.4th 1261, 13 Cal.Rptr.3d 686)
Metcalf sued U-Haul for unfair competition, alleging that it consistently overstated the size of its rental trailers in advertisements. U-Haul filed an anti-SLAPP motion, arguing that the complaint arose from its constitutionally protected right to commercial speech. The trial court denied the motion. The appellate court affirms. At issue on appeal is Code of Civil Procedure section 425.17, which prevents defendants sued for false advertising from using the anti-SLAPP motion and which became effective after the complaint in this case was filed. The court rejects appellant’s contentions that section 425.17 is unconstitutionally discriminatory and that in any event it cannot apply to a case in progress.
Midland Pacific Building Corp. v. King
(2007, 2d District – 153 Cal.App.4th 499, 63 Cal.Rptr.3d 129)
Miller v. City of Los Angeles
(2008, 2d District – 169 Cal.App.4th 1373, 87 Cal.Rptr.3d 510)
Miller v. Filter
(2007, 3d District – 150 Cal.App.4th 652, 58 Cal.Rptr.3d 671)
Miller v. Zurich American Ins. Co.
(2019, 1st District – 41 Cal.App.5th 247, 254 Cal.Rptr.3d 124)
Mireskandari v. Gallagher
(2021, 4th District – 59 Cal.App.5th 346, 273 Cal.Rptr.3d 371)
Mission Beverage Company v. Pabst Brewing Company, LLC
(2017, 2d District – 15 Cal.App.5th 686, 223 Cal.Rptr.3d 547)
Mission Oaks Ranch, Ltd. v. County of Santa Barbara
(1998, 2d District – 65 Cal.App.4th 713, 77 Cal.Rptr.2d 1)
Note:  This opinion was disapproved by the California Supreme Court in Briggs v. Eden Council for Hope and Opportunity.
Mission Oaks applied to the county for a tract map for property development and agreed to pay for an environmental impact report (EIR). The draft EIR found that Mission Oaks’ project would have numerous adverse and unmitigable consequences. Mission Oaks sued the county for breach of contract, alleging that it was a third-party beneficiary of the contract between the county and the consultant that prepared the EIR. The trial court’s granting of a special motion to strike the complaint is upheld. “Here Mission Oaks is simply a disgruntled developer who does not like the findings prepared by the independent environmental consultants for the County and the public. Mission Oaks seeks to stifle the EIR prepared for the County and the public. [The] SLAPP [statute] is designed to preclude such attempts to silence those who speak out on matters of public interest before legislative bodies.” The court distinguished this case from Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers. 
Mission Springs Water Dist. v. Verjil
(2013, 4th District – 218 Cal.App.4th 892, 160 Cal.Rptr.3d 524)
Mitchell v. Twin Galaxies, LLC
(2021, 2nd District – 70 Cal.App.5th 207, 285 Cal.Rptr.3d 211)
MMM Holdings, Inc. v. Reich
(3/12/2018, 4th District – 21 Cal.App.5th 167, 230 Cal.Rptr.3d 198)
Mobile Medical Services, etc. v. Rajaram
(2015, 4th District – 241 Cal.App.4th 164, 193 Cal.Rptr.3d 568)
Mongols Nation Motorcycle Club, Inc. v. City of Lancaster
(2012, 2d District –  208 Cal.App.4th 124, 145 Cal.Rptr.3d 122)
Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees Local 483
(1999, 6th District – 69 Cal.App.4th 1057, 82 Cal.Rptr.2d 10)
Hotel sued union alleging defamatory statements by a union official in a news report of a labor dispute at the hotel. The trial court granted the union’s special motion to strike the complaint. The appellate court affirms, holding that plaintiff was unable to establish a prima facie case of slander in its pleadings.                         
Moore v. Kaufman
(2010, 2d District – 189 Cal.App.4th 604, 117 Cal.Rptr.3d 196)
Moraga-Orinda Fire Protection District v. Weir
(2004, 1st District – 115 Cal.App.4th 477, 10 Cal.Rptr.3d 13)
After a homeowners association submitted a rebuttal argument against a tax increase for a voter information pamphlet, the fire district sought a court order modifying or eliminating certain statements in the association’s argument. The association filed an anti-SLAPP motion. The trial court denied the fire district’s petition and then denied the association’s request for attorney fees and costs under the anti-SLAPP statute on the grounds that, since the mandamus proceeding had been resolved on the merits, the anti-SLAPP motion was moot. On appeal the fire district contends that challenges to statements in voter pamphlets are not subject to the anti-SLAPP statute and that the statute must be “harmonized” with provisions in the Elections Code authorizing legal challenges to false or inaccurate voter pamphlets. The appellate court rules that the anti-SLAPP statute is not inconsistent with the Elections Code, that it does apply in this case, and the association is entitled to fees and costs.
Morin v. Rosenthal
(2004, 2d District – 122 Cal.App.4th 673, 19 Cal.Rptr.3d 149)
Moriarty v. Laramar Management Corp.
(2014, 1st District – 224 Cal.App.4th 125, 168 Cal.Rptr.3d 461)
The trial court denied defendants’ anti-SLAPP motion on the grounds that it was untimely. Defendants had argued that they could not have filed the motion any sooner because they had a motion pending to transfer the case to another district of the superior court. The appellate court affirms.
Morris Cerullo World Evangelism v. Newport Harbor Offices & Marina, LLC
(2021, 4th District – 67 Cal.App.5th 1149, 283 Cal.Rptr.3d 164)
Morrow v. Los Angeles Unified School District
(2007, 2d District – 149 Cal.App.4th 1424, 57 Cal.Rptr.3d 885)
Moss Bros. Toy, Inc. v. Ruiz
(2018, 4th District – 27 Cal.App.5th 424, 238 Cal.Rptr.3d 292)
Muddy Waters, LLC v. Superior Court of San Bernardino County
(2021, 4th District – 62 Cal.App.5th 905, 277 Cal.Rptr.3d 204)
Mundy v. Lenc
(2012, 2d District – 203 Cal.App.4th 1401, 138 Cal.Rptr.3d 464)
Murphy v. Twitter Inc.
(2021, 1st District – 60 Cal.App.5th 12, 274 Cal.Rptr.3d 360)
Murray v. Tran
(2020, 4th District – 55 Cal.App.5th 10, 269 Cal.Rptr.3d 231)
Musero v. Creative Artists Agency, LLC
(2021, 2nd District – 72 Cal.App.5th 802, 287 Cal.Rptr.3d 625)

N-O

Nagel v. Twin Laboratories, Inc.
(2003, 4th District – 109 Cal.App.4th 39, 134 Cal.Rptr.2d 420)
This class action against Twin Laboratories, which manufactures and markets nutritional and dietary supplements, alleged violation of various statutes because of false advertising of product ingredients. Twin Labs moved to strike the complaint pursuant to the anti-SLAPP statute, arguing that its advertising was commercial speech protected by the First Amendment. The trial court agreed that defendant’s labeling and advertising were protected commercial speech but also concluded that plaintiffs had established a probability of prevailing on their claims, therefore defeating the motion. The appellate court affirms the denial but on the grounds that a list of product ingredients is not commercial speech protected by the anti-SLAPP statute.
Nam v. Regents of University of California
(2016, 3d District – 1 Cal.App.5th 1176, 205 Cal.Rptr.3d 687)
Navarro v. IHOP Properties, Inc.
(2005, 4th District – 134 Cal.App.4th 834, 36 Cal.Rptr.3d 385)
Plaintiff sued IHOP for fraud alleging that IHOP never intended to keep its promise made in a stipulated judgment to consider offers to purchase her franchise “without undue delay.”; IHOP appealed the trial court’s denial of its anti-SLAPP motion. The appellate court reversed, finding that 1) the Code of Civil Procedure section 425.17 exemption did not apply because any promises or statements made by defendant were to induce settlement of a lawsuit and were not made during a commercial transaction; 2) the complaint arose from defendant’s statements in, or in connection with a judicial proceeding; and 3) plaintiff did not prove a probability of prevailing on her claim because the statements IHOP made during a stipulated judgment were protected by the litigation privilege and she failed to show causation.
Navellier v. Sletten
(2003, 1st District – 106 Cal.App.4th 763, 131 Cal.Rptr.2d 201)
Plaintiffs brought actions for fraud and breach of contract. Defendant moved to strike the complaint under the anti-SLAPP statute, the motion was denied, and the appellate court affirmed on the grounds that the causes of action — negotiation and execution of a release agreement and pursuit of counterclaims in litigation — were not protected by the anti-SLAPP statute (unpublished opinion). The Supreme Court reversed, holding that the causes of action were protected by the anti-SLAPP statute, and remanded the case to the court of appeal with instructions to reconsider its decision in light of the Supreme Court’s opinion. (See Navellier v. Sletten, California Supreme Court.) Specifically, the court was directed to consider whether plaintiff had established a probability of prevailing on its complaint. In this opinion the court holds that the plaintiffs have not established a probability of prevailing on their claims and thus reverses the trial court’s denial of the anti-SLAPP motion.
Nelson v. Tucker Ellis, LLP
(2020, 1st District – 48 Cal.App.5th 827, 262 Cal.Rptr.3d 250)
Nesson v. Northern Inyo County Local Hospital Dist.
(2012, 4th District – 204 Cal.App.4th 65, 138 Cal.Rptr.3d 446)

Neurelis, Inc. v. Aquestive Therapeutics, Inc.
(2021, 4th District – 71 Cal.App.5th 769, 286 Cal.Rptr.3d 631)

Neville v. Chudacoff
(2008, 2d District – 160 Cal.App.4th 1255, 73 Cal.Rptr.3d 383)
Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism
(2016, 4th District – 6 Cal.App.5th 1207, 212 Cal.Rptr.3d 216) (ordered published 12/26/16)
(re-appealed, 2018, 4th District – 23 Cal.App.5th 28, 232 Cal.Rptr.3d 540)
Nguyen-Lam v. Cuoung Cao
(2009, 4th District – 171 Cal.App.4th 858, 90 Cal.Rptr.3d 205)
Northern California Carpenters Regional Council v. Warmington Hercules Associates
(2004, 1st District – 124 Cal.App.4th 296, 20 Cal.Rptr.3d 918)
A carpenters’ union and individuals sued building contractors for failure to pay them prevailing wages under city’s Redevelopment Agency’s policy, alleging unfair business practices. Defendants filed an anti-SLAPP motion, arguing that the lawsuit was retaliation for their petition to a state agency for a determination that they were not required to pay prevailing wages.  The motion was denied by the court on the grounds that the cause of action did not arise from filing a petition with the state but from failure to pay prevailing wages.  On appeal plaintiffs argued that the court was required by Code of Civil Procedure section 425.17 to affirm the trial court’s denial.  Section 425.17 was intended to curb abuse of the anti-SLAPP statute by providing that the anti-SLAPP statute does not apply to “any action brought solely in the public interest or on behalf of the general public.”  The appellate court affirms the trial court’s ruling, holding that the plaintiffs’ complaint meets the conditions of section 425.17.  (See also Physicians Committee for Responsible Medicine v. Tyson Foods, Inc..)
Novartis Vaccines and Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.
(2006, 1st District – 143 Cal.App.1st 1284, 49 Cal.Rptr.3d 861)
Nunez v. Pennisi
(2015, 6th District – 241 Cal.App.4th 861, 193 Cal.Rptr.3d 912)
Nygård, Inc. v. Uusi-Kerttula(2008, 2d District – 159 Cal.App.4th 1027, 72 Cal.Rptr.3d 210)
O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC
(2019, 1st District – 42 Cal.App.5th 546, 255 Cal.Rptr.3d 596)
Oakland Bulk and Oversized Terminal, LLC v. City of Oakland
(2020, 1st District – 54 Cal.App.5th 738, 269 Cal.Rptr.3d 170)
Ojjeh v. Brown
(2019, 1st District – 43 Cal.App.5th 1027, 257 Cal.Rptr.3d 146)
Okorie v. Los Angeles Unified School District
(2017, 2d District – 14 Cal.App.5th 574, 222 Cal.Rptr.3d 475)
Olaes v. Nationwide Mutual Insurance Co.
(2006, 3d District – 135 Cal.App.4th 1501, 38 Cal.Rptr.3d 467)
Plaintiff filed a complaint for damages against his former employer, alleging he had been defamed during its investigation of sexual harassment complaints against him. The trial court denied defendant’s anti-SLAPP motion. The appellate court affirmed, holding that the anti-SLAPP law did not apply because a sexual harassment investigation within a private company does not constitute an official proceeding, and an investigation by a private employer concerning a small group of people does not involve an issue of public interest.
Old Republic Construction Program Group v. The Boccardo Law Firm, Inc.
(2014, 6th District – 230 Cal.App.4th 859, 179 Cal.Rptr.3d 129)
Olivares v. Pineda
(2019, 1st District – 40 Cal.App.5th 343, 253 Cal.Rptr.3d 213)
Olive Properties, L.P. v. Coolwaters Enterprises, Inc.
(2015, 2d District – 241 Cal.App.4th 1169, 194 Cal.Rptr.3d 524)
Olsen v. Harbison
(2005, 3d District – 134 Cal.App.4th 278, 35 Cal.Rptr.3d 684)
Co-counsel sued each other in a dispute over fee sharing. Nine months after a second amended complaint was filed, defendant filed an anti-SLAPP motion. The trial court found the anti-SLAPP motion was untimely because it was filed more than 60 days after service of the complaint. Harbison appealed. The appellate court dismissed the appeal as frivolous and sanctioned Harbison.
Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP
(2017, 2d District – 18 Cal.App.5th 95, 226 Cal.Rptr.3d 246)
Overhill Farms, Inc. v. Nativo Lopez
(2010, 4th District – 190 Cal.App.4th 1248, 190 Cal.Rptr.3d 127)
Overstock.com, Inc. v. Gradient Analytics, Inc.
(2007, 1st District – 151 Cal.App.4th 688, 61 Cal.Rptr.3d 29)
Oviedo v. Windsor Twelve Props, LLC
(2012, 4th District – 212 Cal.App.4th 97, 151 Cal.Rptr.3d 117)
(Opinion filed on 11/19/12; modified on 11/2712; and certified for publication on 12/18/12)

P

Padres L.P. v. Henderson
(2004, 4th District – 114 Cal.App.4th 495, 6 Cal.Rptr.3d 584)
The owners of the Padres baseball club filed claims for malicious prosecution against attorney Henderson arising from a series of lawsuits Henderson had filed challenging actions taken by the City of San Diego, in collaboration with the Padres, to develop a new baseball park. Henderson filed an anti-SLAPP motion to strike all claims. The trial court dismissed claims based on one of Henderson’s lawsuits (plaintiffs had conceded the claim was time-barred) and denied the special motion to strike the claims based on other lawsuits filed by Henderson. The appellate court reverses in part. The court holds that no absolute privilege applies to Henderson’s filing of the lawsuits against the Padres (and thus distinguishes City of Long Beach v. Bozek, California Supreme Court, 1982). The court concludes, however, that the plaintiffs have not demonstrated the requisite lack of probable cause in support of two of their three claims for malicious prosecution.
Paiva v. Nichols
(2008, 6th District – 168 Cal.App.4th 1007, 85 Cal.Rptr.3d 838)
Panakosta v. Hammer Lane Management, LLC
(2011, 3d District – 199 Cal.App.4th 612, 131 Cal.Rptr.3d 835)
Paredes v. CREDIT CONSULTING SERVICES, INC.
(2022, 6th District – 82 Cal. App. 5th 410)
Park 100 Investment Group II, LLC v. Gregory R. Ryan
(2009, 2d District – 180 Cal.App.4th 795, 103 Cal.Rptr.3d 218)
Pasternack v. McCullough
(2015, 4th District – 235 Cal.App.4th 1347, 186 Cal.Rptr.3d 81)
(re-appealed, 4th District – — Cal.Rptr.3d —)
Patel v. Chavez
(2020, 2d District – 48 Cal.App.5th 484, 261 Cal.Rptr.3d 829)
Paterno v. Superior Court
(2008, 4th District – 163 Cal.App.4th 1342, 78 Cal.Rptr.3d 244)
Paul for Council v. Hanyecz
(2001, 2d District – 85 Cal.App.4th 1356, 102 Cal.Rptr.2d 864)
Paul was a candidate for city council. He sued defendants, alleging that they interfered with his candidacy by contributing to an opponent in a manner that violated the state’s Political Reform Act. Defendants filed a special motion to strike the allegation. They effectively conceded the illegal nature of their method of campaign contributions, but argued that their campaign money laundering was nevertheless “in furtherance” of their First Amendment rights, and thus was protected by the anti-SLAPP statute. The trial court granted the motion. The appellate court reverses, holding that such illegal activity is not a valid exercise of constitutional rights as contemplated by the anti-SLAPP statute. (See also The Governor Gray Davis Committee v. American Taxpayers Alliance.
Paul v. Friedman
(2002, 2d District 95 Cal.App.4th 853, 117 Cal.Rptr.2d 82)
Former clients sued Paul, a securities broker, alleging fraud, negligence, and violation of securities laws. Paul was completely vindicated in an arbitration proceeding; in addition, the court awarded sanctions against the plaintiffs for filing a “frivolous claim for which there was no factual foundation.” Paul then sued his former clients and their lawyer, Friedman, for malicious prosecution and a variety of other causes arising from Friedman’s investigation of Paul during the aribtration proceeding and disclosure of personal information. Friedman filed a special motion to strike the complaint pursuant to the anti-SLAPP statute, on the grounds that the investigation and disclosure of information were related to “an issue under consideration or review” in the arbitration proceeding. The trial court granted Friedman’s motion to strike all tort and contract claims but refused to strike Paul’s claim that Friedman has breached a confidentiality agreement reached at the commencement of arbitration for the earlier lawsuit. In a complex decision the appellate court rules that Paul’s tort and contract claims cannot be stricken under the anti-SLAPP statute since Friedman had not met his burden of proof, i.e., he had not made the required prima facie showing that Paul’s claims arose from activity protected by the anti-SLAPP statute.
Paulus v. Bob Lynch Ford, Inc.
(2006, 6th District – 139 Cal.App.4th 659, 43 Cal.Rptr.3d 148)
Lynch brought an anti-SLAPP motion to strike Paulus’s action for malicious prosecution, abuse of process, and intentional interference with contract. The court granted the motion and awarded Lynch attorney fees and costs. Paulus appealed. The appellate court affirmed, concluding that Paulus failed to make a prima facie showing of lack of probable cause for his malicious prosecution claim. The court further found that Paulus had made no independent factual or legal arguments regarding the merits of his other claims in the trial court, nor had he specifically addressed the matter in his opening brief, and thus deemed Paulus to have abandoned any challenge to the order striking those two claims.
Pech v. Doniger
(2022, 2nd District – 75 Cal.App.5th 443, 290 Cal.Rptr.3d 47)
People v. Health Laboratories of North America, Inc.
(2001, 1st District – 87 Cal.App.4th 442, 104 Cal.Rptr.2d 618)
The district attorneys of two counties sued the manufacturer of a weight-loss product, alleging that advertising claims violated various state statutes. Defendant filed a special motion to strike, arguing that the action was prosecuted to chill its exercise of free speech. Defendant acknowledged that the anti-SLAPP statute expressly does not apply to an enforcement action brought by a district attorney (Code of Civil Procedure section 425.16 (d)), but challenged the constitutionality of this exclusion. The trial court denied the motion and the appellate court affirms, holding that the exclusion does not violate the “equal protection” clause of either the U.S. or California constitutions.
People v. McGraw-Hill Companies, Inc.
(2014, 1st District – 228 Cal.App.4th 1382, 176 Cal.Rptr.3d 496)
People ex rel. 20th Century Insurance Co. v. Building Permit Consultants, Inc.
(2000, 2d District – 86 Cal.App.4th 280, 103 Cal.Rptr.2d 71)
An insurance company sued a company that assisted individuals in preparing estimates of damages from an earthquake. Plaintiff alleged that defendants arranged with homeowners to artificially increase the estimates on the condition they receive up to 50 percent of the insurance payments. Defendants filed a special motion to strike, arguing that the estimates were prepared in anticipation of litigation and therefore were exercises in the right of petition. The trial court denied the motion and the appellate court affirms. “At the time defendants created and submitted their reports and claims, there was no ‘issue under consideration’ pending before any official proceedings.”
People ex rel. Allstate Ins. Co. v. Rubin
(2021, 4th District – 66 Cal.App.5th 493, 280 Cal.Rptr.3d 858)
People ex rel. Fire Insurance Exchange v. Anapol
(2012, 2d District – 211 Cal.App.4th 809)
People ex rel. Lockyer v. Brar
(2004, 4th District – 115 Cal.App.4th 1315, 9 Cal.Rptr.3d 844)
The state attorney general filed a complaint against Brar to obtain an order to stop Brar from filing lawsuits under the state’s unfair competition law. Brar moved to strike the complaint pursuant to the anti-SLAPP statute. The trial court denied the motion. The court of appeal dismisses the motion as friviolous inasmuch as the anti-SLAPP statute, by its own provisions, does not apply to actions brought by public prosecutors.
People ex rel. v. Strathmann v. Acacia Research Corp.
(2012, 4th District – 210 Cal.App.4th 487, 148 Cal.Rptr.3d 361)
Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP
(2005, 1st District – 133 Cal.App.4th 658, 35 Cal.Rptr.3d 31)
This case arose from the collapse of a fraudulent investment scheme. Plaintiffs — investors who lost millions and a bankruptcy trustee representing entities that were used to perpetrate the scheme — sued defendant law firm for conduct which allegedly helped advance the fraudulent scheme. The trial court denied defendant’s anti-SLAPP motion. The appellate court reversed in part, finding the motion should have been granted in part because plaintiffs’ claims were partially based on positions the firm took in court, or in anticipation of litigation with the SEC, and some plaintiffs did not establish a probability of prevailing. Specifically, the court concluded the bankruptcy trustee’s claims on behalf of one entity were barred by the doctrine of unclean hands and the investors’ claims were barred by the statute of limitations.
Personal Court Reporters, Inc. v. Rand
(2012, 2d District – 205 Cal.App.4th 182, 140 Cal.Rptr.3d 301)
Pfeiffer Venice Properties v. Bernard
(2002, 2d District – 101 Cal.App.4th 211, 123 Cal.Rptr.2d 647)
A landlord notified tenants to vacate their parking spaces for construction. The tenants association encouraged tenants to send the landlord a letter protesting that they could be forced to vacate their parking spaces only after a “legal process.” In the aftermath, two of the landlord’s locks were broken. The landlord sued the tenants association and certain tenants for damages on a variety of claims. Defendants filed a demurrer and notified the plaintiff of their intention to file a special motion to strike the complaint pursuant to the anti-SLAPP statute. On the eve of the deadline to file the anti-SLAPP motion, the plaintiff dismissed all but two individual defendants, and shortly thereafter filed an amended complaint. The trial court dismissed the case under the doctrine of de minimis non curat lex (the law does not concern itself with trifles) and thus did not conduct a hearing on the anti-SLAPP motion. Defendants filed a motion for attorney fees under the anti-SLAPP statute; the motion was denied on the grounds that the court lacked jurisdiction. Held on appeal: “the trial court has jurisdiction to award attorney fees to a prevailing defendant whose SLAPP motion was not heard solely because the matter was dismissed before defendants obtained a ruling on the SLAPP motion.”
Pfeiffer Venice Properties v. Superior Court
(2003, 2d District – 107 Cal.App.4th 761, 132 Cal.Rptr.2d 400)
Philipson & Simon v. Gulsvig
(2007, 4th District – 154 Cal.App.4th 347, 64 Cal.Rptr.3d 504)
Physicians Committee for Responsible Medicine v. Tyson Foods, Inc.
(2004, 1st District – 119 Cal.App.4th 120, 13 Cal.Rptr.3d 926)
Plaintiff brought an action for unfair business practice under Business & Professions Code § 17500, alleging that Tyson made false and deceptive representations about its chicken products sold in California. Tyson filed an anti-SLAPP motion, arguing that the cause of action arose from Tyson’s exercise of its right of free speech “in connection with a public issue”. The trial court granted the motion on the grounds that plaintiff failed to demonstrate a probability of success on its claims. The appellate court reverses on the grounds that Code of Civil Procedure section 425.17, enacted while the appeal was pending, applies to the case. Section 425.17 provides that the anti-SLAPP motion to strike a complaint cannot be applied to “any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, … arising from any statement or conduct by that person,” as long as certain conditions are met. Moreover, section 425.17 contains a retroactivity clause that operated as a repeal of the trial court’s order.  (See also Brenton v. Metabolife International, Inc.)
Planned Parenthood Golden Gate v. Foti
(2003, 1st District – 107 Cal.App.4th 345, 132 Cal.Rptr.2d 46)
Plaintiff filed an action for declaratory relief, asking the court to apply to defendants an earlier injunction limiting demonstrations outside its clinic. The trial court denied defendants’ anti-SLAPP motion on the grounds that defendants had waived protection of the anti-SLAPP statute by stipulating that the present action could be filed. The appellate court affirms the denial. Held: the question whether the anti-SLAPP statute applies in this case became moot once the trial court denied defendants’ motion for summary judgment because in denying summary judgment the trial court impliedly found that plaintiff had demonstrated a probability of prevailing on its claim.
Platypus Wear, Inc. v. Goldberg
(2008, 4th District – 166 Cal.App.4th 772, 83 Cal.Rptr.3d 95)
Plumley v. Mockett
(2008, 2d District – 164 Cal.App.4th 1031, 79 Cal.Rptr.3d 822)
Pott v. Lazarin
(2020, 6th District – 47 Cal.App.5th 141, 260 Cal.Rptr.3d 631)
Prediwave Corporation v. SImpson Thacher & Bartlett LLP
(2009, 6th District – 179 Cal.App.4th 1204, 102 Cal.Rptr.3d 245)
Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (“Premier Medical I”)
(2006, 2d District – 136 Cal.App.4th, 39 Cal.Rptr.3d 43)
Defendants petitioned the Workers’ Compensation Appeals Board (WCAB) to determine whether plaintiff was improperly representing treating physicians in WCAB proceedings. Plaintiff sued, alleging that the defendants were engaged in anticompetitive activity. Arguing that the complaint was based entirely on the defendants’ constitutional right to petition the WCAB, defendants filed a special motion to strike the complaint. The trial court denied the anti-SLAPP motion. The Court of Appeal reversed, holding that the constitutional right to petition includes the basic act of seeking administrative action.
Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (“Premier Medical II”)
(2008, 2d District – 163 Cal.App.4th 550, 77 Cal.Rptr.3d 695)
Price v. Operating Engineers Local Union No. 3
(2011, 3d District- 195 Cal.App.4th 962; 125 Cal.Rptr.3d 220)
Public Employees’ Retirement System v. Moody’s Investors Service, Inc.
(2014, 1st District – 226 Cal.App.4th 643, 172 Cal.Rptr.3d 238)

Q-R

Raining Data Corp. v. Barrenechea
(2009, 4th District- 175 Cal. App. 4th 1363; 97 Cal. Rptr. 3d 196)
Ralphs Grocery Company v. United Foods and Commercial Workers Union Local 8
(2011, 5th District – 192 Cal.App.4th 200, 120 Cal.Rptr.3d 878)
Ralphs Grocery Company v. Victory Consultants, Inc.
(2017, 4th District – 17 Cal.App.5th 245, 225 Cal.Rptr.3d 305)
certified for publication
Ramona Unified School District v. Tsiknas
(2005, 4th Distict – 135 Cal.App.4th 510, 37 Cal.Rptr.3d 381)
Ramona Unified School District (District) sued Neighborhood Alliance for Safe Ramona Schools (Alliance) for abuse of process and barratry stemming from Alliance’s writ petition challenging a District construction project. The trial court granted Alliance’s anti-SLAPP motion. The appellate court affirmed. It held that the gravamen of the abuse of process claim was actually for malicious prosecution, and was barred under City of Long Beach v. Bozek, California Supreme Court, 1982, which held a government entity may not institute a malicious prosecution proceeding against a former plaintiff. To succeed on the barratry claim, plaintiffs had to show the defendants “excited” at least three groundless lawsuits, however defendants’ amendments to their writ petition did not constitute separate proceedings.
Rand Resources, LLC v. City of Carson
(2016, 2d District – 247 Cal.App.4th 1080, 203 Cal.Rptr.3d 46)
Ratcliff v. The Roman Catholic Archbishop of Los Angeles
(2021, 2nd District – 63 Cal.App.5th 869, 278 Cal.Rptr.3d 227)
Reed v. Gallagher
(2016, 3d District – 248 Cal.App.4th 841, 204 Cal.Rptr.3d 178)
Renewable Resources Coalition , Inc. v. Pebble Mines Corp.
(2013, 2d District – 218 Cal.App.4th 384, 159 Cal.Rptr.3d 901)
Reyes v. Kruger
(2020, 6th District – 55 Cal.App.5th 58, 269 Cal.Rptr.3d 549)
Rezec v. Sony Pictures Entertainment, Inc.
(2004, 2d Distict – 116 Cal.App.4th 135, 10 Cal.Rptr.3d 333)
Several individuals sued Sony Pictures under the state’s unfair competition statute, alleging that Sony falsely portrayed a person as a film critic and attributed to him laudatory reviews of its films. The studio filed an anti-SLAPP motion to strike the complaint; the trial court denied the motion on the grounds that advertisements for films, as commercial speech, are not protected under the First Amendment. The appellate court (in a split decision) affirms.
Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation, Inc.
(2019, 1st District – 32 Cal.App.5th 458, 243 Cal.Rptr.3d 816)
Rivera v. First Databank, Inc.
(2010, 4th District – 187 Cal.App.4th 709, 115 Cal.Rptr.3d 1)
Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO
(2003, 1st District – 105 Cal.App.4th 913, 130 Cal.Rptr.2d 81)
Rivero sued numerous individuals and entities, alleging defamation and other claims arising from statements made by the union as part of its contract negotiation campaign. Rivero, a supervising janitor at a university, had been accused of theft, extortion, and favoritism by employees he supervised. Although the charges were not substantiated by an investigation, Rivero’s position was terminated and he was assigned work as a pot scrubber. During contract negotiations with the university the union distributed flyers that claimed union janitors had stood up to their “abusive supervisor” and caused his firing. The union filed an anti-SLAPP motion. The trial court denied the motion on the grounds that the statements made by the union during contract negotiations do not fall under activity protected by the state’s anti-SLAPP statute. The appellate court affirms. Most of the court’s opinion focuses on the phrase “in connection with a public issue” in the anti-SLAPP statute.
RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc.
(2020, 4th District – 56 Cal.App.5th 413, 270 Cal.Rptr.3d 425)
Roberts v. Los Angeles County Bar Association
(2003, 2d District – 105 Cal.App.4th 604, 129 Cal.Rptr.2d 546)
Roberts was a candidate in an election for municipal court judge in Los Angeles. The bar association evaluates all candidates in contested elections for judgeships through its judicial evaluation committee. A candidate may request disqualification of any member of the committee who the candidate believes has a potential conflict of interest. Roberts objected to seven members of the committee. The day after the committee publicly issued an evaluation of Roberts as “not qualified,” Roberts sued the association for breach of contract and fraud based on the allegation that one of the committee members who should have been disqualified at her request was actually present during committee deliberations. The association filed an anti-SLAPP motion to strike the complaint; the trial court denied the motion on the grounds that the suit, which sought damages in connection with the evaluation process, was not a SLAPP. The appellate court reverses on the grounds that the evaluation process is “inextricably intertwined with and part and parcel of the evaluations,” which are constitutionally protected speech. Thus, the anti-SLAPP statute applies as much to the evaluation process as to the evaluations themselves.
Robertson v. Rodriguez
(1995, 2d District – 36 Cal.App.4th 347, 42 Cal.Rptr.2d 464)
A city councilman, alleging libel, sued proponents of a campaign to recall him. At issue was a mailer stating that the plaintiff had been fined by the city for operating an illegal business out of his home. The trial court’s granting of a special motion to strike the complaint is affirmed.
Robinzine v. Vicory
(2006, 1st District – 148 Cal.App.4th 1416, 50 Cal.Rptr.3d 65)
Robles v. Chalilpoyil
(2010, 6th District – 181 Cal.App.4th 566, 104 Cal.Rptr.3d 628)
Roche v. Hyde
(2020, 1st District – 51 Cal.App.5th 757, 265 Cal.Rptr.3d 301)
Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC
(2014, 2d District – 225 Cal.App.4th 660, 170 Cal.Rptr.3d 431)
Rohde v. Wolf
(2007, 2d District – 154 Cal.App.4th 28, 64 Cal.Rptr.3d 348)
Rosenaur v. Scherer
(2001, 3d District – 88 Cal.App.4th 260, 105 Cal.Rptr.2d 674)
Rosenaur launched a ballot initiative to permit commercial development of land he owned. The measure lost after a bitterly fought campaign. Rosenaur sued defendants, opponents of the measure, alleging defamation. The trial court granted a special motion to strike the allegation. The appellate court affirms, holding that the statements alleged to be defamatory could not reasonably be interpreted as factual and therefore plaintiff could not make out a prima facie case for defamation. Rosenaur also appealed the award of attorney fees to defendants, arguing that defendants are not entitled to recover attorney fees because defense counsel agreed to a partial pro bono fee. Held: neither the plain language of the anti-SLAPP statute nor the policies underlying it justifies denying a prevailing defendant attorney fees when representation is pro bono.
Ross v. Kish
(2006, 2d District – 145 Cal.App.4th 188, 51 Cal.Rptr.3d 484)
Rudisill v. California Coastal Com.
(2019, 2d District – 35 Cal.App.5th 1062, 247 Cal.Rptr.3d 840)
Ruiz v. Harbor View Community Association
(2005, 4th District – 134 Cal.App.4th 1456, 37 Cal.Rptr.3d 133)
Ruiz alleged that two letters written by HVCA’s attorney defamed him. The trial court denied HVCA’s anti-SLAPP motion on the grounds that the letters were not protected by the anti-SLAPP statute. The appellate court reversed, holding that the two letters were communications regarding an issue of public interest. The court further found that Ruiz had not shown a probability of prevailing: he failed to show the second letter was defamatory, or that either letter had been published. However, the court remanded with directions for the trial court to reconsider Ruiz’s request for discovery only on the issue of publication of the first letter and decide the anti-SLAPP motion accordingly.
Russell v. Foglio
(2008, 2d District – 160 Cal.App.4th 653, 73 Cal.Rptr.3d 87)

S

S.A. v. Maiden
(2014, 4th District – 229 Cal.App.4th 27, 176 Cal.Rptr.3d 567)
Salma v. Capon
(2008, 1st District – 161 Cal.App.4th 1275, 74 Cal.Rptr.3d 873)
Sanchez v. Bezos
(June 30, 2022, B309364, B312143)
San Diegans for Open Government v. Har Construction, Inc.
(2015, 4th District – 240 Cal.App.4th 611, 192 Cal.Rptr.3d 559)
San Ramon Valley Fire Protection District v. Contra Costa County Employees’ Retirement Association
(2004, 1st District – 125 Cal.App.4th 343, 22 Cal.Rptr.3d 724)
A complaint seeking judicial review of an action or decision by a public entity is not subject to a special motion to strike under the anti-SLAPP statute. The action is not itself an exercise of the public entity’s right of free speech or petition.
Sandlin v. McLaughlin
(2020, 4th District – 50 Cal.App.5th 805, 263 Cal.Rptr.3d 874)
Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Association of Governments
(2008, 2d District – 167 Cal.App.4th 1229, 84 Cal.Rptr.3d 714)
Santa Clara Waste Water Company v. County of Ventura Environmental Health Division
(2017, 2d District – 17 Cal.App.5th 1082, 225 Cal.Rptr.3d 885)
Santa Monica Rent Control Board v. Pearl Street, LLC
(2003, 2d District – 109 Cal.App.4th 1308, 135 Cal.Rptr.2d 903)
The Board filed this action for declaratory and injunctive relief, alleging that state and local rent control law were violated by defendants. At issue is whether, in light of facts presented to the Board, defendants are entitled to charge market rate for rental of certain units. The trial court granted defendants’ anti-SLAPP motion to strike the complaint. The appellate court reverses on the grounds that the basis of the suit — defendants’ filing of notices of their intention to re-rent units at market rates — is not an act by defendants in furtherance of the right of petition or free speech and therefore is not protected by the anti-SLAPP statute.
Save Westwood Village v. Luskin
(2014, 2d District – 233 Cal.App.4th 135, 182 Cal.Rptr.3d 328)
Scalzo v. American Express Co.
(2010, 2d District – 185 Cal.App.4th 91, 109 Cal.Rptr.3d 638)
Schaffer v. City and County of San Francisco
(2008, 1st Distrct – 168 Cal.App.4th 992, 85 Cal.Rptr.3d 880)
Schoendorf v. U.D. Registry, Inc.
(2002, 2d District – 97 Cal.App.4th 227, 118 Cal.Rptr.2d 313)
UDR is a consumer reporting agency that gathers and sells information about unlawful detainer cases. Schoendorf, a tenant, after unsuccessfully attempting to have UDR amend information about her in UDR’s records, sued UDR for acts of negligence. The trial court granted the defendant’s anti-SLAPP motion, on the grounds that UDR had a constitutionally protected right to disseminate information found in court records. The appellate court reverses on the grounds that the information gathered by UDR does not come exclusively from court records. In addition, the court holds, UDR has a duty under both state and federal credit reporting statutes, which require “maximum accuracy” in credit reports, and this duty is not abrogated or reduced by any First Amendment rights. (See also Decker v. The U.D. Registry, Inc. (2003)
Schroeder v. City Council of the City of Irvine
(2002, 4th District – 97 Cal.App.4th 174, 118 Cal.Rptr.2d 330)
Schroeder sued the Irvine City Council over the council’s approval of funds for a voter registration drive (Vote 2000), alleging that the program was a ruse to campaign for a county measure concerning development of an abandoned military airbase. The trial court granted defendants’ special motion to strike the complaint under the anti-SLAPP statute, ruling that the plaintiff had not shown a likelihood of proving that the expenditures for Vote 2000 were unlawful political expenditures. Schroeder appealed, arguing that if his demonstration of the likelihood of prevailing on his claims was deficient it was because he was denied permission to conduct “specified discovery” that would have produced evidence the expenditures were unlawful. In addition, he argued that the anti-SLAPP statute’s provision for attorney fees for the prevailing party should be construed as permissive or declared unconstitutional. The appellate court concludes that Schroeder had not shown good cause to conduct specified discovery; materials sought by Schroeder were either readily available without the device of discovery or were irrelevant to his claims as a matter of law. The court also upholds the constitutionality of the anti-SLAPP statute’s provision for mandatory attorney fees.
Schwarzburd v. Kensington Police Protection & Community Services Dist.
(2014, 1st District – 225 Cal.App.4th 1345, 170 Cal.Rptr.3d 899)
Scott v. Metabolife International, Inc.
(2004, 3d District – 115 Cal.App.4th 404, 9 Cal.Rptr.3d 242)
Scott sued Metabolife for damages for false and deceitful advertising, alleging that she was injured by a Metabolife product. Metabolife filed a motion to strike the complaint, arguing that the causes of action arose from its advertising, labeling, marketing, and promoting of its product, activities protected by the First Amendment. The trial court denied the motion to strike the complaint for false advertising on the grounds that “applying [the anti-SLAPP statute] to advertising would be stretching the definition of that statute to its outermost boundaries.” The appellate court affirms on the grounds that Metabolife’s advertising of its products for profit does not concern an issue of public interest as required by the anti-SLAPP statute. (Between the trial court’s ruling and the time this matter was heard in oral argument before the appellate court, California Code of Civil Procedure section 425.17 became law. Under section 425.17, commercial advertising is not protected by the anti-SLAPP statute.) (See also Martinez v. Metabolife International, Inc., 4th District Court of Appeal (2003); Brenton v. Metabolife International, Inc., 4th District Court of Appeal (2004).)
Seelig v. Infinity Broadcasting Corp.
(2002, 1st District – 97 Cal.App.4th 798, 119 Cal.Rptr.2d 108)
Seelig participated in a TV show, “Who Wants to Marry a Multimillionaire.” Before the broadcast Seelig was invited to appear on a radio talk show. She declined. The radio program hosts discussed on the air her refusal to be interviewed. Seelig sued the radio program hosts and the broadcast station owners for damages, alleging defamation and other causes. The defendants filed both a demurrer and a special motion to strike the complaint under the anti-SLAPP statute. The trial court denied the anti-SLAPP motion. The appellate court reverses, concluding that the anti-SLAPP statute applies to the radio broadcast and plaintiff could not prevail on the merits of her claims, since none of the alleged defamatory statements were actionable statements of fact.
Seltzer v. Barnes
(2010, 1st District – 182 Cal.App.4th 953, 106 Cal.Rptr.3d 290)
Serova v. Sony Music Entertainment
(2020, 2d District – 44 Cal.App.5th 103, 257 Cal.Rptr.3d 398)
Shahbazian v. City of Rancho Palos Verdes
(2017, 2d District – 17 Cal.App.5th 823, 225 Cal.Rptr.3d 772)
Sheley v. Harrop
(2017, 3d District – 9 Cal.App.5th 1197, 215 Cal.Rptr.3d 606)
Shekhter v. Financial Indemnity Co.
(2001, 2d District – 89 Cal.App.4th 141, 106 Cal.Rptr.2d 843)
Financial sued a number of persons, including Shekhter, alleging insurance fraud. The suit was settled, with the condition that all information relating to the suit be kept confidential. Later, in the present case, Allstate Insurance filed a complaint against Shekhter alleging insurance fraud. Shekhter filed a cross-complaint against Allstate but also Financial Indemnity, its lawyers, and others. Shekhter alleged inter alia that the conduct of Financial’s lawyers in the earlier suit against him included unfair business practices and violations of the Unruh Civil Rights Act. Motions by different defendants to strike specific causes of action in the cross-complaint were denied by the trial court. The appellate court reversed. Held: a special motion to strike can apply toa single cause of action when other claims remain to be resolved. Additionally, actions by an attorney on behalf of a SLAPP target fall within the scope of the anti-SLAPP statute. In this case because the actions alleged to be unfair business practices and violations of the Unruh Act arose in connection with the prosecution of a lawsuit, they were actions in furtherance of the right of petition and thus covered by the anti-SLAPP statute.
Sheppard v. Lightpost Museum Fund
(2006, 6th District – 146 Cal.App.4th 315, 52 Cal.Rptr.3d 821)
Siam v. Kizilbash
(2005, 6th District – 130 Cal.App.4th 1563, 31 Cal.Rptr.3d 368)
Kizilbash accused Siam of abusing his two sons, reporting him to public officials. He also filed a civil harassment petition against Siam. In turn, Siam sued Kizilbash for defamation and malicious prosecution among other causes of action. The trial court denied Kizilbash’s motion to dismiss the entire complaint as a SLAPP. The appellate court upholds the order except for the claim of malicious prosecution, holding that such a claim may not be based on a civil harassment petition. In addition, the court holds that the “litigation privilege” (Civil Code section 47) is overriden by liability for false reporting under the Child Abuse and Neglect Reporting Act (Penal Code section 11164 et seq.).
Silk v. Feldman
(2012, 2d District – 208 Cal.App.4th 547)
Simmons v. Allstate Insurance Co.
(2001, 3d District – 92 Cal.App.4th 1068, 112 Cal.Rptr.2d 397)
Simmons filed a cross-complaint for defamation after Allstate sued him for unfair business practices (alleging that Simmons had overtreated patients covered by Allstate). The trial court granted a special motion to strike the cross-complaint. On appeal, Simmons claimed that the trial court erred in refusing to grant him leave to amend the cross-complaint after the court had granted the motion. Held: allowing a SLAPP plaintiff to amend the complaint would undermine the anti-SLAPP statute’s purpose of providing for quick dismissal of meritless lawsuits.
Simmons v. Bauer Media Group USA, LLC
(2020, 2d District – 50 Cal.App.5th 1037, 263 Cal.Rptr.3d 903)
Singh v. Lipworth
(2014, 3d District – 227 Cal.App.4th 813, 174 Cal.Rptr.3d 131)
Sipple v. Foundation for National Progress
(1999, 2d District – 71 Cal.App.4th 226, 83 Cal.Rptr. 677)
The magazine “Mother Jones” published an article about a custody battle, ostensibly to show how rich and powerful men may use the legal system to their advantage over women who may have been abused by them. The subject of the article sued the magazine for defamation. The appellate court upholds the trial court’s dismissal of the suit following a special motion to strike the complaint. The court concluded that the subject of the article was not the private affair of an individual but a public proceeding involving public issues. “[T]he issues of spousal abuse generated in the custody proceedings are of public interest when the person accused of the abuse is a nationally known figure identified with morality campaigns for national leaders ….” The defendant argued that there was a probability he would prevail on his defamation claim because not all of the magazine article was privileged under Civil Code section 47, which confers an absolute privilege on any fair and true report of a judicial proceeding. The court rejected this argument on the grounds that the defendant has made his case if he can establish by the evidence that the gist of the alleged defamatory statements is justified.
Six4Three, LLC v. Facebook, Inc.
(2020, 1st District – 49 Cal.App.5th 109, 262 Cal.Rptr.3d 594)
Slaney v. Ranger Insurance Co.
(2004, 2d District – 115 Cal.App.4th 306, 8 Cal.Rptr.3d 915)
Slaney prepared an estimate for repair of an aircraft in support of a claim by third parties presented to Ranger Insurance. The company denied the claim on grounds that the claim was fraudulently excessive and sued the insureds and Slaney for bad faith. Slaney’s motion for summary judgment was granted and he was dismissed from the suit. The insureds subsequently received a judgment against the company as well as punitive damages for malicious denial of their claim. Slaney then brought this action for malicious prosecution. The trial court denied the company’s anti-SLAPP motion after concluding that Slaney presented sufficient evidence to establish a probability of prevailing on his complaint. The appellate court affirms. According to the court, the underlying judgment against the company, which included a finding of malice and an award of punitive damages, demonstrated a potential for recovery in the present case.
Slauson Partnership v. Ochoa
(2003, 2d District – 112 Cal.App.4th 1005, 5 Cal.Rptr.3d 668)
The owner of a mini-mall filed a complaint for injunctive relief against Ochoa, alleging he had organized ongoing demonstrations against one of the mall’s tenants, a club that produced nude shows. Ochoa filed an anti-SLAPP motion, but a month later the parties stipulated to an injunction that regulated the manner of the demonstrations. Ochoa’s motion was tabled to allow time for the injunction to be tested and reviewed by the court. After a month and a half, the trial court, based on testimony about the conduct of the demonstrations, denied the anti-SLAPP motion on the grounds that plaintiffs had succeeded in demonstrating a probability of succeeding on its claim. In a lengthy opinion, the appellate court affirms, ruling that the trial court did not err in considering the same evidence for both the motion to strike and the injunction.
Smith v. Adventist Health System/West
(2010, 5th District – 190 Cal.App.4th 40, 117 Cal.Rptr.3d 805)
Sonoma Media Investments, LLC v. Superior Court
(2019, 1st District – 34 Cal.App.5th 24, 247 Cal.Rptr.3d 5)
South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011, 3d District – 193 Cal.App.4th 634)
Southern California Gas Co. v. Flannery
(2014, 2d District – 232 Cal.App.4th 477, 181 Cal.Rptr.3d 436)
Spencer v. Mowat
(2020, 2d District – 46 Cal.App.5th 1024, 260 Cal.Rptr.3d 372)
Sprengel v. Zbylut
(2015, 2d District – 241 Cal.App.4th 140, 194 Cal.Rptr.3d 407)
(modified 10-29-15)
Squires v. City of Eureka
(2014, 1st District – 231 Cal.App.4th 577, 180 Cal.Rptr.3d 10)
Stafford v. Attending Staff Assn. of LAC + USC Medical Center
(2019, 2d District – 41 Cal.App.5th 629, 254 Cal.Rptr.3d 369)
StaffPro, Inc. v. Elite Show Services, Inc.
(2006, 4th District – 136 Cal.App.4th 1392, 39 Cal.Rptr.3d 682)
StaffPro filed a malicious prosecution suit against Elite which responded with an anti-SLAPP motion. The trial court granted Elite’s motion, ruling that StaffPro failed to carry its burden of establishing a probability that it would prevail because it had not shown favorable termination or probable cause. The appellate court affirmed, holding that a severability analysis is improper in determining whether a malicious prosecution plaintiff has demonstrated favorable termination of an underlying lawsuit. Thus, since the first cause of action in the underlying suit had not terminated in favor of StaffPro, it could not demonstrate favorable termination, and therefore could not prevail in its malicious prosecution suit.
Starview Property, LLC v. Lee
(2019, 2d District – 41 Cal.App.5th 203, 254 Cal.Rptr.3d 58)
State Farm General Insurance Co. v. Majorino
(2002, 2d District – 99 Cal.App.4th 974, 121 Cal.Rptr.2d 719)
Majorino and O’Brien sued several people after they were allegedly assaulted during a party at a private home. The home’s owners were among the named defendants; the owners tendered their defense to State Farm under their homeowner policy. State Farm then filed an action for declaratory relief, seeking a judicial determination of its duty to indemnify the homeowners. In turn, Majorino and O’Brien filed an anti-SLAPP motion, arguing that State Farm’s action was designed to chill their right to petition for legal redress. The trial court denied the motion, and the appellate court affirmed, concluding that Majorino and O’Brien had failed to demonstrate that State Farm’s action for declaratory relief qualified as a SLAPP under Code of Civil Procedure section 425.16. “[T]he act which underlies and forms the basis for State Farm’s declaratory relief action is not the personal injury lawsuit filed by appellants, but the [homeowners’] tender of the defense of that lawsuit under a policy that contains an arguably applicable exclusionary clause.”
State Farm Mutual Automobile Ins. Co. v. Lee
(2011, 3d District – 193 Cal.App.4th 34, 122 Cal.Rptr.3d 183)
Steadman v. Osborne
(2009, 4th District – 178 Cal.App.4th 950, 100 Cal.Rptr.3d 724)
Steed v. Department of Consumer Affairs
(2012, 2d District – 204 Cal.App.4th 112, 138 Cal.Rptr.3d 519)
Stenehjem v. Sareen
(2014, 6th District – 226 Cal.App.4th 1405, 173 Cal.Rptr.3d 173)
Stewart v. Rolling Stone LLC
(2010, 1st District – 181 Cal.App.4th 664, 105 Cal.Rptr.3d 98)
Suarez v. Trigg Laboratories, Inc.
(2016, 2d District – 3 Cal.App.5th 118, 207 Cal.Rptr.3d 411)
Sugarman v. Benett
(2021, 2d District – 73 Cal.App.5th 165, 288 Cal.Rptr.3d 174)

Sugarman v. Brown
(2021, 2d District – 73 Cal.App.5th 152, 288 Cal.Rptr.3d 165)

Summerfiled v. Randolph
(2011, 2d District – 201 Cal.App.4th 127)
Sunset Millennium Associates, LLC v. Le Songe, LLC
(2006, 2d District – 138 Cal.App.4th 256, 41 Cal.Rptr.3d 273)
Sunset Millennium Associates v. LHO Grafton Hotel
(2006, 2d District – 146 Cal.App.4th 300, 52 Cal.Rptr.3d 828)
Supershuttle International, Inc. v. Labor & Workforce Development Agency
(2019, 2d District – 40 Cal.App.5th 1058, 253 Cal.Rptr.3d 666)
Swanson v. County of Riverside
(2019, 4th District – 36 Cal.App.5th 361, 248 Cal.Rptr.3d 476)
Sycamore Ridge Apartments LLC v. Naumann
(2007, 4th District – 157 Cal.App.4th 1385, 69 Cal.Rptr.3d 561)
Sylmar Air Conditioning v. Pueblo Contracting Services, Inc.
(2004, 2d District – 122 Cal.App.4th 1049, 18 Cal.Rptr.3d 882)
In response to Pueblo’s lawsuit against it, Sylmar filed a cross-complaint alleging fraud among other actions. Pueblo filed an anti-SLAPP motion to strike the cross-complaint for fraud. Before the hearing on the motion, Sylmar filed an amended cross-complaint. The trial court granted the anti-SLAPP motion. On appeal Sylmar argued that its amended cross-complaint made the anti-SLAPP motion moot. The appellate court holds that a plaintiff may not avoid a hearing on an anti-SLAPP motion by filing an amended pleading, and thus, if the motion is granted, may not avoid the mandatory award of costs and attorney fees to the SLAPP target.
Symmonds v. Mahoney
(2019, 2d District – 31 Cal.App.5th 1096, 243 Cal.Rptr.3d 445)

T


Taheri Law Group v. Evans
(2008, 2d District – 160 Cal.App.4th 482, 72 Cal.Rptr.3d 847)

Takhar v. People ex rel. Feather River Air Quality Management Dist.
(2018, 3d District – 27 Cal.App.5th 15, 237 Cal.Rptr.3d 759)

Talega Maintenance Corp. v. Standard Pacific Corp.
(2014, 4th District – 225 Cal.App.4th 722, 170 Cal.Rptr.3d 453)

Tendler v. www.jewishsurvivors.blogspot.com
(2008, 6th District – 164 Cal.App.4th 802, 79 Cal.Rptr.3d 407)

Appellant Tendler obtained a pre-lawsuit discovery order in an Ohio state court directed to Google, from whom he sought to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Tendler then filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The anonymous individuals filed an anti-SLAPP motion. The court held that a request for a subpoena is not a “cause of action,” and therefore cannot be subject to an anti-SLAPP motion. In his concurrence, Justice McAdams urged the Legislature to consider whether the anti-SLAPP law should be expanded to include such third-party subpoena requests. As of Jan. 1, 2009, amendments to Code of Civil Procedure sections 1987.1 and 1987.2 provide that in a successful motion to quash such a subpoena, the court shall award the amount of the reasonable expenses, including attorney fees, incurred in making the motion.

Tamkin v. CBS Broadcasting, Inc.
(2011, 2d District – 193 Cal.App.4th 133, 22 Cal.Rptr.3d 264)

Teamsters Local 2010 v. Regents of University of California
(2019, 1st District – 40 Cal.App.5th 659, 253 Cal.Rptr.3d 394)

Terry v. Davis Community Church
(2005, 3d District – 131 Cal.App.4th 1534, 33 Cal.Rptr.3d 145)

Plaintiffs, employees of Davis Community Church, sued the church and others for defamation and emotional distress, alleging that church officials falsely accused them of having an inappropriate sexual relationship with a minor in the course of their church work. The trial court granted defendants’ anti-SLAPP motion. The appellate court affirms the order, concluding that private communications concerning issues of public interest are protected by the anti-SLAPP statute (see Averill v. Superior Court) and plaintiffs had not demonstrated a probability of prevailing on their claims.

Thayer v. Kabateck Brown Kellner LLP
(2012, 1st District –  207 Cal.App.4th 141, 143 Cal.Rptr.3d 17)

Third Laguna Hills Mutual v. Joslin
(2020, 4th District – 49 Cal.App.5th 366, 262 Cal.Rptr.3d 814)

Traditional Cat Association, Inc. v. Gilbreath
(2004, 4th District – 118 Cal.App.4th 392, 13 Cal.Rptr.3d 353)

This case arose because of a split in the ranks of organized cat breeders. The founder of The Traditional Cat Association sued defendants for allegedly defamatory statements published on their website. The trial court denied defendants’ anti-SLAPP motion to strike the complaint, concluding that plaintiffs had demonstrated a probability of prevailing on their complaint. The court’s decision was based on its ruling that defendants’ statute of limitations defense in their anti-SLAPP motion was not a proper issue for determination under the terms of the anti-SLAPP statute. The appellate court finds this conclusion erroneous. Moreover, it rejects plaintiffs’ argument that a cause of action for defamation arising from statements posted on a website arises continuously while the website is operating, holding that the single publication rule in the law of defamation applies to statements published on websites. Because defendants posted the alleged defamatory statements more than a year before plaintiffs filed their complaint, the action for defamation is barred by the statute of limitations. This is the first California court to adopt the single-publication rule for web publishing.

Thomas v. Quintero
(2005, 1st District – 126 Cal.App.4th 635, 24 Cal.Rptr.3d 619)

Quintero was part of organized public protests against Thomas, his landlord. After Quintero and others appeared at Thomas’s church, Thomas took action against Quintero by filing a petition seeking injunctive relief against civil harassment (Civil Code section 527.6). Quintero responded with an anti-SLAPP motion, which the trial court denied. The appellate court reverses. Held: A Section 527.6 petition to enjoin civil harassment is subject to an anti-SLAPP motion to strike. However, an application for a temporary restraining order (TRO), issued pending a hearing on the petition for injunctive relief, is not subject to an anti-SLAPP motion. The request for a TRO does not qualify as a “cause of action” under the anti-SLAPP statute.

Tichinin v. City of Morgan Hill
(2009, 6th District – 177 Cal.App.4th 1049, 9 Cal.Rptr.3d 661)

Tourgeman v. Nelson & Kennard
(2014, 4th District – 222 Cal.App.4th 1447, 166 CAl.Rptr.3d 729)

Towner v. County of Ventura
(2021, 2d District – 63 Cal.App.5th 761, 277 Cal.Rptr.3d 891)

Trapp v. Naiman
(2013, 4th District – 218 Cal.App.4th 113, 159 Cal.Rptr.3d 462)

Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes, Inc.
(2015, 4th District – 235 Cal.App.4th 361, 185 Cal.Rptr.3d 8)

Trilogy Plumbing, Inc. v. Navigators Specialty Insurance Company
(2020, 4th District – 50 Cal.App.5th 920, 263 Cal.Rptr.3d 892)

Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc.
(2021, 2d District – 59 Cal.App.5th 995, 273 Cal.Rptr.3d 831)

Truck Insurance Exchange v. Federal Insurance Company
(2021, 2d District – 63 Cal.App.5th 211, 277 Cal.Rptr.3d 579)

Tuchscher Development Enterprises, Inc. v. San Diego Unified Port District
(2003, 4th District – 106 Cal.App.4th 1219, 132 Cal.Rptr.2d 57)

Plaintiff sued the Port for a variety of business-related causes of action, alleging that the Port had interfered with an exclusive negotiating agreement between plaintiff and others concerning development of bayfront property. The Port filed an anti-SLAPP motion, arguing that the lawsuit arose from the Port’s review of plans for the development. The trial court granted the motion. On appeal plaintiff argued that no issue concerning the development project was before the Port in any official process when the Port commented on the project. Even if that were true, the appellate court says, the project was nevertheless a matter of public interest and therefore the Port’s comments were protected by the anti-SLAPP statute. Because the court also finds that plaintiff did not demonstrate a probability of prevailing on its claims, it affirms the grant of the motion.

Tucker Ellis LLP v. Superior Court
(2017, 1st District – 12 Cal.App.5th 1233, 220 Cal.Rptr.3d 382)

Tukes v. Richard
(2022, 2d District – 81 Cal.App.5th 1, 296 Cal.Rptr.3d 707)

Turnbull v. Lucerne Valley Unified School District
(2018, 4th District – 24 Cal.App.5th 522, 234 Cal.Rptr.3d 488)

Turner v. Vista Pointe Ridge HOA
(2009, 4th District – 180 Cal.App.4th 676, 102 Cal.Rptr.3d 750)

Tutor-Saliba Corp. v. Herrera
(2006, 1st District – 136 Cal.App.4th 164, 39 Cal.Rptr.3d 21)

Plaintiff Tutor-Saliba Corporation sued the City Attorney of San Francisco for allegedly defamatory statements he made in a speech before the San Francisco Chinese-American Democratic Club regarding a lawsuit he had filed against plaintiff. The trial court granted defendant’s anti-SLAPP motion, concluding that the alleged defamatory statements were absolutely privileged under Civil Code section 47(a) (“official duty privilege”), as well as under Government Code sections 821.6 and 820.2 (“prosecutorial immunity” and “discretionary immunity,” respectively). The appellate court affirmed.

Tuszynzka v. Cunningham
(2011, 4th District – 199 Cal.App.4th 257, 131 Cal.Rptr.3d 63)

U-V

Ulkarim v. Westfield LLC
(2014, 2d District – 227 Cal.App.4th 1266, 175 Cal.Rptr.3d 17)
USA Waste of California, Inc. v. City of Irwindale
(2010, 2d District – 184 Cal.App.4th 53, 108 Cal.Rptr.3d 466)
United States Fire Insurance Co. v. Sheppard, Mullin, Richter & Hampton
(2005, 6th District – 171 Cal.App.4th 1617, 90 Cal.Rptr.3d 619)
U.S. Western Falun Dafa Association v. Chinese Chamber of Commerce
(2008, 1st District – 163 Cal.App.4th 590, 77 Cal.Rptr.3d 710)
Urick v. Urick
(2017, 2d District – 15 Cal.App.5th 1182 224 Cal.Rptr.3d 125)
ValueRock TN Properties, LLC v. PK II Larwin Square SC LP
(2019, 4th District – 36 Cal.App.5th 1037, 249 Cal.Rptr.3d 179)
Vargas v. City of Salinas (Salinas II)
(2011, 6th District – 200 Cal.App.4th 1331, 134 Cal.Rptr.3d 244)
Verceles v. Los Angeles Unified School District
(2021, 2d District – 63 Cal.App.5th 776, 278 Cal.Rptr.3d 246)
Vergos v. McNeal
(2007, 3d District – 146 Cal.App.4th 1387, 53 Cal.Rptr.3d 647)
Vivian v. Labrucherie
(2013, 1st District – 214 Cal.App.4th 267, 153 Cal.Rptr.3d 707)
Visher v. City of Malibu
(2005, 2d District – 126 Cal.App.4th 363, 23 Cal.Rptr.3d 816)
City refused to process plaintiffs’ application for a “coastal development permit” because the city’s right to do so was the subject of a lawsuit by the city against the California Coastal Commission. Plaintiffs filed a petition for writ of mandate to require the city to process their application. The city moved to dismiss the petition as a SLAPP. The trial court denied the anti-SLAPP motion and refused to dismiss the petition. The appellate court affirms on the grounds that plaintiffs’ petition arose from the city’s refusal to process an application, not from the city’s lawsuit against the Coastal Commission. Although the city could not claim the protection of the state’s anti-SLAPP statute, it was not left defenseless in preserving its case against the Coastal Commission.
Vogel v. Felice
(2005, 6th District – 127 Cal.App.4th 1006, 26 Cal.Rptr.3d 350)
Two candidates for public office sought damages for libel and other torts based on statements posted on a public website. Defendant’s anti-SLAPP motion was denied on the grounds that the allegedly libelous statements could be shown to have exceeded privileges afforded under state law and the U.S. Constitution. The appellate court reverses. According to the court, plaintiffs’ claims fell squarely within the protection of the anti-SLAPP statute, requiring plaintiffs to show they could prevail on the merits, and plaintiffs failed to carry this burden.

W

Walker v. Kiousis
(2001, 4th District – 93 Cal.App.4th 1432, 114 Cal.Rptr.2d 69)
Walker, a California Highway Patrolman, arrested Kiousis for suspected drunk driving. After pleading guilty, Kiousis filed a citizen complaint against Walker with the CHP, alleging conduct inappropriate for an officer. The CHP determined the complaint was without merit, and Walker then sued Kiousis for defamation. Civil Code section 47 generally creates an absolute privilege for statements made in the course of an official proceeding. However, section 47.5 creates an exception, allowing a peace officer to bring a defamation action against an individual who knowingly and maliciously files a false complaint about the office. Kiousis moved to dismiss Walker’s suit, arguing that Civil Code section 47.5 was unconstitutional and therefore his complaint to the CHP was protected under the anti-SLAPP statute. The trial court granted the motion to strike, but on the grounds that Walker had not demonstrated a probability of prevailing on his lawsuit, as required by the anti-SLAPP statute, because he had not shown he sustained any actual damage. The appellate court affirmed the granting of the motion to strike, but on the grounds that section 47.5 is unconstitutional because it impermissably regulates speech based on the content of the speech.
Wallace v. McCubbin
(2003, 2d District – 111 Cal.App.4th 744, 3 Cal.Rptr.3d 909)
Wang v. Hartunian
(2003, 2d District – 111 Cal.App.4th 744, 3 Cal.Rptr.3d 909)
In a dispute over use of a vacant lot owned by Wang, Hartunian obtained a permanent restraining order against Wang. Hartunian summoned the police on several occasions to deal with alleged violations of the order, and on one occasion effected a citizen’s arrest of Wang. Wang sued Hartunian alleging false arrest, false imprisonment, and abuse of process among other causes of action. Hartunian’s special motion to strike the complaint as a SLAPP was granted by the trial court, which concluded that Wang was not likely to prevail on his claims. The appellate court reverses, holding that a citizen’s arrest is not a protected activity under the anti-SLAPP statute.
Wang v. Wal-Mart Real Estate Business Trust
(2007, 4th District -153 Cal.App.4th 790, 63 Cal.Rptr.3d 575)
Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi
(2006, 3d District – 141 Cal.App.4th 15, 45 Cal.Rptr.3d 633)
Plaintiffs sued defendants for malicious prosecution. The trial court granted defendants’ anti-SLAPP motion and the court of appeal affirmed. On remand, the trial court awarded attorney fees for the work on appeal as well as for defendants’ challenge to plaintiffs’ undertaking to stay enforcement of the judgment. Plaintiffs appealed the award of attorney fees for the undertaking. The appellate court affirmed, finding that not permitting attorney fees for such efforts would be inconsistent with the Legislature’s intent to encourage continued participation in free speech and petition activities.
Weeden v. Hoffman
(2021, 4th District – 70 Cal.App.5th 269, 285 Cal.Rptr.3d 262)
Weinberg v. Feisel
(2003, 3d District – 110 Cal.App.4th 1122, 2 Cal.Rptr.3d 385)
Weinberg sued Feisel for defamation, alleging that Feisel told others that Weinberg had stolen a valuable collector’s item. Feisel moved to strike the complaint as a SLAPP, contending that his statements accused plaintiff of criminal activity and that criminal activity is always a matter of public interest. The trial court denied the motion, noting that Feisel never reported his suspicions to law enforcement officials and offered no evidence that he intended to file civil charges against plaintiff. The appellate court affirms. The court concludes that nothing in the record supports even an arguable suggestion that Feisel’s statements constituted speech protected by the First Amendment and therefore plaintiff’s causes of action were not subject to dismissal under the anti-SLAPP statute. “Defendant has failed to demonstrate that his dispute with plaintiff was anything other than a private dispute….”
West v. Arent Fox LLP
(2015, 2d District – 237 Cal.App.4th 1065, 188 Cal.Rptr.3d 729)
(modified 6/26/15)
White v. Lieberman
(2002, 2d District – 103 Cal.App.4th 210, 126 Cal.Rptr.2d 608)
Attorney Lieberman represented homeowners in an action against White for slander of title, and the trial court found White liable. An appellate court reversed on the grounds the action was not supported by substantial evidence. Subsequently White sued Lieberman for malicious prosecution of the slander action. The trial court sustained Lieberman’s demurrer, but refused to consider Lieberman’s anti-SLAPP motion on the grounds that it was moot in view of the successful demurrer. The appellate court concludes that the trial court erred in determining that Lieberman’s motion was moot. Because a malicious prosecution action is within the provisions of the anti-SLAPP statute, and there is no possibility White can prevail, the only matter left for the trial court’s consideration is the amount of attorney fees.  (See Yu v. Signet Bank/Virginia, where the same issue is decided similarly.)
Whitehall v. County of San Bernardino
(2017, 4th District – 17 Cal.App.5th 352, 225 Cal.Rptr.3d 321)
Widders v. Furchtenicht
(2008, 2d District – 167 Cal.App.4th 769, 84 Cal.Rptr.3d 428)
Wilbanks v. Wolk
(2004, 1st District -121 Cal.App.4th 883, 17 Cal.Rptr.3d 497)
Brokerage firm sued Wolk, alleging Wolk had made defamatory statements about its business integrity on her website, where Wolk publishes information for the general public about a special type of life insurance policy brokered by plaintiffs. Wolk moved to strike the claim for defamation as a SLAPP; the trial court granted the motion. The appellate court reverses the ruling. The court agrees that the anti-SLAPP statute applies in this case but concludes that plaintiffs showed the requisite probability of prevailing on their claim for defamation.
Wilcox v. Superior Court
(1994, 2d District – 27 Cal.App.4th 809, 33 Cal.Rptr.2d 446)
Several court reporters brought suit against an alliance of court reporters, claiming unfair business practice and interference with plaintiffs’ existing contracts and prospective economic advantages. Defendants cross-complained for damages arising from a flyer circulated by the plaintiffs to raise money for litigation costs. The trial court’s denial of a special motion to strike the cross-complaint is reversed.
Wilkerson v. Sullivan
(2002, 4th District – 99 Cal.App.4th 443, 121 Cal.Rptr.2d 275)
Plaintiffs appealed an order granting an anti-SLAPP motion but dismissed the appeal before it was decided. Defendant moved for an award of attorney fees in connection with the appeal but the court denied recovery of fees. Defendant appealed the denial. The court of appeal reverses, holding that defendants in a SLAPP are entitled to an award of attorney fees incurred in connection with defending the anti-SLAPP motion on appeal even when plaintiffs voluntarily dismiss the appeal. Once the trial court has granted an anti-SLAPP motion, the judicial decision that the action was a SLAPP remains intact unless reversed by the court of appeal and thus the defendant remains the “prevailing party” for purposes of Code of Civil Procedure section 425.16.
Wilson v. Cable News Network, Inc.
(2016, 2d District – 6 Cal.App.5th 822, 211 Cal.Rptr.3d 724)
(Affirmed in part, reversed in part, and remanded)
Winslett v. 1811 27th Avenue, LLC
(2018, 1st District – 26 Cal.App.5th 239, 237 Cal.Rptr.3d 25)Wisner v. Dignity Health
(2022, No. C094051)
Witte v. Kaufman
(2006, 3d District – 141 Cal.App.4th 1201, 46 Cal.Rptr.3d 790)
Wittenberg v. Bornstein
(2020, 1st District – 50 Cal.App.5th 303, 263 Cal.Rptr.3d 677)
Wong v. Jing
(2010, 6th District – 189 Cal. App. 4th 1354, 117 Cal. Rptr. 3d 747)
The trial court denied an anti-SLAPP motion to strike a dentist’s claims of libel per se and intentional and negligent infliction of emotional distress, filed against two parents and Yelp!, arising from a negative review on Yelp! regarding the dentist’s treatment of the parents’ child.  The Court of Appeal held that six of the seven claims should have been dismissed pursuant to the anti-SLAPP law.
Wong v. Wong
(2019, 1st District – 43 Cal.App.5th 358, 256 Cal.Rptr.3d 624)
Woodhill Ventures, LLC v. Yang
(2021, 2nd District – 68 Cal.App.5th 624, 283 Cal.Rptr.3d 507)
Workman v. Colichman
(2019, 2d District – 33 Cal.App.5th 1039, 245 Cal.Rptr.3d 636)
World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc.
(2009, 2d District – 172 Cal.App.4th 1561, 92 Cal.Rptr.3d 227)

X-Y-Z

Xu v. Huang
(2021, 2nd District – 73 Cal.App.5th 802, 288 Cal.Rptr.3d 558)
Yang v. Tenet Healthcare Inc.
(2020, 4th District – 48 Cal.App.5th 939, 262 Cal.Rptr.3d 429)
Yeager v. Holt
(2018, 3d District – 23 Cal.App.5th 450, 232 Cal.Rptr.3d 693)
Yee v. Cheung
(2013, 4th District – 220 Cal.App.4th 184, 162 Cal.Rptr.3d 851)
York v. Strong
(2015, 4th District – 234 Cal.App.4th 1471, 184 Cal.Rptr.3d 845)
Young v. Midland
(2022, Nos. A161843, A162784)
Young v. Tri-City Healthcare Dist.
(2012, 4th District – 210 Cal.App.4th 35, 148 Cal.Rptr.3d 119)
Yu v. Signet Bank/Virginia
(2002, 1st District – 103 Cal.App.4th 298, 126 Cal.Rptr.2d 516)
Yu filed a class action on behalf of California residents against two banks for abuse of process and unfair business practice after the banks filed debt-collection actions in Virginia, their home state. The trial court sustained the banks’ demurrer to a third amended complaint but denied the banks’ concurrent anti-SLAPP motion on the grounds the latter was moot in light of the successful demurrer. The banks appealed. Both parties appealed. On appeal Yu argued that, because the anti-SLAPP motion was filed a year after the original complaint, it was untimely under the anti-SLAPP statute. The appellate court holds that an amended complaint is a “complaint” under the anti-SLAPP statute (which requires that a special motion to strike be filed “within 60 days of the service of the complaint”), and, since the motion in this case was filed within 60 days of service of the third amended complaint, it was timely. In addition, the anti-SLAPP motion is no longer moot, the court concludes, in light of the court’s reversal of the trial court’s ruling on the demurrer. Nevertheless, the court affirms the trial court’s denial of the anti-SLAPP motion but on the grounds that Yu’s claims “have sufficient potential merit to withstand Banks’ anti-SLAPP motion.” The case is interesting because the filing of a collection action in a distant state in effect deprives customers of the opportunity to defend themselves. Nevertheless, the court filing is a protected First Amendment activity under the anti-SLAPP statute, so only a determination that there is a likelihood the plaintiffs might prevail preserves the complaint for abuse of process.
Zhang v. Chu
(2020, 2d District – 46 Cal.App.5th 46, 259 Cal.Rptr.3d 536)
Zhang v. Jenevein
(2019, 2d District – 31 Cal.App.5th 585, 242 Cal.Rptr.3d 800)
Zhao v. Wong
(1996, 1st District – 48 Cal.App.4th 1114, 55 Cal.Rptr.2d 909)
Note:  This opinion was disapproved by the California Supreme Court in Briggs v. Eden Council for Hope and Opportunity.
Zhao sued Wong for slander, alleging that Wong had falsely accused her of murdering his brother in a newspaper article about a coroner’s investigation into the brother’s mysterious death and a contest in probate court over the brother’s will. The trial court granted a special motion to strike the complaint, saying that “if you make a comment about a judicial proceeding, that’s an act in furtherance of a person’s right of petition [or] free speech.” The appellate court reverses, concluding that the brother’s death, although newsworthy, did not rise to the level of a public issue protected by the anti-SLAPP statute.
Zucchet v. Galardi
(2014, 4th District – 229 Cal.App.4th 1466, 178 Cal.Rptr.3d 363)****************************************

Superior Court, Appellate Division – Published Opinions:

O’Neil-Rosales v. Citibank (South Dakota) N.A.
(2017, App.Div.Super.Ct – LA – 11 Cal.App.5th Supp. 1, 217 Cal.Rptr.3d 723)

source

 

Federal SLAPP Cases Decided by U.S. District Courts in California

Opinions in the U.S. District Courts concerning the California Anti-SLAPP Statute (CCP § 425.16):

 

[note:  the list below also includes some non-California cases involving CCP § 425.16]

Alfasigma USA, Inc. v. First Databank, Inc.
United States District Court, N.D. California. August 02, 2019 398 F.Supp.3d 578

Alfasigma USA, Inc. v. First Databank, Inc.
525 F.Supp.3d 1088 – ND Cal 2021

Ayyadurai v. Floor64, Inc.
270 F.Supp.3d 343 – D Mass. 2017

Arenas v. Shed Media US Inc.
881 F.Supp.2d 1181 – CD Cal. 2011

Blatt v. Pambakian
432 F.Supp.3d 1141 – CD Cal. 2020

Brown v. Electronic Arts, Inc.
722 F.Supp.2d 1148 – CD Cal. 2010

Browne v. McCain
611 F.Supp.2d 1062 – CD Cal. 2009

Bulletin Displays, LLC v. Regency Outdoor Advertising, Inc.
448 F.Supp.2d 1172 – CD Cal. 2006

Burnett v. Twentieth Century Fox Film Corp.
229 F.Supp.2d 962 – CD Cal. 2007

Choose Energy, Inc. v. American Petroleum Institute
87 F.Supp.3d 1218 – ND Cal. 2015

Clifford v. Trump
339 F.Supp.3d 915 – CD Cal. 2018

Cline v. Reetz-Laiolo
329 F.Supp.3d 1000 – ND Cal. 2018

Competitive Technologies. v. Fujitsu Ltd.
286 F.Supp.2d 1118 – ND Cal. 2003

This is a very complex case of patent infringement and numerous related causes of action, further complicated by issues of choice of law since the case was transferred from a district court in Illinois. Competitive Technologies filed an anti-SLAPP motion to strike certain counterclaims asserted by Fujitsu. The court concludes that California law does not apply to Fujitsu’s counterclaims.

Condit v. National Enquirer, Inc.
248 F.Supp.2d 945 – ED Cal. 2002

The wife of U.S. Congressman Gary Condit sued the National Enquirer for libel based on statements published in two issues of the weekly publication. Defendant’s motion to strike the complaint under the anti-SLAPP statute is denied on the grounds that the allegedly defamatory statements did not concern a public issue and the plaintiff had demonstrated in her complaint that she could succeed on the merits.

Cox v. Mariposa County
445 F.Supp.3d 804 – ED Cal. 2020

Davis v. Hollins Law
942 F.Supp.2d 1004 – ED Cal. 2013

Dean v. Kaiser Foundation Health Plan, Inc.
562 F.Supp.3d 928 – CD Cal. 2022

Diamond Resorts U.S. Collection Development, LLC v. Pandora Marketing, LLC
500 F.Supp.3d 1104 2020 WL – CD Cal. 2020

Diamond Resorts U.S. Collection Development, LLC v. Pandora Marketing, LLC
541 F.Supp.3d 1020 – CD Cal. 2021

Dickman v. Kimball, Tirey & St. John, LLP
982 F.Supp.2d 1157 – SD Cal. 2013

Drawsand v. F.F. Properties, L.L.P.
866 F.Supp.2d 1110 – ND Cal. 2011

E.D.C. Technologies, Inc. v. Seidel
225 F.Supp.3d 1058 – ND Cal. 12-6-2016

eCash Technologies v. Guagliardo
127 F.Supp.2d 1069 – CD Cal 2000

After defendant registered the domain name “ecash.com”, plaintiff filed federal claims of cyberpiracy, trademark infringement, false designation of origin, and trademark dilution. Defendant filed a counterclaim seeking cancellation of plaintiff’s registration of the “eCash” mark and alleging unfair or unlawful business practices by plaintiff under state law. The court granted plaintiff’s special motion to strike defendant’s state law counterclaims pursuant to the anti-SLAPP statute inasmuch as the counterclaims were based on a letter from plaintiff’s counsel that was a communication related to pending litigation and therefore privileged under Civil Code section 47(b).

Electronic Frontier Foundation v. Global Equity Management (SA) Pty Ltd.
290 F.Supp.3d 923 – ND Cal. 2017

Elem Indian Colony of Pomo Indians of the Sulphur Bank Rancheria v. Ceiba Legal, LLP
230 F.Supp.3d 1146 – ND Cal. 2-2-2017

Fabbrini v. City of Dunsmuir
544 F.Supp.2d 1044 – ED Cal. 2006

Flores v. Emerich & Fike
416 F.Supp.2d 885 – ED Cal. 2006

Plaintiff fruit growers filed a complaint alleging various forms of alter ego liability, fraudulent transfers, and the existence of a racketeering enterprise against the corporate defendants and the law firm and individual attorneys who represented them (Fike defendants). The Fike defendants filed an anti-SLAPP motion to strike several of the claims. The district court found that the section Civil Code 425.17 exemption to the anti-SLAPP statute did not apply because it was strictly a private dispute, and the alleged actions of the Fike defendants did not involve marketing their services nor were representations made to potential consumers or to gain a competitive advantage. The court granted the motion to strike each cause of action because plaintiffs did not show a probability of prevailing on any of their claim.

Four Navy Seals & Jane Doe v. Associated Press
413 F.Supp.2d 1136 – SD Cal. 2005

Freeman v. ABC Legal Services, Inc.
827 F.Supp.2d 1065 – ND Cal. 2011

Friedman v. DirecTV
262 F.Supp.3d 1000 – CD Cal. 2015

Gallagher v. Philipps
563 F.Supp.3d 1048 – SD Cal. 2021

Gamble v. Kaiser Foundation Health Plan, Inc.
348 F.Supp.3d 1003 – ND Cal. 2018

Global Telemedia International, Inc. v. Doe 1
132 F.Supp.2d 1261 – CD Cal. 2001

Several individuals, using pseudonyms, posted remarks about a publicly traded telecommunications company in an Internet chat room. The company brought suit in state court, alleging trade libel, libel per se, interference with contractual relations and prospective economic advantage. Defendants removed the case to federal court. The court granted the defendants’ anti-SLAPP motion, after finding that the company had not satisfied its burden of showing a probability of success on its claims for trade libel and defamation. The court concluded that, given the context of publication and the “colorful and figurative language” of the postings, defendants’ statements about the company could not reasonably be understood to be factual.

Globetrotter Software, Inc. v. Elan Computer Group, Inc. Globetrotter Software, Inc. v. Rainbow Technologies, Inc.
63 F.Supp.2d 1127 – ND Cal 1999

Globetrotter made statements to the market concerning the products of Elan and Rainbow and subsequently sued the two companies. The defendant companies brought a number of state-law counterclaims for damages due to Globetrotter’s statements. Globetrotter filed a special motion to strike the counterclaims under the anti-SLAPP statute. The motion was denied on the grounds that statements by one company regarding the conduct of a competitor do not come within the statute’s protection of Petition Clause conduct.

Gottesman v. Santana
263 F.Supp.3d 1034 – SD Cal. 2017

Hanover Insurance Company v. Fremont Bank
68 F.Supp.3d 1085 – ND Cal. 2014

Harkonen v. Fleming
880 F.Supp.2d 1071 – ND Cal. 2012

Hart v. Larson
232 F.Supp.3d 1128 – SD Cal. 2017

Herring Networks, Inc. v. Maddow
445 F.Supp.3d 1042 – SD Cal. 2020 445 F.Supp.3d 1042

Hutton v. Law Offices of Collins & Lamore
668 F.Supp.2d 1251 – SD Cal. 2009

In re Bohrer
United States Bankruptcy Court, 628 B.R. 676 – SD Cal. 2021

In re Landes
United States Bankruptcy Court, 627 B.R. 144 _ ED Cal. 2021

In re Outlaw Laboratories, LP Litigation
352 F.Supp.3d 992 – SD Cal. 2018

Intel Corporation v. Seven Networks, LLC
562 F.Supp.3d 454 2021 – ND Cal. 2021

Johnson v. Altamirano
418 F.Supp.3d 530 – SD Cal. 2019

Kearney v. Foley & Lardner
553 F.Supp.2d 1178 – SD Cal. 2008

Lauter v. Anoufrieva
642 F.Supp.2d 1060 – CD Cal. 2009

Makaeff v. Trump University, LLC
26 F.Supp.3d 1002 – SD Cal. 2014

Maloney v. T3Media, Inc.
94 F.Supp.3d 1128 – CD Cal. 2015

Mandel v. Hafermann
503 F.Supp.3d 946 – ND Cal 2020

Manufactured Home Communities, Inc. v. San Diego County (“Manufactured II”)
606 F.Supp.2d 1266 – SD Cal. 2009

MCSI, Inc. v. Woods
290 F.Supp.2d 1030 – ND Cal. 2003

Plaintiff sued defendants for multiple causes, including defamation, based on “negative statements” about the company on an Internet forum for discussion of large, publicly traded corporations. Defendant Woods, who had posted the remarks, filed a special motion to strike the complaint against him under the the anti-SLAPP statute. The court denies the motion on the grounds that the remarks did not concern a public issue and therefore are not protected by the statute.

Mello v. Great Seneca Financial Corp.
526 F.Supp.2d 1024 – CD Cal. 2008

Metabolife International, Inc. v. Susan Wornick (“Wornick I”)
72 F.Supp.2d 1160 – SD Cal. 1999

Metabolife claimed that defendants, in statements on a television broadcast, committed defamation, slander, trade libel, and intentional and negligent interference with prospective economic advantage. The trial court grants defendants’ motion to dismiss under the anti-SLAPP statute. It concludes that defendants’ statements are protected by the First Amendment, either because they are true or represent opinion, and thus are covered by the anti-SLAPP statute. Because the court refuses to admit evidence proferred by Metabolife as expert evidence, Metabolife cannot demonstrate a probability of prevailing on its claims, as required by the anti-SLAPP statute. (See the Ninth Circuit Court of Appeals decision in this case.)

Metabolife International, Inc. v. Susan Wornick (“Wornick II”)
213 F.Supp.2d 1220 – SD Cal. 2002

Order granting attorney fees to defendant who prevailed on an anti-SLAPP motion.

National Abortion Federation v. Center for Medical Progress
533 F.Supp.3d 802 – ND Cal. 2021

New.net, Inc. v. Lavasoft
356 F.Supp.2d 1090 – CD Cal. 2004

Parties are Internet software publishers. New.net writes software that is downloaded from the Internet to an individual’s computer without the knowledge or request of the computer owner. Lavasoft provides software that detects such programs and allows the computer owner to remove them. Plaintiff lost its bid for a preliminary injunction to prohibit Lavasoft from including New.net software in its list of removable programs. The court’s denial was based in part on the grounds that Lavasoft, through its software, was engaged in expression protected under the First Amendment. Defendant then filed an anti-SLAPP motion against all state-law claims, which the court granted.

Nicosia v. DeRooy
72 F.Supp.2d 1093 – ND Cal. 1999

Nicosia sued DeRooy for defamation in connection with statements published about Nicosia on DeRooy’s website. Nocosia was agent for the writer Jack Kerouac’s daughter Jan. The court granted a special motion to strike the complaint under the anti-SLAPP law, reasoning that the plaintiff was a limited-purpose public figure subject to the actual malice standard, had failed to plead actual malice with sufficient specificity, and therefore had failed to establish a probability that he would prevail in the case as required by the anti-SLAPP statute.

O’Handley v. Padilla
— F.Supp.3d —- N.D. California 2022

Penrose Hill, Limited v. Mabray
479 F.Supp.3d 840 – ND Cal. 2020

Physician’s Surrogacy, Inc. v. German
311 F.Supp.3d 1190 – SD Cal. 2018

Piping Rock Partners, Inc. v. David Lerner Associates
946 F. Supp. 2d 957 – ND Cal. 2013

Planned Parenthood Federation of America, Inc. v. Center for Medical Progress
214 F.Supp.3d 808 – ND Cal. 2016

Planned Parenthood Federation of America, Inc. v. Center for Medical Progress
402 F.Supp.3d 615 – ND Cal. 2019

PLS.com, LLC v. National Association of Realtors
516 F.Supp.3d 1047 – CD Cal. 2021

Plumleigh v. City of Santa Ana
754 F.Supp.2d 1201 – CD Cal. 2010

Powertech Technology, Inc. v. Tessera, Inc.
872 F.Supp.2d 924 – ND Cal. 2012

Price v. Stossel
590 F.Supp.2d 1262 – CD Cal. 2008

Ramachandran v. City of Los Altos
359 F.Supp.3d 801- ND Cal. 2019

Ray Charles Foundation v. Robinson
919 F.Supp.2d 1054 – CD Cal. 2013
(Reversed by Ninth Circuit on non-anti-SLAPP issues; see 765 F.3d 1109, 1114)

Resolute Forest Products, Inc. v. Greenpeace International
— F.Supp.3d —- – ND Cal. 10-16-2017

Robinson v. Alameda County
875 F.Supp.2d 1029 – ND Cal. 2012

Rogers v. Home Shopping Network
57 F.Supp.2d 973 – CD Cal. 1999

Rogers sued the National Enquirer, alleging libelous statements about her in a published article. The newspaper filed a special motion to strike the complaint under the anti-SLAPP statute. The court determined that the anti-SLAPP statute’s provision for staying discovery was inconsistent with Federal Rule of Procedure 56, and therefore postponed ruling on the motion until after the plaintiff had an opportunity to discover the identity of the purported confidential source of the published statements. “[I]f a defendant desires to make a special motion to strike based on the plaintiff’s lack of evidence, the defendant may not do so until discovery has been developed sufficiently to permit summary judgment under Rule 56. Once the nonmoving party has been given the opportunity to conduct discovery, the special motion can be heard….”

Rouse v. Law Offices of Rory Clark
465 F.Supp.2d 1031 – SD Cal. 2009

Select Portfolio Servicing v. Valentino
875 F.Supp.2d 975 – ND Cal. 2012

Shack v. NBC Universal Media, LLC
467 F.Supp.3d 885 – CD Cal. 2020

Sharper Image Corporation v. Target Corp.
425 F.Supp.2d 1056 – ND Cal. 2006

Defendants brought counterclaims for tortious interference with economic advantage and unfair competition. Plaintiff filed an anti-SLAPP motion. Defendants’ counterclaims were based on emails sent by plaintiff to retailers and media representatives who advertised the product in question, advising them of the lawsuit and asking them not to carry or advertise the product. The district court concluded that because the intended audience of the emails was actual or potential buyers or customers, or persons likely to repeat the statement to or otherwise influence an actual or potential buyer or customer, the counterclaims were exempt from the anti-SLAPP law, pursuant to Civil Code Section 425.17(c).

Shropshire v. Fred Rappoport Co.
294 F.Supp.2d 1085 – ND Cal. 2003

Plaintiffs sued for copyright infringement and other causes of action, including interference with prospective economic advantage, after it terminated defendants’ rights to use a song in a video production. Defendants filed a special (anti-SLAPP) motion to strike the complaints for interference with prospective economic advantage on the grounds that the complaints were based on statements made by defendant in anticipation of litigation with plaintiffs and therefore protected by California’s “litigation privilege” statute. The court concludes that, before it can decide on the motion, it must resolve the factual question whether defendant’s allegedly tortious statements were made “with a good faith belief in a legally viable claim and in serious contemplation of litigation” and therefore plaintiff must be permitted to conduct discovery on this point. Accordingly, the court does not apply the California anti-SLAPP statute’s stay on discovery.

Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.
144 F.Supp.3d 1088 – ND Cal. 2015

Smith v. Levine Leichtman Capital Partners, Inc.
723 F.Supp.2d 1205 – ND Cal. 2010

Sonoma Foods, Inc. v. Sonoma Cheese Factory, LLC
634 F.Supp.2d 1009 – ND Cal. 2007

Stossel V. Meta
No. 21-cv-07385-VKD – ND California 2022

Summit Media LLC v. City of Los Angeles
530 F.Supp.2d 1084 – CD Cal. 2008

Synopsys, Inc. v. Ubiquiti Networks, Inc.
313 F.Supp.3d 1056 – ND Cal. 2018

Thomas v. Los Angeles Times Communications
189 F.Supp.2d 1005 – CD Cal. 2002

Thomas was the subject of a biography on his experiences during World War II. Thomas claimed to be a member of the French resistance and, as an agent of the U.S. Army Counter Intelligence Corps, to have uncovered evidence concerning Nazi concentration camp practices. After publication of the biography, an article critical of Thomas’s claims appeared in the Los Angeles Times. Thomas sued for damages, alleging defamation by implication. Defendants filed a special motion to strike the complaint pursuant to the anti-SLAPP statute. The district court grants the motion on the grounds that it is unlikely Thomas would prevail on the merits of his claim. The court analyzes in detail the Los Angeles Times article to reach the conclusion that it does not provide sufficient evidence of defamation by implication.

Tisdale v. City of Los Angeles
617 F.Supp.2d 1003 – CD Cal. 2009

Tobinick v. Novella
108 F.Supp.3d 1299 – SD Fla 2015

Troy Group, Inc. v. Tilson
364 F.Supp.2d 1149 – CD Cal. 2002

The Troy Group sued Tilson for defamation based on a statement Tilson made to his attorney in a lawsuit against Troy. Tilson filed an anti-SLAPP motion to strike the complaint. The parties disputed whether Tilson’s statement was “in connection with an issue of public interest” as required by the anti-SLAPP statute. The court grants Tilson’s motion on the grounds that the public issue requirement was satisfied and Troy had not demonstrated a probability of prevailing on the merits of its claim.

Tuck Beckstoffer Wines LLC v. Ultimate Distributors
682 F.Supp.2d 1003 – ND Cal. 2010

TYR Sport, Inc. v. Warnaco Swimwear, Inc.
626 F.Supp.2d 1120 – C.D. Cal. 2009

UCP International Company Limited v. Balsam Brands Inc.
420 F.Supp.3d 966 – ND Cal. 2019

United States ex rel. Solis v. Millennium Pharmaceuticals, Inc.
445 F.Supp.3d 786 – ED Cal. 2020

United Tactical Systems, LLC v. Real Action Paintball, Inc.
143 F.Supp.3d 982 – ND Cal. 2015

Weiland Sliding Doors & Windows, Inc. v. Panda Windows & Doors, LLC
814 F.Supp.2d 1033 – SD Cal. 2011

Welker v. Law Office of Daniel J. Horwitz
626 F.Supp.2d 1068 – S.D. Cal. 2009

source

 

Federal SLAPP Cases Decided by the Ninth Circuit Court of Appeals

Batzel v. Smith
9th Circuit, 2003
333 F.3d 1018

 

Smith, a contractor hired by Batzel at her home, saw numerous “older European” paintings on Batzel’s walls and thought he overheard her say she was the granddaughter of one of Hitler’s deputies. He sent an e-mail to an agency involved in tracking down artwork stolen by the Nazis, and the agency posted the e-mail on its website. Batzel sued Smith and the director of the agency, Ton Cremers, for defamation. Cremers filed an anti-SLAPP motion to strike the complaint, arguing that the plaintiff was not likely to prevail on her complaint, as required by the anti-SLAPP statute, because he was exempt from liability for reposting Smith’s e-mail on the Internet under 47 U.S.C. 230 — a part of the 1996 Communications Decency Act that sets limitations on liability under state law for postings on the Internet. The motion was denied by the district court on the grounds that section 230 did not apply to Cremers’ in this case. The 9th Circuit panel holds, as a threshold matter, that denial of an anti-SLAPP motion is an immediately appealable “final decision” in federal court under 28 U.S.C. 1291. “Because California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this court … will do so as well.” (Cf. United States, ex rel. Newsham et al. v. Lockheed Missiles and Space Co. below.) The court disagrees with the district court’s interpretation of section 230, vacates the district court’s denial of the special motion to strike, and remands for further hearings on questions of fact in light of its interpretation of section 230.

Bosley Medical Institute v. Kremer
9th Circuit, 2005
403 F.3d 672

After Kremer became dissatisfied with hair restoration provided by Bosley, he started a website to criticize the service. Because the website address was “BosleyMedical.com,” Bosley sued Kremer for trademark infringement and cybersquatting under the federal Anti-cybersquatting Consumer Protection Act. Kremer filed an anti-SLAPP motion against Bosley’s state-law trademark claims. The district court granted the motion but the appellate court reverses. “An infringement lawsuit by a trademark owner over a defendant’s unauthorized use of the mark as his domain name does not necessarily impair the defendant’s free speech rights.” The court concludes that while a summary judgment motion might have been appropriate, an anti-SLAPP motion was not.

Breazeale v. Victim Services, Inc.
9th Circuit, 2017
878 F.3d 759

CoreCivic v. Candide Group
9th Circuit, 2022
46 F.4th 1136

Davis v. Electronic Arts, Inc.
9th Circuit, 2015
775 F.3d 1172

DC Comics v. Pacific Pictures Corp.
9th Circuit, 2013
706 F.3d 1009

Doe v. Gangland Productions, Inc.
9th Circuit, 2013
730 F.3d 946

EHM Productions, Inc. v. Starline Tours of Hollywood, Inc.
9th Circuit, 2021
1 F.4th 1164

Estate of Tucker ex rel. Tucker v. Interscope Records, Inc.
9th Circuit, 2008
515 F.3d 1019

Fabbrini v. City of Dunsmuir
9th Circuit, 2011
631 F.3d 1299

Falck Northern California Corp. v. Scott Griffith Collaborative Solutions, LLC
9th Circuit, 2022
25 F.4th 763

Graham-Sult v. Clainos
9th Circuit, 2013
738 F.3d 1131

Graham-Sult v. Clainos
9th Circuit, 2014
756 F.3d 724

Greater Los Angeles Agency on Deafness, Inc. v. CNN, Inc.
9th Circuit, 2014
742 F.3d 414

Greensprings Baptist Christian Fellowship Trust v. Cilley
9th Circuit, 2010
629 F.3d 1064

Herring Networks, Inc. v. Maddow
9th Circuit, 2021
8 F.4th 1148

Hilton v. Hallmark Cards
9th Circuit, 2010
599 F.3d. 894

Hyan v. Hummer
9th Circuit, 2016
825 F.3d 1043

Jordan-Benel v. Universal City Studios, Inc.
9th Circuit, 2017
859 F.3d 1184

Kearney v. Foley & Lardner, LLP
9th Circuit, 2009
590 F.3d 638

Keller v. Electronic Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litig.)
9th Circuit, 2013
724 F.3d 1268

Makaeff v. Trump University, LLC
9th Circuit, 2013
715 F.3d 254
736 F.3d 1180

Maloney v. T3Media, Inc.
9th Circuit, 2017
853 F.3d 1004

Manufactured Home Communities, Inc. v. County of San Diego
9th Circuit, 2011
655 F.3d 1171

Manufactured Home Communities., Inc. v. County of San Diego
9th Circuit, 2008
544 F.3d 959

Manzari v. Associated Newspapers Ltd.
9th Circuit, 2016
830 F.3d 881

Metabolife International, Inc. v. Wornick
9th Circuit, 2001
264 F.3d 832

In this lengthy and complex opinion (including a partial dissent) the court reverses in part and affirms in part the judgment of the district court (see district court decision). The district court had ruled that certain expert testimony on behalf of Metabolife could not be admitted; as a result, Metabolife was unable to demonstrate a probability of prevailing on its claims for defamation and trade libel, and therefore the court granted the anti-SLAPP motions of all defendants. The appellate court reverses the district court’s decision to exclude the expert testimony because it found the reasons cited by the district court constitute abuse of discretion. In the court’s view, admitting the expert evidence would not enhance the ability of Metabolife to prevail on its claims against one defendant, a professor of medicine, and therefore the court affirms the decision to grant that defendant’s anti-SLAPP motion. However, as to the other defendants — a TV reporter and her broadcaster — the court reverses the decision to grant their anti-SLAPP motions on the grounds that their edited broadcast of the professor’s statements about Metabolife failed to qualify as “protected speech” under the First Amendment because they deleted crucial qualifiers from the original statement. In its opinion the court rules that the discovery-limiting provision of the anti-SLAPP statute (Section 425.16, subd. g) conflicts with Federal Rule of Civil Procedure 56(f), and therefore cannot be applied in federal court. The dissent points out that, despite the general prohibition, the state statute nevertheless allows a judge to permit discovery “for good cause” and therefore does not conflict with the federal rule.

Mindys Cosmetics, Inc. v. Dakar
9th Circuit, 2010
611 F.3d 590

PLANET AID, INC. v. REVEAL, CENTER FOR INVESTIGATIVE  REPORTING
(August 11, 2022, No. 21-15690)

Planned Parenthood Federation of America, Inc. v. Center for Medical
Progress
9th Circuit, 2018
890 F.3d 828

Price v. Stossel
9th Circuit, 2010
620 F.3d 992

Roberts v. McAfee, Inc.
9th Circuit, 2010
660 F.3d 1156

Safari Club International v. Rudolph
9th Circuit, 2017
862 F.3d 1113

Sarver v. Chartier
9th Circuit, 2016
813 F.3d 891

Thomas v. Fry’s Electronics, Inc.
9th Circuit, 2005
400 F.3d 1206

The U.S. Supreme Court decision in Swierkiewicz v. Sorema (2002) does not undermine the court’s earlier decision in United States, ex rel. Newsham et al. v. Lockheed Missiles and Space Co. (see below) that the California anti-SLAPP motion to strike and entitlement to fees and costs are available in federal court.

Travelers Casualty Insurance Company of America v. Hirsh
9th Circuit, 2016
831 F.3d 1179

United States, ex rel. Newsham v. Lockheed Missiles and Space Co.
9th Circuit, 1999
190 F.3d 963

In a case of first impression the court holds that subdivisions (b) and (c) of the California anti-SLAPP statute do not conflict directly with Federal Rules of Civil Procedure and thus are applicable in federal diversity actions.

Verizon Delaware, Inc. v. Covad Communications Co.
9th Circuit, 2004
377 F.3d 1081

Verizon, as “incumbent local exchange carrier,” had several interconnection agreements with Covad, a competitive carrier. Verizon sued Covad for fraud, alleging that Covad had issued false “trouble tickets” as part of a scheme to reduce its own service costs. Covad asserted counterclaims. The district court granted summary judgment for defendant Covad on Verizon’s claims and summary judgment for Verizon on Covad’s counterclaims. Defendants filed special motions to strike Verizon’s original complaint under California’s anti-SLAPP statute, but the court granted Verizon leave to amend its complaint and deferred ruling on the motions to strike pending receipt of the amended complaint. The court then denied the motions to strike based on an analysis of the amended complaint. Both parties appealed the summary judgments; Covad appealed the denial of the anti-SLAPP motion. The appellate court affirms the district court’s denial of the anti-SLAPP motion on the grounds that “granting a defendant’s anti-SLAPP motion to strike a plaintiff’s initial complaint without granting the plaintiff leave to amend would directly collide with Fed.R.Civ.P. 15(a)’s policy favoring liberal amendment.”

Vess v. Ciba-Geigy Corp.
9th Circuit, 2003
317 F.3d 1097

Plaintiffs filed a class action against a drug manufacturer, the American Psychiatric Assn. (APA), and Children and Adults with Attention-Deficit/Hyperactivity Disorder (CHADD), alleging that they promoted sales of Ritalin (used to treat hyperactivity) in violation of California’s unfair business practice laws. Each defendant filed a motion to dismiss under Federal Rules of Procedure as well as an anti-SLAPP motion. The district court declined to rule on the anti-SLAPP motions before it had ruled on the motions to dismiss, deeming such motions premature. The district court first granted all of the motions to dismiss and then granted all of the anti-SLAPP motions. The appellate court agrees with the district court’s approach to ruling on the motions. It affirms the ruling on the anti-SLAPP motions of APA and CHADD on the grounds that the plaintiffs’ causes of action arise from speech protected by the First Amendment and plaintiffs had not demonstrated a probability of prevailing on their claims as required by the anti-SLAPP statute. With respect to the drug manufacturer, however, because the court reverses the district court’s dismissal of the complaint, it also reverses the grant of that defendant’s anti-SLAPP motion. (See also DuPont Merck Pharm. Co. v. Superior Court, California Court of Appeal, 4th District.)

Zamani v. Carnes
9th Circuit, 2007
491 F.3d 990

Bankruptcy Courts

Restaino v. Bah
U.S. Bankruptcy Appellate Panel of the Ninth Circuit, 2005
321 B.R. 41

Held: California’s anti-SLAPP statute is applicable in bankruptcy cases involving both federal questions and pendant state-law claims. The court agrees with the court in Globetrotter Software v. Elan Computer Group, Globetrotter v. Rainbow Technologies, Inc. (U.S. Dist. Ct. for No. Cal.; see above) that the anti-SLAPP statute is applicable to state-law claims but not to federal questions.

source

 

Lead Article: Application of State Anti-SLAPP Laws in Federal Court

I.  Introduction

Currently, more than 30 states have adopted laws aimed to protect First Amendment rights from so-called “SLAPP” suits.  SLAPP stands for “strategic lawsuits against public participation,” and SLAPP suits are lawsuits intended to silence or suppress free speech and other constitutionally protected activities.  A classic example of a SLAPP suit would be an oil company suing an environmental non-profit for defamation after the non-profit accused the oil company of being a polluter.

Additionally, several states have recently also passed or introduced legislation seeking to expand protections against SLAPP suits.  In New York, a broadened anti-SLAPP statute was enacted on November 11, 2020.  Washington state passed a new anti-SLAPP law on May 21, 2021 (SB 5009), with the state legislatures of Missouri (HB 1151), Kentucky (HB 1321), Indiana (HB 1459), and Iowa (HF 456) also looking to pass new anti-SLAPP legislation.

Conversely, although an increasing number of states have adopted anti-SLAPP laws, federal courts remain split on the issue of whether state anti-SLAPP laws are applicable in federal courts.  A number of federal district and appellate courts have reached inconsistent holdings as to whether pleading requirements of state anti-SLAPP laws conflict with those of the Federal Rules of Civil Procedure.  Because the implications of these inconsistencies are broad and far-reaching, this article analyzes (i) the background of and recent developments relating to California’s anti-SLAPP statute; (ii) the recent adoption and development of anti-SLAPP legislation in other states; and, (iii) the split among federal courts as to the applicability of state anti-SLAPP laws.

 

II.  California’s Anti-SLAPP Statute and Recent Developments

A.  Unique Procedural Mechanisms Available Under California’s Anti-SLAPP Statute

As a means to combat nuisance lawsuits that are intended to chill free speech, state legislatures have introduced legislation offering increased protection from those suits.  California became the first state to introduce anti-SLAPP legislation in 1992, and by far has the most robust body of anti-SLAPP case law.  California’s anti-SLAPP law provides for a “screening mechanism” by which the plaintiff who brings an action arising out of protected speech or petition activity, at the outset of the SLAPP suit, must “make a prima facie showing [verified under oath] which would, if proved at trial, support a judgment in [the plaintiff’s] favor.” Wilcox v. Super. Ct., 27 Cal. App. 4th 809, 823 (1994); Cal. Civ. Proc. Code § 425.16(b)(1).  Specifically, once the moving defendant has demonstrated that the plaintiff’s cause of action arises from “protected” speech or activity, “the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim.”  Kyle v. Carmon, 71 Cal. App. 4th 901, 907 (1999).

This screening process, in effect, functions much like a motion for summary judgment, with the defendant being able to challenge the merits of a plaintiff’s case.  One difference, however, is that the filing of a motion to strike under the anti-SLAPP statute in California automatically stays discovery.  See Hewlett-Packard Co. v. Oracle Corp., 239 Cal. App. 4th 1174, 1185 (2015); Cal. Civ. Proc. Code § 425.16(g). Another difference is that, unlike a motion for summary judgment, an anti-SLAPP motion to dismiss places the burden on a plaintiff to demonstrate that they possess a “legally sufficient claim which is ‘substantiated,’ that is, supported by competent, admissible evidence.”  College Hospital v. Super. Ct., 8 Cal. 4th 704, 718-719 (1994).  If plaintiff is unable to satisfy their burden, then defendant is entitled to dismissal of the SLAPP suit, and an award of the attorneys’ fees and legal costs incurred defending the action.  See Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1121-1123 (1999); Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 644 (1996); Cal. Civ. Proc. Code § 425.16(c).  This “reverse” standard, which  places the burden of proof on the plaintiff is intended to (1) allow defendants to obtain quick dismissals of claims arising out of certain “protected” activities, enumerated in California’s anti-SLAPP statute; and (2) discourage lawsuits filed with the intent to chill free speech (i.e. First Amendment-related conduct) by imposing the threat of significant legal fees and costs required to successfully oppose the motion so early in litigation (as well as the risk of paying for the other party’s legal fees and costs).

In addition, unlike with a motion for summary judgment, a defendant is entitled to an automatic right of appeal for the denial of an anti-SLAPP motion, and a stay of all trial court proceedings affected by the motion.  Hewlett-Packard, 239 Cal. App. 4th at 1185-86.  “This means that however unsound an anti-SLAPP motion may be, it will typically stop the entire lawsuit dead in its tracks until an appellate court completes its review.”  Id. at 1185.  Because of the heightened protections for defendants bringing motions to strike under the anti-SLAPP statute, these motions are subject to potential abuse.  As one appellate court has discussed, the statute provides a “free time-out” from further litigation in Court “by entitling the unsuccessful movant to immediately appeal the denial of such a motion,” even a relatively weak motion “which wholly lacks any merit.” Id. at 1184-85.

B.  Elements of a Motion To Strike Under Section 425.16(b)

California courts apply a two-pronged test in evaluating whether to grant an anti-SLAPP motion to strike.  Under the first prong, defendant must establish that the activity giving rise to a plaintiff’s suit arises from one of the following four specific categories that the California legislature defines as “protected” activity:

  1. Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.
  2. Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other official proceeding authorized by law.
  3. Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
  4. Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

 

If the defendant establishes that a claim arises out of protected activity, then the burden shifts to the plaintiff to demonstrate the claim contains minimal merit.  If the plaintiff does not, the claim will be dismissed.

California courts have broadly construed these areas of protected activity.  For example, in Wilson v. CNN, the California Supreme Court recently observed that “to insulate the exercise of free speech rights against chilling  litigation, the Legislature has defined protected activity to  include not only the act of speaking, but ‘any other conduct in furtherance of the exercise of constitutional speech rights on matters of public interest.’”  Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 893 (2019).  (Interestingly enough, though, on July 29, 2021 the California Supreme Court drew a line between speech, which it considered protected, and actions arising from the speech, which it considered to be unprotected—thereby limiting the scope of § 425.16(b).  Bonni v. St. Joseph Health Sys., 11 Cal. 5th 995, 1026 (2021).)  The breadth of anti-SLAPP statutes across states vary, but like California’s statute, most other anti-SLAPP laws provide defendants with protections for speech made in any forum, as well as a mandatory award of costs and attorney fees for successful defendants.  Most, but not all, states with anti-SLAPP legislation explicitly grant protection for speech made in connection with any issue of public interest or concern.  Moreover, states are increasingly reforming and broadening the scope of anti-SLAPP legislature; New York, for example, recently updated its anti-SLAPP statute to grant protection for “any communications in a public place open to the public or a public forum in connection with an issue of public interest.”

III.  Federal Courts Wrestle with Applicability of Anti-SLAPP Laws

Federal courts are in conflict on whether state anti-SLAPP laws provide primarily substantive, or procedural remedies.  If considered procedural, anti-SLAPP laws would conflict with Federal Rules of Civil Procedure and therefore be inapplicable in federal court.  For more than two decades, the Ninth Circuit has held that the California anti-SLAPP law is primarily substantive and therefore does apply in federal court.  See, e.g., United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999) (noting that California’s anti-SLAPP statute and the Federal Rules “can exist side by side . . .  without conflict”) (quotation omitted).

Recently, however, the Second Circuit held that California’s anti-SLAPP statute did not apply in federal court.  See La Liberte v. Reid, 966 F.3d 79, 87-88 (2d Cir. 2020).  There, the Court held that California’s anti-SLAPP statute was inapplicable in federal court because it conflicts with Federal Rules of Civil Procedure 12 and 56.  Id.  According to the Second Circuit, the question that federal courts must answer in deciding whether state anti-SLAPP statutes apply in federal courts is “whether ‘a Federal Rule of Civil Procedure answer[s] the same question as the [special motion to strike].’”  Id. at 87 (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333  (D.C. Cir. 2015) (alteration in original)).  If so, the Federal Rule governs, unless it violates the Rules Enabling Act.  Id.

The Second Circuit’s La Liberte decision heavily relied on the Eleventh Circuit’s recent holding in Carbone v. Cable News Network, Inc. that the pleading standard set forth by California’s anti-SLAPP statute “abrogates [the already-established federal court pre-trial pleading] entitlement . . . by requiring the plaintiff to establish that success is not merely plausible but probable.”  Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1353 (11th Cir. 2018).  The Carbone decision also found that California’s anti-SLAPP statute conflicted with Federal Rule 56, which permits summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  Id.

The Ninth Circuit, however, remains unpersuaded by the other circuits.  In Clifford v. Trump, the Ninth Circuit held that Texas’s anti-SLAPP law did in fact apply in federal court.  Clifford v. Trump, 818 Fed. App’x 746, 747 (9th Cir. 2020).  The court held that there was no contradiction with state and federal law.  That decision contradicted a recent Fifth Circuit ruling in Klocke v. Watson, where the court  held “that the TCPA does not apply to diversity cases in federal court.”  Klocke v. Watson, 936 F.3d 240, 242 (5th Cir. 2019).  Specifically, the Fifth Circuit’s analysis focused on whether the Federal Rules of Civil Procedure [and Texas’s anti-SLAPP statute] “‘answer the same question’ when each specifies requirements for a case to proceed at the same stage of litigation.”  Id. at 245.  The Fifth Circuit opined that Texas’s anti-SLAPP statute and Federal Rules of Civil Procedure Nos. 12 and 56 do in fact answer the same question, namely “the circumstances under which a court must dismiss a case before trial.”  Id.  The court also found that Texas’s anti-SLAPP statute imposed “additional procedural requirements not found in the federal rules.”  Id.  “Because the [Texas anti-SLAPP statute’s] burden-shifting framework imposes additional requirements beyond those found in [the Federal Rules of Civil Procedure] 12 and 56 and answers the same question as those rules, the state law cannot apply in federal court.”  Id.  The court in Clifford addressed this contradiction, noting “[T]he reasoning of the Fifth Circuit’s opinion cannot be reconciled with our circuit’s anti-SLAPP precedent, compare Newsham, 190 F.3d at 972 (‘[T]here is no indication that [Federal Rules of Civil Procedure] 8, 12, and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims.’) with Klocke, 936 F.3d at 247 (‘Rules 8, 12, and 56 provide a comprehensive framework governing pretrial dismissal and judgment.’).”  Clifford, 818 Fed. App’x at 747.  The court in Clifford further reasoned that they were bound to follow their own precedent – which “required [the court] to apply the [The Texas Citizens Participation Act],” commonly referred to as the Texas anti-SLAPP statute.  Id.

A similar split exists amongst U.S. District Courts, which have, in the past several years, issued a string of inconsistent rulings as to whether state anti-SLAPP statutes apply in federal diversity cases.  Compare Harrington v. Hall Cnty. Bd. of Supervisors, 2016 WL 1274534 (D. Neb. Mar. 31, 2016) (finding a statute providing for attorneys’ fees and costs under Nebraska’s anti-SLAPP statute substantive, and therefore consistent with the Federal Rules of Civil Procedure, thereby allowing for the filing of a motion for attorneys’ fees under the state anti-SLAPP statute), with Unity Healthcare, Inc. v. Cnty. of Hennepin, 308 F.R.D. 537 (D. Minn. 2015) (finding that Minnesota’s anti-SLAPP statute was inapplicable because it conflicted with Federal Rule of Civil Procedure 56), appeal dismissed, 2016 WL 11339506 (8th Cir. 2016).

These split decisions within the federal courts have led to further confusion and continued forum shopping – which courts may find objectionable, principally, because such “shopping” between courts may offend traditional notions of justice and, as a practical matter, deference to particular courts over others may result in a backlog of cases in these same courts, thereby delaying the timely dispensation of justice in non-related cases.

IV.  Conclusion

Amid all of this confusion at the federal level, the U.S. Supreme Court has, surprisingly, refused to weigh in on the controversy.  Rather, the Supreme Court has persistently refused to hear cases involving state anti-SLAPP laws.  See, e.g., Yagman v. Edmondson, 723 Fed. App’x 463 (9th Cir. 2018), cert. denied, 139 S. Ct. 823 (2019); Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 897 F.3d 1224 (9th Cir. 2018), cert. denied, 139 S. Ct. 1446 (2019). As recently as February 2021, the Supreme Court again refused to address the issue, denying review in the Clifford v. Trump case, which presented the conflict between the Ninth Circuit and the Fifth Circuit’s holdings on the applicability of Texas’s anti-SLAPP law in federal diversity actions.  It should therefore be expected that federal courts will continue to issue inconsistent rulings on the matter, leading to further forum shopping, as state legislatures continue to adopt more and broader anti-SLAPP legislature, thereby giving rise to a greater number of anti-SLAPP motions being brought in federal diversity cases.source

 

]]> HOW TO TAKE A DEPOSITION VIRTUALLY https://goodshepherdmedia.net/how-to-take-a-deposition-virtually/ Tue, 25 Mar 2025 19:27:34 +0000 https://goodshepherdmedia.net/?p=19683 HOW TO TAKE A  DEPOSITION VIRTUALLY

 

In California, video depositions are governed by the California Code of Civil Procedure (CCP), specifically sections 2025.330 and 2025.620, which outline the procedures for recording and using video depositions in court.

Rule 2.1040. Electronic recordings presented or offered into evidence

(a) Electronic recordings of deposition or other prior testimony

(1) Before a party may present or offer into evidence an electronic sound or sound-and-video recording of deposition or other prior testimony, the party must lodge a transcript of the deposition or prior testimony with the court. At the time the recording is played, the party must identify on the record the page and line numbers where the testimony presented or offered appears in the transcript.

(2) Except as provided in (3), at the time the presentation of evidence closes or within five days after the recording in (1) is presented or offered into evidence, whichever is later, the party presenting or offering the recording into evidence must serve and file a copy of the transcript cover showing the witness name and a copy of the pages of the transcript where the testimony presented or offered appears. The transcript pages must be marked to identify the testimony that was presented or offered into evidence.

(3) If the court reporter takes down the content of all portions of the recording in (1) that were presented or offered into evidence, the party offering or presenting the recording is not required to provide a transcript of that recording under (2).

(Subd (a) adopted effective July 1, 2011.)

(b) Other electronic recordings

(1) Except as provided in (2) and (3), before a party may present or offer into evidence any electronic sound or sound-and-video recording not covered under (a), the party must provide to the court and to opposing parties a transcript of the electronic recording and provide opposing parties with a duplicate of the electronic recording, as defined in Evidence Code section 260. The transcript may be prepared by the party presenting or offering the recording into evidence; a certified transcript is not required.

(2) For good cause, the trial judge may permit the party to provide the transcript or the duplicate recording at the time the presentation of evidence closes or within five days after the recording is presented or offered into evidence, whichever is later.

(3) No transcript is required to be provided under (1):

(A) In proceedings that are uncontested or in which the responding party does not appear, unless otherwise ordered by the trial judge;

(B) If the parties stipulate in writing or on the record that the sound portion of a sound-and-video recording does not contain any words that are relevant to the issues in the case; or

(C) If, for good cause, the trial judge orders that a transcript is not required.

(Subd (b) amended and relettered effective July 1, 2011; adopted as part of unlettered subd effective July 1, 1988; amended and lettered as subd (a) effective January 1, 2003.)

(c) Clerk’s duties

An electronic recording provided to the court under this rule must be marked for identification. A transcript provided under (a)(2) or (b)(1) must be filed by the clerk.

(Subd (c) amended and relettered effective July 1, 2011; adopted as part of unlettered subd effective July 1, 1988; amended and lettered as subd (a) effective January 1, 2003.)

(d) Reporting by court reporter

Unless otherwise ordered by the trial judge, the court reporter need not take down the content of an electronic recording that is presented or offered into evidence.

Rule 3.1010. Oral depositions by telephone, videoconference, or other remote electronic means

(a) Taking depositions

Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Notice is served with the notice of deposition or the subpoena;

(2) That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it;

(3) Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without notice.

(Subd (a) amended effective January 1, 2022.)

(b) Appearing and participating in depositions

Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition;

(2) The party so appearing makes all arrangements and pays all expenses incurred for the appearance.

(Subd (b) amended effective January 1, 2022; previously amended effective January 1, 2007, and January 1, 2016.)

(c) Deponent’s appearance

A deponent must appear as required by statute or as agreed to by the parties and deponent.

(Subd (c) amended effective January 1, 2022.)

(d) Court orders

On motion by any person, the court in a specific action may make such other orders as it deems appropriate.

Cal. Pen. Code § 1345

The deposition, or a certified copy of it, may be read in evidence, or if the examination was video-recorded, that video-recording may be shown by either party at the trial if the court finds that the witness is unavailable as a witness within the meaning of Section 240 of the Evidence Code. The same objections may be taken to a question or answer contained in the deposition or video-recording as if the witness had been examined orally in court.

California Code, Code of Civil Procedure – CCP § 2025.620

Current as of January 01, 2023 | Updated by FindLaw Staff

At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under Section 2025.410, so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions:

(a) Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness, or for any other purpose permitted by the Evidence Code.

(b) An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing.

(c) Any party may use for any purpose the deposition of any person or organization, including that of any party to the action, if the court finds any of the following:

(1) The deponent resides more than 150 miles from the place of the trial or other hearing.

(2) The deponent, without the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing testimony in open court, is any of the following:

(A) Exempted or precluded on the ground of privilege from testifying concerning the matter to which the deponent’s testimony is relevant.

(B) Disqualified from testifying.

(C) Dead or unable to attend or testify because of existing physical or mental illness or infirmity.

(D) Absent from the trial or other hearing and the court is unable to compel the deponent’s attendance by its process.

(E) Absent from the trial or other hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent’s attendance by the court’s process.

(3) Exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.

(d) Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340.

(e) Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced.

(f) Substitution of parties does not affect the right to use depositions previously taken.

(g) When an action has been brought in any court of the United States or of any state, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the initial action may be used in the subsequent action as if originally taken in that subsequent action. A deposition previously taken may also be used as permitted by the Evidence Code.

Cal. Code Civ. Proc. § 2025.330

Section 2025.330 – Taking testimony
(a) The deposition officer shall put the deponent under oath or affirmation.
(b) Unless the parties agree or the court orders otherwise, the testimony, as well as any stated objections, shall be taken stenographically. If taken stenographically, it shall be by a person certified pursuant to Article 3 (commencing with Section 8020) of Chapter 13 of Division 3 of the Business and Professions Code.
(c) The party noticing the deposition may also record the testimony by audio or video technology if the notice of deposition stated an intention also to record the testimony by either of those methods, or if all the parties agree that the testimony may also be recorded by either of those methods. Any other party, at that party’s expense, may make an audio or video record of the deposition, provided that the other party promptly, and in no event less than three calendar days before the date for which the deposition is scheduled, serves a written notice of this intention to make an audio or video record of the deposition testimony on the party or attorney who noticed the deposition, on all other parties or attorneys on whom the deposition notice was served under Section 2025.240, and on any deponent whose attendance is being compelled by a deposition subpoena under Chapter 6 (commencing with Section 2020.010). If this notice is given three calendar days before the deposition date, it shall be made by personal service under Section 1011.
(d) Examination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code.
(e) In lieu of participating in the oral examination, parties may transmit written questions in a sealed envelope to the party taking the deposition for delivery to the deposition officer, who shall unseal the envelope and propound them to the deponent after the oral examination has been completed. Ca. Civ. Proc. Code § 2025.330

Video Deposition Rules to Follow

During depositions, witnesses provide testimony and are cross-examined during the discovery phase before a case goes to trial. In a video deposition, an audiovisual recording is part of the official record, alongside a transcript produced by a professional court reporter who captures all spoken words in text.

While depositions are structured as part of the research leading to the big event—the trial—in reality, they’re the one-and-only incidence of testimony for most witnesses. According to a study by the American Judges Association, 97% of civil cases end outside of the courtroom, either in dismissal, abandonment, or most commonly, settlement. (1)

With the accessibility of recording technology and the import of depositions, video recording is a wise choice—so let’s look at the video deposition rules you need to be aware of.

Video Depositions under the Federal Rules of Civil Procedure

In the United States, civil cases in federal district courts operate under the Federal Rules of Civil Procedure. There are two rules specific to depositions and their use in court:

Rule 30, Depositions by Oral Examination

Rule 30 covers how depositions are scheduled and taken. Regulations specific to video depositions include:

  • The deposing attorney must indicate the recording method in the notice of deposition (1)
  • Unless the court indicates otherwise, audiovisual recording is an approved method
  • The deposing party is responsible for covering the cost of the recording
  • Any party can arrange and pay for alternate video recording with notice to all parties

To be used as an official record of the proceeding, the court reporter in attendance must:

  • Make a formal introductory statement at the start of each unit of recording (2)
  • Complete the oath or affirmation to the deponent on camera
  • Make a closing statement confirming the deposition’s end

Additionally, Rule 30 states that the “deponent’s and attorneys’ appearance or demeanor must not be distorted through recording techniques”—so no filters, Photoshopping, or other alteration of the original.

Rule 32, Using Depositions in Legal Proceedings

While most civil cases end in negotiated settlements, those that make it to court look to Rule 32 for how depositions are introduced and used at trial. Specific to video depositions, note:

  • If deposition testimony is introduced at trial, any method of recording can be shown (3)
  • If the format is other transcribed text, a deposition transcript must accompany the recording
  • If the testimony is used in a jury trial, and a nonstenographic form (video or audio) is available, any party can order it shown (unless the testimony is used for impeachment)

State Rules of Civil Procedure

Each state follows its own court procedural rules, with 35 having adopted the use of the Federal Rules of Civil Procedure either wholly or with very minimal alteration. (4) The 15 remaining states may have additional regulations that apply more specific guidelines, such as the notification and use of video depositions.

For instance, the California State Bar requires deposing attorneys to state whether they reserve the right to present the recording at trial in the original notice of deposition. (5)

Can You Object to a Video Deposition?

In short—no, not effectively. If a witness, expert witness, or client simply dislikes being videotaped, it doesn’t outweigh the usefulness of a video recording in the eyes of the legal system. A video recording of a deposition is considered the right of any party to a lawsuit.

However, if the deposition notice didn’t indicate that the proceeding would be recorded, then the deposing attorney did not comply with federal Rule 30 (which states they must indicate recording method in the notice of deposition). (2)

In this case, if a videographer shows up, the deponent or their attorney may refuse to allow the recording. If the deposing attorney pushes back, the objecting party can move to terminate the proceeding on the grounds that it’s being conducted in bad faith under Rule 30(d)(3). (2)

The Difference Between a Video and Video Conference Deposition

Remote depositions are common these days but still fall under the rules of in-person legal proceedings—you can’t simply click the “record” button on a video conference.

Essentially, a video conference is a remote deposition, but a video deposition is when a legal videographer captures a professional recording of the proceeding. These videos can be done for both remote or in-person depositions.

U.S. Legal Support: Video Depositions Done Right

Video depositions are useful, common, and allowable under state and Federal Rules of Civil Procedure. There are specific guidelines on how the recording must begin and end, the on-camera swearing-in of the deponent, and providing advance notice that videography will be employed.

Be sure you’re familiar with any specific regulations in your state and know your rights when the opposing counsel deposes your client or witness.

Looking for more information or help in scheduling or preparing for a video deposition?

U.S. Legal Support is an established, nationwide provider serving lawyers and law firms of all types and sizes. We connect you to a network of 5,000+ court reporters and also offer record retrieval, interpreting and translation services, and litigation consulting.

Reach out today to discuss your video deposition and other legal support services. 

 

Sources: 

  1. Brown & Charbonneau, LLP. What Factors Make It Harder To Settle A Civil Case? https://bc-llp.com/factors-make-harder-settle-civil-case/
  2. Cornell Law School. Rule 30. Depositions by Oral Examination. https://www.law.cornell.edu/rules/frcp/rule_30
  3. Cornell Law School. Rule 32. Using Depositions in Court Proceedings. https://www.law.cornell.edu/rules/frcp/rule_32
  4. USLegal. Rules of Civil Procedure. https://civilprocedure.uslegal.com/rules-of-civil-procedure/
  5. Sacramento County Public Law Library. Discovery Depositions. https://saclaw.org/wp-content/uploads/sbs-discovery-depositions.pdf
  6. sourced

 

https://www.ocbar.org/Portals/0/pdf/covid/webinar_042220_handout.pdf

]]> What is Abuse of Process? When the Government Fails Us https://goodshepherdmedia.net/what-is-abuse-of-process-when-the-government-fails-us/ Tue, 04 Feb 2025 05:21:17 +0000 https://goodshepherdmedia.net/?p=14096 What is Abuse of Process?

Abuse of process is the intentional misuse of legal proceedings for a wrongful or unlaProbable cause is defined as the reasonable belief, foundedwful purpose. It can occur in civil or criminal cases

 

Abuse of Process – The Basics and Practicalities

Our legal system is a powerful tool and the ability to use it to redress wrongs is a cherished right of the average American. Even in the 19th Century Americans were famous for enjoying the use of the courts and employing them far more than the average European. Unlike most of the world, our courts are a powerful branch of our State and Federal governments and remain the most vital arena to protect individual liberties. See our articles on American Litigation and Criminal Law. The average American can use these powerful institutions to confront and seek relief against the largest entity and has the same rights to the legal process as the giant corporations-if the fight can be afforded. See our article on Buying Justice.

The downside of such a system is that it can be abused. The turmoil and expense of litigation can cause significant harm in and of itself and may be a weapon to injure another even if the underlying case allegedly justifying the action is not considered viable by the very party bringing it. The case, itself, becomes the tool used to harm another.

That can be actionable but the care of the courts to assure ready access to the courts for all persons creates a tremendous practical burden on the plaintiff to prevail in such an action. They are not impossible to win. They are difficult and this article shall discuss the elements, the usual issues confronted and the practicalities of bringing…or defending…an action for abuse of process.

 

The Basic Elements of the Action:

The term ‘process’ refers to the proceedings in any civil lawsuit or criminal prosecution and usually describes the formal notice or writ used by a court to exercise jurisdiction over a person or property. Such process compels the defending party to appear in court, or comply with an order of the Court. It may take the form of a summons, mandate, subpoena, warrant, or other written demand issued by a court. When one files suit, one normally has a summons issued by the court which compels the defendant to appear within thirty days to contest the matter. See American Litigation.

Abuse of process refers to the improper use of a civil or criminal legal procedure for an unintended, malicious, or perverse reason. It is the malicious and deliberate misuse of regularly issued civil or criminal court process that is not justified by the underlying legal action.

Abuse of process includes litigation actions in bad faith that is meant to delay the delivery of justice. Examples include serving legal papers on someone which have not actually been filed with the intent to intimidate, or filing a lawsuit without a genuine legal basis in order to obtain information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. The determination of what in unfair and wrong is for the court to determine on the individual facts of each case.

It is important to understand that simply because the other party has a weak case does not mean that there was abuse of process, even if that party eventually loses the case. The key elements of abuse of process is the malicious and deliberate misuseof regularly issued civil or criminal court process that is not justified by the underlying legal action, and that the abuser of process is interested only in accomplishing some improper purpose similar to the proper object of the process. Abuse of process is an intentional tort. Abuse of process encompasses the entire range of procedures incident to the litigation process such as discovery proceedings, the noticing of depositions and the issuing of subpoenas. Pellegrino Food Prods. Co. v. City of Warren, 136 F. Supp. 2d 391, 407 (W.D. Pa. 2000).

The key is state of mind and that is one reason such cases may be difficult to prove. Being wrong, being stubborn, indeed, being stupid is not enough. One must intentionally seek to abuse the system. As one client put it, “My problem is that the fellow was too stupid to plot against me. He simply really though his absurd claim was a good one. I wish he had been smart enough to plot against me!”

Lawyers who are proven guilty of intentional abuse of process can be subject to discipline and punishment. Sometimes abuse of process may occur accidentally, such as an honest belief in mistaken facts used to bring a lawsuit against an improper party, but such missteps may be corrected through voluntary measures. In short, once a mistake is discovered, if it is promptly corrected, abuse of process does not lie.

Note, however, that, no claim for abuse of process would lie where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. Al Hamilton Contracting Co. v. Cowder, 434 Pa. Super. 491 (Pa. Super. Ct. 1994).

Cognizable injury for abuse of process is limited to the harm caused by the misuse of process. It does not include harm such as conviction and confinement resulting from the process’s being carried through to its lawful conclusion. Heck v. Humphrey, 512 U.S. 477 (U.S. 1994).

In McGann v. Allen, 105 Conn. 177, 191, 134 A. 810, 815 (1926), the court held that expenses incurred by the plaintiff in defending herself against crimes charged against her were not compensable in a suit for abuse of process, since “damages for abuse of process must be confined to the damage flowing from such abuse, and be confined to the period of time involved in taking plaintiff, after her arrest, to [defendant’s] store, and the detention there.”

The following elements constitute the intentional tort of abuse of process.

  • The malicious and deliberate misuse or of regularly issued civil or criminal court process that is not justified by the underlying legal action.
  • The abuser of process is interested only in accomplishingsome improper purpose similar to the proper object of the process.

A wrongful use of processes such as attachment of property, unjustified arrest, subpoenas to testify, executions on property, unfounded criminal prosecution, and garnishee orders are considered as abuse of process.

A typical example is found at In Drum v. Bleau, Fox & Associates, 107 Cal. App. 4th 1009 (Cal. App. 2d Dist. 2003), defendants represented a client in a legal malpractice action against plaintiff. Judgment was entered in favor of the client, but was stayed. Defendants obtained an execution order from the Court while the stay was in effect. As part of execution, all funds in the plaintiff’s accounts were frozen because of the levy. It was argued by the plaintiff that the defendant purposefully violated the stay for harming him and with the intention to deprive him of his property and legal rights. The court concluded that the defendants were liable for abuse of process.

 

The Need to Win the First Round and Motive:

In order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff has to prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor (2) was brought without probable cause; and (3) was initiated with malice. See Babb v. Superior Court (1971) 3 Cal.3d 841, 845 (92 Cal. Rptr.) 179, 479 P.2d 379; Grant v. Moore (1866) 29 Cal. 644, 648; Albertson v. Raboff (1956) 46 Cal.2d 375, 383 (295 P.2d 405).

The same set of facts may lead to different torts of malicious prosecution and malicious use of process. Franco v. Mudford, 2002 Mass. App. Div. 63, 2002 WL 539065 (2002). In some jurisdictions, the term “malicious prosecution” denotes the wrongful initiation of criminal proceedings, while the term “malicious use of process” denotes the wrongful initiation of civil proceedings.

Motive as an Element:

It is important to note that ulterior motive or purpose required in an abuse of process action can be in the form of coercion to obtain a collateral advantage that is not properly involved in the proceeding. Nienstedt v. Wetzel, 133 Ariz. 348 (Ariz. Ct. App. 1982). However, if the process is used only for the purpose for which it was designed and intended, then mere ill will or spite towards an adverse party in a proceeding will not constitute an ulterior or improper motive Sage International, Ltd. v. Cadillac Gage Co., 556 F. Supp. 381 ( E.D. Mich. 1982).

The question whether malice is an element of abuse of process depends upon the jurisdictions. In some jurisdictions malice is not considered as a necessary element of the tort of abuse of process except where punitive or exemplary damages are sought. In some other jurisdictions, proof of malice is required in order to sustain a claim for abuse of process.

In Montgomery GMC Trucks, Inc. v. Nunn, the plaintiff was the buyer and defendant was the truck dealer. The plaintiff purchased a truck from the defendant that was plagued with problems and was eventually subjected to a garagemans’ lien for repairs. The defendant refused to release the possession of the vehicle to the plaintiff until he paid the cost of repairs, while the plaintiff refused to pay the bill. The plaintiff took the truck while on a test drive and the defendant filed a criminal complaint.

The plaintiff contended that the defendant used the writ of attachment to attach the truck and trailer for the improper purpose of mental and financial draining of plaintiff and also an ulterior motive by coercing plaintiff to pay a false and inflated bill. The plaintiff claimed this to the tort of abuse of process.

The court observed that the defendant did nothing more than pursuing his claim for the repair bill. Moreover, plaintiff admitted that he owed some money to the defendant. The court found that the defendant used legal process to collect an unpaid account secured by a lien on plaintiff’s truck and held that there is no abuse of process.

What makes such cases often difficult is that malice or wrongful intent is an element requiring proof as to the state of mind of the accused. Malice denotes that condition of mind manifested by intentionally doing a wrongful act without just cause or excuse. State v. Burlison, 255 Neb. 190 (Neb. 1998). Malice is evidenced either when the accused acted with a sedate, deliberate mind or committed any purposeful and cruel act without any provocation. Branch v. Commonwealth, 14 Va. App. 836 (Va. Ct. App. 1992).

However, the question whether malice is an element of abuse of process depends upon the jurisdictions. In some jurisdictions malice is not considered as a necessary element of the tort of abuse of process except where punitive or exemplary damages are sought. In other jurisdictions, proof of malice is required in order to sustain a claim for abuse of process.

Actual malice is often not required in an abuse of process claim. The improper purpose element of an abuse of process claim can take the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself. Therefore, it is the use of the process to coerce or extort that is the abuse, and need not be accompanied by any ill will. Swicegood v. Lott, 379 S.C. 346 (S.C. Ct. App. 2008).

In Gause v. First Bank of Marianna, the appellee bank filed a suit against appellant demanding payment on a note. Appellant filed a counterclaim against appellee bank for abuse of process and malicious prosecution. Appellant contended that malice was not an element of a cause of action in abuse of process. The court observed that malice is not an element of abuse of process in the particular case law.

Example: In one case known to the writer, a tenant negotiated to buy a grocery business and obtained an assignment of the lease from the landlord. The parties agreed to extend the lease for three years. The tenant signed the lease for a corporation that became nonexistent two days after execution of the lease. When the lease expired, the parties operated on a month to month lease. The landlord insisted the tenant sign a long term lease, but the tenant declined. The landlord notified the tenant to either sign a long term lease or vacate the property before a certain date and the tenant rejected both the conditions. The landlord filed an action for eviction and the tenant contended that the defendant was not him, but the corporation. The landlord later dismissed his action against the tenant and sued the corporation. The court found the evidence did not support findings of the wrongful use of the eviction process and the existence of malice necessary to show the landlord’s abuse of process.

Role of Probable Cause to Bring Action

Probable cause is defined as the reasonable belief, founded on known facts established after a reasonable pre filing investigation, that a claim can be established to the satisfaction of a court. Weststar Mortg. Corp. v. Jackson, 133 N.M. 114 (N.M. 2002). A want of probable cause need not be established in order to claim for abuse of process. United States v. Chatham, 415 F. Supp. 1214 (N.D. Ga. 1976). However, facts which shows that the person commencing the litigation had knowledge or had reason to know that his/her claim was groundless will be relevant to prove that the process was used for an ulterior purpose Fishman v. Brooks, 396 Mass. 643 (Mass. 1986)].

Need for End of Original Action Favorable to Plaintiff as Requirement

According to common law rule, an action for abuse of process cannot be instituted by a party who is not discharged of guilt. However, favorable termination of prior proceedings is not always considered as an element of a cause of action for abuse of process in all jurisdictions. There can be a favorable settlement or abandonment of the claim. In most jurisdictions, however, favorable termination is required and as an element of practicality, if you failed to win the underlying claim, you will find the Trier of fact seldom impressed with your abuse of process claim.

 

Damages:

It is usually required that a person who brings a claim for abuse of process will have to plead and prove that injury or damages resulted from the irregularity of the process. In such cases, mere vexation or harassment is not regarded as sufficient loss to give rise to the tort Ion Equipment Corp. v. Nelson, 110 Cal. App. 3d 868 (Cal. App. 1st Dist. 1980). Note that punitive damages may lie. See our article on Measurement of Damages.

 

Persons Liable:

Persons using a legal process with malice in order to attain a personal purpose not similar to what it the crux of the litigation are liable for intentional tort of abuse of process. Any person who procures unnecessary and improper initiation of a process by a third party will also be liable for damages for abuse of process. If a non-litigant who actively participate in a civil proceeding that results in an improper initiation of proceeding, s/he can be liable for damages for abuse of process.

The use of criminal process in the court system in an effort to collect a civil debt will support an action for abuse of process. McCornell v. City of Jackson, 489 F. Supp. 2d 605, 610 (S.D. Miss. 200).In an action for abuse of process, the injured person has a remedy against anyone who intentionally procures, participate in, aid, or abet the abuse of process. Anyone who advises or consents to, adopts or ratifies the abusive acts will also liable as joint tortfeasors.

IMMUNITY OF JUDICIAL OFFICERS

A judicial officer is generally exempted from civil liability for abuse of process if:

  • The jurisdiction of the officer is complete and attaches to the person and the subject matter in connection with the alleged illegal acts that are committed;
  • The officer acts within the scope of his/her jurisdiction and in a judicial capacity.

However, a judicial officer can be held liable for abuse of process if the officer acts without any jurisdiction and commits the abuse while acting under the pretense of his/her official capacity. In Osbekoff v. Mallory, 188 N.W.2d 294 (Iowa 1971), an owner’s vehicle was involved in an accident which was driven by another person. The owner appeared before the mayor who was acting in his role as magistrate, to answer certain criminal charges. The mayor ordered that the possession of the owner’s vehicle will be retained by the mayor until the owner pays off certain civil debts. The owner filed an action against the mayor alleging abuse of process.

The court observed that the mayor was not judicially immune from the owner’s lawsuit. The owner’s presence in the mayor’s court to answer to a criminal charge did not give the mayor any jurisdiction to hear and determine the owner’s property rights in the vehicle.

ATTORNEYS?

An attorney is protected from the liability for defamation that occurs during a judicial proceeding. However, such protection may not provide an attorney with an absolute defense to liability for abuse of process. Alexandru v. Dowd, 79 Conn. App. 434 (Conn. App. Ct. 2003). Therefore, an attorney can be made liable for damages for abuse of process for acts that includes personal acts, or acts of others instigated and carried on by the attorney. Lambert v. Breton, 127 Me. 510 (Me. 1929).

A plaintiff has to establish that the alleged misconduct resulted primarily from the attorney’s ulterior motive or malice to state a claim for abuse of process against an attorney. Journeymen, Inc. v. Judson, 45 Ore. App. 249 (Or. Ct. App. 1980)

A mere institution of legal action by an attorney will not constitute abuse of process, even it is done with an improper purpose or motive. However, if it is proved that the attorney performed some additional act which is not proper in the regular prosecution of the proceedings, then the attorney can be held liable of abuse of process. Epps v. Vogel, 454 A.2d 320 (D.C. 1982)

 

Practicalities:

We often receive calls from outraged victims of our judicial system who, after spending tens or hundreds of thousands of dollars winning a case, see that the cost benefit did not justify the exercise and also realized they had no choice on spending the money since they were sued. Often they comment that the other side must have known that their case was nonsense and that they should be liable for all the fees incurred…doesn’t abuse of process apply?

First, attorney fees can be awarded to the prevailing party if the right homework was done in the contractual setting. See our article The Acid Test Clause. Planning for the conflicts that are inevitable in the world of business requires planning for the cost of legal conflict.

More importantly, the right to use our courts is jealously guarded by the courts and all judges and juries know that someone must lose in every case brought. Simply because you win does not mean abuse of process arose and you will need additional powerful evidence to achieve a good chance for prevailing in that cause of action.

Most successful cases now derive from access to documentation, such as e mail admissions in which a party admits knowing their case is groundless but states they will continue to “punish” the other side. See Measurement of Damages. Defendants sometimes make stupid admissions to third parties or act so outrageously that such evidence may be developed. But the simple fact is that bringing an abuse of action case is difficult and one must overcome the initial reaction of the courts that one is seeking to ban access to the courts or punish someone simply for losing the case. One must have effective evidence of inappropriate motivation…usually an admission…before one can have confidence in the case. Do not confuse your victory in the case with suddenly having a cause of action for abuse of process against the loser.

That said, there are those who see the courts as games and the use of the process as a tool to injure others not due to the verdict possible but due to the process itself. It is akin to a blocker in football who seeks to harm the other player, not to block the player out of the way of a running back. If it can be proven damages may lie. And if you are a potential defendant who has just lost a case and are worried about facing that danger, if your motives were simply to present your case and seek the relief sought, then you probably are not in peril. They remain difficult cases to win. J

source

What is Abuse of Process? – When the Government Fails Us 

An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing or perverting regularly issued court process (civil or criminal) not justified by the underlying legal action. In common law it is classified as a tort distinct from the intentional tort of malicious prosecution. It is a tort that involves misuse of the public right of access to the courts. In the United States it may be described as a legal process being commenced to gain an unfair litigation advantage.

The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings. Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution. Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of “process” considered to be capable of abuse

abuse of process

Abuse of process is a common law tort that involves the misuse of legal process(es) for an ulterior purpose. Abuse of process is one of several actionable offenses aimed at discouraging bad-faith litigation attempts. Indeed, courts hold the authority to sanction parties for bringing frivolous action, and parties also have a right to action under the claim of malicious prosecution.

Generally, the elements for abuse of process are: (1) the use of an illegal or improper use of process; (2) an ulterior motive or improper purpose; and in some jurisdictions (3) harm to a litigant. For the purposes of abuse of process, an arbitration proceeding is a judicial proceeding. Abuse of process has been described as misusing a “criminal or civil process against another party for a purpose different than the proceeding’s intended purposes” and thereby causing the party damages (e.g., arrest, seizure of property, or economic injury).

A classic case of abuse of process entails an attempt by a plaintiff to coerce the defendant to do some collateral thing which they could not be legally and regularly compelled to do. For example, in a case where a former employer sought to bring criminal charges to its employee to recover stolen money, while knowing that the employee was not responsible for the theft, the court held the employer liable for abuse of process for initiating criminal charges while knowing that the charges were unsupported by probable cause.

In regard to defenses to abuse of process, there is disagreement among jurisdictions on whether good-faith reliance on an attorney’s advice in bringing action serves as a complete defense. Still, attorneys who bring the improper process can be held liable to the damaged party as well.  source

Distinct from malicious prosecution

A cause of action for abuse of process is similar to the action for malicious prosecution in that both actions are based on and involve the improper use of the courts and legal systems. The primary difference between the two legal actions is that malicious prosecution concerns the malicious or wrongful commencement of an action, while, on the other hand, abuse of process concerns the improper use of the legal process after process has already been issued and a suit has commenced. In abuse of process, the legal process is misused for some purpose which is considered improper under the law. Thus technically, the service of process itself—in the form of a summons—could be considered abuse of process under the right circumstances, e.g. fraudulent or malicious manipulation of the process itself, but in malicious prosecution, the wrongful act is the actual filing of the suit itself for improper and malicious reasons. The three requirements of malice, lack of probable cause in the issuance of the process, and a termination of the prior proceeding favorable to the plaintiff, are essential elements for malicious prosecution. Most jurisdictions do not require any of these three elements in order to make out a prima facie case for abuse of process.

 

READ UP MORE….. on Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings ]]> Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment https://goodshepherdmedia.net/introducing-text-email-digital-evidence-in-california-courts/ Fri, 29 Mar 2024 22:52:08 +0000 https://goodshepherdmedia.net/?p=2098

Introducing Digital Evidence in California State Courts

A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

In order to introduce documentary and electronic evidence obtained in compliance with California Electronic Communication Privacy Act (Penal Code §§ 1546.1 and 1546. 2) in court, it must have four components:

  1. it must be relevant.
  2. it must be authenticated.
  3. its contents must not be inadmissible hearsay; and
  4. it must withstand a “best evidence” objection.

If the digital evidence contains “metadata” (data about the data such as when the document was created or last accessed, or when and where a photo was taken) proponents will to need to address the metadata separately, and prepare an additional foundation for it.

Relevance of Evidence

 

Only relevant evidence is admissible. (Evid. Code, § 350.) To be “relevant,” evidence must have a tendency to prove or disprove any disputed fact, including credibility. (Evid. Code, § 210.) All relevant evidence is admissible, except as provided by statute. (Evid. Code, § 351.)

For digital evidence to be relevant, the defendant typically must be tied to the evidence, usually as the sender or receiver. With a text message, for example, the proponent must tie the defendant to either the phone number that sent, or the phone number that received, the text. If the defendant did not send or receive/read the text, the text-as-evidence might lack relevance, one must prove that the device used was in the hands of the person being accused. In addition; evidence that the defendant is tied to the number can be circumstantial. And evidence that the defendant received and read a text also can be circumstantial.

Authenticate Evidence
“I Thought I Could Avoid Tech By Choosing A Job for Non Techies…. Couldn’t Escape the Tech Crush”

Theories of admissibility include:

  • Direct evidence of a crime
  • Circumstantial evidence of a crime
  • Identity of perpetrator
  • Intent of perpetrator
  • Motive
  • Credibility of witnesses
  • Impeachment
  • Negates or forecloses a defense
  • Basis of expert opinion
  • Lack of mistake

Under Evidence Code 352 EC, even if the evidence is relevant and admissible, a judge may exclude it if they believe it would be confusing or misleading or if its admission could unfairly prejudice the jury against the defendant.

 

 

 

Introducing Documentary and Electronic Evidence

Authentication of Evidence

To “authenticate” evidence, you must introduce sufficient evidence to sustain a finding that the writing is what you say it is. (Evid. Code, § 1400 (a).) You need not prove the genuineness of the evidence, but to authenticate it, you must have a witness lay basic foundations for it. In most cases you do this by showing the writing to the witness and asking, “what is this?” and “how do you know that?” It is important to note that the originator of the document is not required to testify.
(Evid. Code, § 1411.) The proponent should present evidence of as many of the grounds below as possible. However, no one basis is required. Additionally, authentication does not involve the truth of the document’s content, rather only whether the document is what it is claimed to be.

(City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 411-412.) Digital evidence does not require a greater showing of admissibility merely because, in theory, it can be manipulated. Conflicting inferences go to the weight not the admissibility of the evidence.

(People v. Goldsmith (2014) 59 Cal. App.258, 267) In Re KB (2015) 238 Cal.App.4th 989, 291-292 [upholding red light camera evidence].)

Goldsmith superseded People v. Beckley (2010) 185 Cal. App.4th 509, which required the proponent to produce evidence from the person who took a digital photo or expert testimony to prove authentication. Documents and data printed from a computer are considered to be an “original.” (Evid. Code 255.) Printouts of digital data are presumed to be accurate representation of the data.

(Evid Code §§ 1552, 1553.) However, that  resumption can be overcome by evidence presented by the opposing party. If that happens, the proponent must present evidence showing that by a preponderance, the printouts are accurate and reliable.

(People v. Retke (2015), 232 Cal. App. 4th 1237 [successfully challenging red light camera data].)

A.  You can authenticate documents by:

  • Calling a witness who saw the document prepared. (Evid. Code, § 1413.)
  • Introducing an expert handwriting comparison. (Evid. Code, § 1415.)
  • Asking a lay witness who is familiar with the writer’s handwriting to identify the handwriting. (Evid. Code, § 1516.)
  • Asking the finder of fact (i.e. the jury) to compare the handwriting on the document to a known exemplar. (Evid. Code, § 1470.)
  • Showing that the writing refers to matters that only the writer would have been aware. (Evid. Code, § 1421.)
  • Using various presumptions to authenticate official records with an official seal or signature. (Evid. Code, § 1450-1454.) Official records would include state prison records, Department of Motor Vehicle documents or documents filed with the Secretary of State. There is a presumption that official signatures are genuine.  (Evid. Code, § 1530, 1453.)
  • Any other way that will sustain a finding that the writing is what you say it is. The Evidence Code specifically does not limit the means by which a writing may be authenticated and proved. (Evid. Code, § 1410; See also People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 [rap lyrics authenticated in gang case even though method of authentication not listed in Evidence Code].)SECTION 1401.
    (a) Authentication of a writing is required before it may be received in evidence.(b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.

B.     Common ways to authenticate email include:

  • Chain of custody following the route of the message, coupled with testimony that the alleged sender had primary access to the computer where the message originated.
  • Security measures such as password-protections for showing control of the account. (See generally, People v. Valdez (2011) 201 Cal.App.4th 1429.)
  • The content of the email writing refers to matters that only the writer would have been aware.
  • Recipient used the reply function to respond to the email; the new message may include the sender’s original message.
  • After receipt of the email, the sender takes action consistent with the content of the email.
  • Comparison of the e-mail with other known samples, such as other admitted e-mails.
  • E-mails obtained from a phone, tablet or computer taken directly from the sender/receiver, or in the sender/receiver’s possession.

In the majority of cases a variety of circumstantial evidence establishes the authorship and authenticity of a computer record. For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) . See also, Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241F.R.D. 534, 546 [seminal case law on authenticating digital evidence under F.R.E.].)

C. Common ways to authenticate chat room or Internet relay chat (IRC) communication include:

  • Evidence that the sender used the screen name when participating in a chat room discussion.
  • For example, evidence obtained from the Internet Service Provider that the screen name, and/or associated internet protocol (IP address) is assigned to the defendant or evidence circumstantially tying the defendant to a screen name or IP address.
  •  Security measures such as password-protections for showing control of the account of the sender and excluding others from being able to use the account. (See generally, People v. Valdez (2011) 201 Cal.App.4th 1429.)
  • The sender takes action consistent with the content of the communication.
  • The content of the communication identifies the sender or refers to matters that only the writer would have been aware
  • The alleged sender possesses information given to the user of the screen name (contact information or other communications given to the user of the screen name).
  •  Evidence discovered on the alleged sender’s computer reflects that the user of the computer used the screen name. (See U.S. v. Tank (9th Cir. 2000) 200 F.3d 627.)
  •  Defendant testified that he owned account on which search warrant had been executed, that he had conversed with several victims online, and that he owned cellphone containing photographs of victims, personal information that defendant confirmed on stand was consistent with personal details interspersed throughout online conversations, and third-party service provider (Facebook) provided certificate attesting to chat logs’ maintenance by its automated system. (U.S. v. Browne (3d Cir. Aug.25, 2016) 2016 WL 4473226, at 6.)

In the majority of cases it is a variety of circumstantial evidence that provides the key to establishing the authorship and authenticity of a computer record. For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

D. Common ways to authenticate social media postings include:

  • Testimony from a witness, including a police officer, with training and experience regarding the specific social media outlet used testified about what s/he observed. (In re K.B. (2015) 238 Cal.App.4th 989.) What is on the website or app, at the time the witness views it, should be preserved in a form that can be presented in court.
  • Evidence of social media postings obtained from a phone, tablet or computer taken directly from the sender/receiver, or in the sender/receiver’s possession.
  • Testimony from the person who posted the message.
  • Chain of custody following the route of the message or post, coupled with testimony that the alleged sender had primary access to the computer where the message originated.
  • The content of the post refers to matters that only the writer would have been aware, publicly broadcasted writings (web post that anyone can copy and paste would not fall under this).
  • After the post on social media, the writer takes action consistent with the content of the post.
  • The content of the post displays an image of the writer. (People v. Valdez (2011) 201 Cal.App.4th 1429.)
  •  Other circumstantial evidence including that the observed posted images were later recovered from suspect’s cell phone and the suspect was wearing the same clothes and was in thesame location that was depicted in the images. (In re K.B. (2015) 238 Cal.App.4th 989.)
  •  Security measures for the social media site such as passwords-protections for posting and deleting content suggest the owner of the page controls the posted material. (People v. Valdez (2011) 201 Cal.App.4th 1429.)

In the majority of cases it is a variety of circumstantial evidence that provides the key to establishing the authorship and authenticity of a computer record. “Mutually reinforcing content” as well as “pervasive consistency of the content of the page” can assist in authenticating photographs and writings. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1436.) For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) For examples of sufficient circumstantial evidence authenticated social media posts see, Tienda v. State (Tex. Crim. App. 2012) 358 S.W.3d 633, 642; Parker v. State (Del. 2014) 85 A.3d 682, 687. Contrast, Griffin v. State (2011) 419 Md. 343, 356–359.

E. Common ways to authenticate web sites include:

  • Testimony from a witness, including a police officer about what s/he observed. (See In re K.B. (2015) 238 Cal.App.4th 989.) What is on the website or app, at the time the witness views it, should be preserved in a form that can be presented in court.
  • Testimony from the person who created the site.
  • Website ownership/registration. This is a legal contract between the registering authority (e.g.

Network Solutions, PDR Ltd, D/B/A PublicDomainRegistry.com, etc.) and the website owner, allowing the registered owner to have total dominion and control of the use of a website name (domain) and its content. (See People v. Valdez (2011) 201 Cal.App.4th 1429 [password protection suggest the owner of the page controls the posted material].) It may be possible to admit archived versions of web site content, stored and available at a third party web site (See https://archive.org/web/ [Wayback Machine].) First, it may be authenticated by a percipient witness who previously saw or used the site. It may also be possible to obtain a declaration or witness to testify to the archive. (See e.g. Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL 2367740, at 16 (N.D.Ill. Oct.15, 2004) [analyzing admissibility of the content  of an achieved website].) The underlying challenge for web sites in not the authentication of the site; rather the content or hearsay material contained therein.

In St. Clair v. Johnny’s Oyster & Shrimp, Inc. (S.D.Tex.1999) 76 F.Supp.2d 773, 774-75 the court noted that “voodoo information taken from the Internet” was insufficient to withstand motion to dismiss because “[n]o web-site is monitored for accuracy” and “this so-called Web provides no way of verifying the authenticity” of information plaintiff wished to rely on. (See also Badasa v. Mukasey (8th Cir. 2008) 540 F.3d 909 [Nature of Wikipedia makes information from the website unreliable].) However, at noted in Section III Hearsay, the contents of the web site could be admitted as an operative fact or under a number of exceptions including an admission of a party opponent.

F. Authenticating Texts:

A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

A text message may be authenticated “by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing” (Evid.Code, § 1421), or by any other circumstantial proof of authenticity (Id., § 1410).

As of August 2016, there are no published California cases that specifically discuss what is required for authenticating a text message. Unpublished California opinions are consistent with the rule set forth above for authenticating e-mails and chats through a combination of direct and circumstantial evidence based on the facts of the case. Because of the mobile nature of smart phones, the proponent must take care to tie the declarant to the phone from which texts were seized or to the phone number listed in records obtained from the phone company. Often this done through cell phone records or the phone being seized from the defendant, his home or car or other witnesses testifying that this was how they communicated with the defendant.

Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:

Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:

  • (People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.)
  • Victim testified he knew the number from which text was sent because Defendant told him the number. The contents of the texts referred to victim as a snitch. The defendant called the victim during the course of the text message conversation. [(Butler v. State, 459 S.W. 3d 595 (Crim. Ct App. Tx. April 22, 2015].)
  • Testimony of records custodian from telecommunications company, explaining how company kept records of actual content of text messages, the date and time text messages were sent or received, and the phone number of the individuals who sent or
  • received the messages, provided proper foundation for, and sufficiently authenticated, text messages admitted into evidence in trial on armed robbery charges. (Fed.Rules Evid.Rule 901(a), U.S. v. Carr (11th Cir. 2015) 607 Fed.Appx. 869.)
  • Ten of 12 text messages sent to victim’s boyfriend from victim’s cellular telephone following sexual assault were not properly authenticated to extent that State’s evidence did not demonstrate that defendant was author of text messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
  • Murder victim’s cell phone recovered from scene of crime. Forensic tools used on phone recovered texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
  • Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e‑mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e‑mail messages. (People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished].)
  • “knowingly allowing a witness to testify falsely.” (People v. Pike (1962) 58 Cal.2d 70, 97, [22 Cal. Rptr. 664, 372 P.2d 656].) The inquirer asks us to assume that disclosure of the perjured testimony to the court would so adversely reflect on the client’s credibility that the court could “reasonably be expected to render an adverse decision.“

ATTORNEY’S DUTY TO THE COURT

For the attorney to proceed with trial without taking further action raises the question whether the attorney has implicitly but intentionally consented to a deception upon the court. (Bus. & Prof. Code, 6128.) It also raises the question whether the attorney s silence and inaction is “consistent with truth” or an attempt to “mislead the judge… by an artifice of false statement of [material] fact.” (Bus. & Prof. Code, 6068, subd. (d).)

Active misrepresentations by an attorney to opposing counsel by deliberately failing to state a material fact “falls short of the honesty and integrity required of an attorney at law in the performance of his professional duties.” (Coviello v. State Bar (1955) 45 Cal.2d 57, 65-66 [286 P.2d 357].) An attorney’s active representations to a judge, accompanied by deliberate failure to disclose a material fact, is similarly reprehensible. But, in this case, the attorney is faced with decisions about how to proceed immediately after his/her discovery of the perjured testimony. The attorney has not yet taken the step of making any further representations while deliberately concealing the perjury.

It is our opinion, under the circumstances of this case, that the attorney may not remain silent and is required to take action to ensure that he/she does not give his/her implicit consent to the deception. Silence and inaction would not be consistent with truth and would constitute, albeit indirectly, an attempt to mislead the judge by an artifice, to wit, the client’s false testimony of a material fact. “An attorney who attempts to benefit his/her client through the use of perjured testimony may be subject to criminal prosecution (Pen. Code, 127) as well as severe disciplinary action.” (In re Jones (1930) 208 Cal. 240, 242 [280 P.2d 964].) (In re Branch (1969) 70 Cal.2d 200, 210-211, [74 Cal. Rptr. 238, 449 P.2d 174].) But the attorney must speak and act consistently with his/her duties to his/her client.

Opinions of the American Bar Association are not precedential guides for professional conduct of members of the California bar. (CAL 1983-71.) But they are helpful in suggesting alternative courses of conduct. ABA Formal Opinion 287 (June 27, 1953) considered the case of an attorney who secured a divorce for a client who later informed the attorney that he/she had committed perjury in a deposition in securing the divorce. The opinion held that the attorney was precluded from revealing the perjury to the court, but that the attorney should “urge his client to make the disclosure [to the court]” and if he/she refuses to do so “should have nothing further to do with him” but the attorney “should not disclose the facts to the court.” As we note below, this conclusion neglects to consider the implications of persuading the client to make disclosure to the court. It is also inapposite because it does not involve perjury committed and known to the attorney in the midst of trial. But it does suggest that withdrawal of representation by the attorney may be an appropriate course of conduct.

The Bar Association of San Francisco Legal Ethics Committee has considered the duties of an attorney whose client refused to disclose the existence of community assets during the course of a domestic relations matter. (SF Opinion 1977-2.) The Committee opined:

“In most cases the client’s refusal to disclose the existence of community assets constitutes fraud. However, since the client usually discloses this information in confidence, the attorney is under conflicting duties to maintain the confidentiality of his client’s communication and, on the other hand not to suppress the fraud or maintain his deliberate silence. Therefore, the attorney should withdraw from his representation of the client, and his failure to withdraw is a proper subject for disciplinary proceedings.”

But this opinion did not address the question of an attorney’s obligation to withdraw in the midst of trial. The domestic relations matter had not yet reached the trial stage so that, as a practical matter, withdrawal of representation would not severely prejudice the client. In the instant case, the inquirer has stated, and we accept as true, that withdrawal would result in the client’s losing his/her case.

 

But the attorney may have a duty to withdraw from the case. Rule 2-111(B)(2), Rules of Professional Conduct mandates that he/she withdraw when:

“He knows or should know that his continued employment will result in a violation of these Rules of Professional Conduct [which includes Rule 7-105] or of the other State Bar Act [which includes Bus. & Prof. Code, 6068, 6128].” source

Rule 3.3: Candor toward the tribunal

Rule 3.3(a)(1)] provides that a lawyer shall not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Rule 3.3(a)(3) (if lawyer has knowledge of client or client-witness perjury, the duty to take remedial measures includes, “if necessary, disclosure to the tribunal.”)

The key to prevent criminal and civil negligence is to withdraw without disclosing the perjured testimony an attorney may remove themselves from a case or request dismissal of his cause of actions once he realizes the perjury. People v. Brown (1988) 203 Cal.App.3d 1335, 1339- 1340, fn. 1 [250 Cal.Rptr. 762]. See also, Cal. State Bar Formal Opn. No. 2015-192 (attorneys may disclose to the court only as much as reasonably necessary to demonstrate the need to withdraw and without violating the duty of confidentiality)

Attorney’s statutory duties of candor are found in Business and Professions Code sections 6068(b) and (d), 6106 and 6128(a) discussed in scenario #2. Attorney’s ethical duty of candor is found in rule 3.3(a)(3). Given Attorney’s knowledge that Witness has given materially false testimony, this rule requires Attorney to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6.”

An attorney violates the duty of candor, even where the fabrications are the work of another, if the attorney, after learning of their falsity, continues to assert their authenticity. In the Matter of Temkin (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 321; Olguin v. State Bar (1980) 28 Cal.3d 195, 198-200 [167 Cal.Rptr. 876].

Rule 3.4 Fairness to Opposing Party and Counsel (g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a subjective opinion as to the guilt or innocence of an accused

Rule 4.1 Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly:* (a) make a false statement of material fact or law to a third person;* 

Rule 8.4 outlines what constitutes professional misconduct

Rule 9.4 states “In addition to the language required by Business and Professions Code section 6067, the oath to be taken by every person on admission to practice law is to conclude with the following:  ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’ ”

yes, you can sue your lawyer for lying. Direct lying to the courts that would lead to harm or have harmed equate to malpractice.

Penal Code 118 PC – Perjury is defined as testimony under oath which is “willfully” false on a “material” matter. California Penal Code section 118. “Materiality” means a false statement that “could probably influence the outcome of the proceeding.”
People v. Rubio (2004) 121 Cal.App.4th 927, 933 [17 Cal.Rptr.3d 524].

California Penal Code 126 states that perjury is punishable by imprisonment for two, three, or four years under subdivision (h) of Section 1170. This section is part of Chapter 5, which is about perjury and subornation of perjury

Perjury is defined in California Penal Code section 118: “Every person who, having taken an oath that he will testify… truly before any competent [court]… wilfully and contrary to such oath, states as true any material matter which he knows to be false… is guilty of perjury.”

Perjury is a felony. (Pen. Code, 126.) The perjurer’s lack of knowledge of materiality is no defense to the crime. (Pen. Code, 123.)

The first duty arises under Business and Professions Code section 6068, subdivision (e) which provides that it is the duty of a lawyer:

“To maintain inviolate the confidence and at every peril to himself to preserve the secrets, of his client.”

The second duty arises under Business and Professions Code section 6128 which provides that an attorney is guilty of a crime who:

“(a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.“

This second duty is also reflected in other provisions of the Business and Professions Code and Rules of Professional Conduct.

“It is the duty of an attorney to… maintain the respect due to the courts of justice and judicial officers.” (Bus. & Prof. Code, 6068, subd. (b).)

“It is the duty of an attorney to… employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of law or fact.” (Bus. & Prof. Code, 6068, subd. (d).) (See also Rule of Professional Conduct 7-105 [which restates in pertinent part Bus. & Prof. Code, 6068, subd. (d)].)

This scenario concerns an attorney’s duty of candor to the court, found in rule 3.3 (“Candor Toward the Tribunal.”) and Business and Professions Code section 6068. The former provides, in part, “A lawyer shall not: . . . offer evidence the lawyer knows to be false.”

Business and Professions Code section 6068(b) and (d) likewise provides, “It is the duty of an attorney . . . (b) To maintain the respect due to the courts of justice and judicial officers. . . . [and] (d) To employ . . . means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

Correspondingly, Business and Professions Code section 6106 proscribes “the commission of any act involving, moral turpitude, dishonesty or corruption.” In addition, Business and Professions Code section 6128(a) provides: “Every attorney is guilty of a misdemeanor who
either: (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” It is well-established in case law, as well, that “[a]n attorney who attempts to benefit his client through the use of perjured testimony may be subject to criminal prosecution … as well as severe disciplinary action.” In re Branch (1969) 70 Cal.2d 200, 211 [74 Cal.Rptr. 238].

BPP Code § 6068(d) provides it is the duty of an attorney: (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

A fair and impartial trial is a fundamental aspect of the right of accused persons not to be deprived of liberty without due process of law. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7, subd. (a); see, e.g., Tumey v. Ohio (1927) 273 U.S. 510 [71 L. Ed. 749, 47 S. Ct. 437, 50 A.L.R. 1243]; In re Murchison (1955) 349 U.S. 133, 136 [99 L. Ed. 942, 946, 75 S. Ct. 623]; People v. Lyons (1956) 47 Cal. 2d 311, 319 [303 P.2d 329]; In re Winchester (1960) 53 Cal. 2d 528, 531 [2 Cal. Rptr. 296, 348 P.2d 904].)

People v. Lyons, supra, 47 Cal.2d at p. 318; People v. Talle (1952) 111 Cal. App. 2d 650, 676-678 [245 P.2d 633].) Nor is the role of the prosecutor in this regard simply a specialized version of the duty of any attorney not to overstep the bounds of permissible advocacy.

“[I]n both civil and criminal matters, a party’s attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters.” In re Horton (1991) 54 Cal.3d 82, 95, 102 [284 Cal.Rptr. 305]. Encompassed in this is the authority to control matters of ordinary trial strategy, such as which witnesses to call, the manner of cross-examination, what evidence to introduce, and whether to object to an opponent’s evidence. Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 138 [95 Cal.Rptr.3d 799]. However, a decision on any matter that will affect the client’s substantive rights is within the client’s sole authority. Maddox v. City of Costa Mesa (2011) 193 Cal.App.4th 1098, 1105 [122 Cal.Rptr.3d 629]. In addition, if Witness’s only purpose at trial would be to testify as an alleged eyewitness on matters now known to be false, Witness should not be mentioned in pretrial disclosure documents (for example, pretrial witness lists or trial briefs).
Penal Code section 127: “Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.”
Rule 1.16(b) presents several circumstances allowing for permissive withdrawal that may be implicated under these facts: Client is seeking to pursue a course of conduct the lawyer reasonably believes was a crime or fraud, the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent, the client’s conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively or the representation likely will result in a violation of the Rules of Professional Conduct or the State Bar Act. Rule 1.16(b)(2)-(4) and (b)(9).

The United States Supreme Court has repeatedly held that the right to testify does not include a right to commit perjury. Nix v. Whiteside, 475 U.S. 157, 173 (1986); United States v. Havens, 446 U.S 620, 626 (1980).

Id. at Rule 3.3. Similarly, the ABA’s Model Code of Professional Responsibility states, “In his representation of a client, a lawyer shall not . .. [k]nowingly use perjured testimony or false evidence.” Id. at DR 7-102(A)(4).

The Proposed Evidentiary Standard: Actual Knowledge

Although an attorney clearly must not participate in the presentation of perjured testimony, on what basis can an attorney conclude that a defendant is going to testify falsely? No controlling precedent provides guidance on this critical issue.

Commentators and courts in other jurisdictions have set forth a variety of standards for determining when an attorney “knows” the client intends to testify falsely, including “good cause to believe” a client intends to testify falsely, State v. Hischke, 639 N.W.2d 6, 10 (lowa 2002); “compelling support” for concluding that the client will perjure himself, Sanborn v. State, 474 So.2d 309, 313 n.2 (Fla. Dist. Ct. App. 1985); “knowledge beyond a reasonable doubt,” Shockley v. State, 565 A.2d 1373, 1379 (Del. 1989); “a firm factual basis,” United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir.1977); “a good faith determination,” People v. Bartee, 566 N.E.2d 855, 857 (ILI. Ct. App. 1991), and “actual knowledge,” United States v. Del Carpio-Cotrina, 733 F.Supp. 95, 99 (S.D.Fla. 1990). See generally, Commonwealth v. Mitchell, 781 N.E.2d 1237, 1246-47 (Mass.) (surveying the range of standards), cert. denied, 123 S.Ct. 2253 (2003).

This Opinion adopts the most stringent standard: “before defense attorneys can refuse to assist a client in testifying, they must know that the client will testify falsely based on the client’s

‘The Code of Professional Responsibility and Rules of Professional Conduct. The older Model Code of Professional Responsibility

Rules of Professional Conduct was adopted in 1983 (and recently amended in other areas. See Silver, Iruth. Mistice, and the American Way:

The Case Against the Client Perjury Rules, 47 Vand. L. Rev. 339, 343-50 (1994) (tracing the development of the Model Code of Professional Responsibility and the Model Rules of Professional Conduct). Other than California, all states have substantially adopted either the Code of Professional Responsibility or the Rules of Professional Conduct.

 

 

Filing Frivolous Lawsuits

Filing lawsuits without a reasonable basis. Connecticut judges do not like people filing frivolous lawsuits to harass people. Instead, lawyers must perform a reasonable investigation to determine whether valid grounds exist for filing a lawsuit. Obviously, a lawyer cannot uncover all evidence before filing, but they cannot file an obviously meritless case. If they do, their client could be sued for vexatious litigation.

sometimes lawyers lie to make you the Vexatious Litigant, there are rules for that too Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

 

G. Authenticating Metadata:

Another way in which electronic evidence may be authenticated is by examining the metadata for the evidence. Metadata, “commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’ Metadata is ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Some examples of metadata for electronic documents include:

a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it). Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Because metadata shows the date, time and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all electronic evidence that can be used to authenticate it under Federal Rule 901(b)(4).

Although specific source code markers that constitute metadata can provide a useful method of authenticating electronically stored evidence, this method is not foolproof because, “[a]n unauthorized person may be able to obtain access to an unattended computer. Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide authorization for selected network administrators to override an individual password identification number to gain access when necessary. Metadata markers can reflect that a document was modified when in fact it simply was saved to a different location. Despite its lack of conclusiveness, however, metadata certainly is a useful tool for authenticating electronic records by use of distinctive characteristics.”  (Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 547–48 [citations omitted].)

H. Challenges to Authenticity

Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created.

Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. California state courts have refused to require, as a prerequisite to admission of computer records, testimony on the “acceptability, accuracy, maintenance, and reliability of … computer hardware and software.” (People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.)

Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author. For further information, please consult “Defeating Spurious Objections to Electronic Evidence,” by Frank Dudley Berry, Jr., [click here] or Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

I.  Hearsay Rule

The first question to ask is whether or not the information within the document is hearsay. If it is hearsay, then you need an applicable exception, such as business and government records or statement by party opponent. Examples of things that are not hearsay include;

  1. operative facts and
  2. data that is generated by a mechanized process and not a human declarant and,
  3. A statement being used to show its falsity not its truth.

J. Operative Facts

Where “ ‘the very fact in controversy is whether certain things were said or done and not … whether these things were true or false, … in these cases the words or acts are admissible not as hearsay[,] but as original evidence.’ ” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 31, p. 714.) For example, in an identity theft prosecution, there will be no hearsay issue for the majority of your documents. The documents are not being offered for the truth of the matter asserted; they are operative facts. In Remington Investments, Inc v. Hamedani (1997) 55 Cal.App.4th 1033, the court distinguished between the concept of authentication and hearsay. The issue was whether a promissory note was admissible. The court observed that: ‘The Promissory Note document itself is not a business record as that term is used in the law of hearsay, but rather an operative contractual document admissible merely upon adequate evidence of authenticity. (Id. At 1043.)

Under Remington, promissory notes, checks and other contracts are not hearsay, but operative facts. Moreover, forged checks, false applications for credit, and forged documents are not hearsay. They are not being introduced because they are true. They are being introduced because they are false. Since they are not being introduced for the truth of the matter asserted there is no hearsay issue.

Other examples of non-hearsay documents would include:

  •  The words forming an agreement are not hearsay (Jazayeri v. Mao (2009) 174 Cal.App.4th
  • 301, 316 as cited by People v. Mota (Cal. Ct. App., Oct. 8, 2015, No. B252938) 2015 WL 5883710 (Unpublished)
  • A deposit slip and victim’s identification in a burglary case introduced to circumstantially
  • connect the defendant to the crime. (In re Richard (1979) 91 Cal.App.3d 960, 971-979.)
  • Pay and owes in a drug case. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1222-1226.)
  • Items in a search to circumstantially connect the defendant to the location. (People v. Williams (1992) 3 Cal.App.4th 1535, 1540-1543.)
  •  Invoices, bills, and receipts are generally hearsay unless they are introduced for the purpose of corroborating the victim’s damages. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)
  •  Defendant’s social media page as circumstantial evidence of gang involvement. (People v. Valdez (2011) 201 Cal.App.4th 1429.
  •   Logs of chat that was attributable to Defendant were properly admitted as admissions by party opponent, and the portions of the transcripts attributable to another person were properly classified as “non hearsay”, as they were not “offered for the truth of the matter asserted.” Replacing screen names with actual names appropriate demonstrative evidence. (U.S. v. Burt (7th Cir., 2007) 495 F.3d 733.)
  • “To the extent these images and text are being introduced to show the images and text found on the websites, they are not statements at all—and thus fall outside the ambit of the hearsay rule.” (Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1155.)
  • Generally, photographs, video, and instrument read outs are not statements of a person as defined by the Evidence Code. (Evid.Code §§ 175, 225; People v. Goldsmith (2014) 59 Cal.4th 258, 274; People v. Lopez (2012) 55 Cal.4th 569, 583.)

Although the check itself is not hearsay, the bank’s notations placed on the back of the check showing that it was cashed is hearsay. The bank’s notations would be introduced for the truth of the matter asserted – that the check was cashed. Evidence Code sections 1270 and 1271 solve this problem by allowing the admission of these notations as a business record.

Two helpful rules that apply to business records. First, it may be permissible to infer the elements of the business record exception. In People v. Dorsey (1974) 43 Cal.App.3d 953, the court was willing to find that it was common knowledge that bank statements on checking accounts are prepared daily on the basis of deposits received, checks written and service charges made even though the witness failed to testify as to the mode and time of preparation of bank statements. The second rule is that “lack of foundation” is not a sufficient objection to a business record. The defense must specify which element of the business record exception is lacking. (People v. Fowzer (1954) 127 Cal.App.2d 742.)

K. Computer Records Generated by a Mechanized Process

The first rule is that a printout of the results of the computer’s internal operations is not hearsay evidence because hearsay requires a human declarant. (Evid.Code §§ 175, 225.)
The Evidence Code does not contemplate that a machine can make a statement. (People v. Goldsmith (2014) 59 Cal.4th at 258, 274 [rejecting hearsay claims related to red light cameras];
People v. Hawkins (2002) 98 Cal.App.4th 1428; People v. Lopez (2012) 55 Cal. 4th.569). These log files are computer-generated records that do not involve the same risk of observation or recall as human declarants. Thus, email header information and log files associated with an email’s movement through the Internet are not hearsay. The usual analogy is that the clock on the wall and a dog barking are not hearsay.  An excellent discussion on this issue can be found in Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

Metadata such as date/time stamps are not hearsay nor do they violate the confrontation clause because they are not testimonial. (See, People v. Goldsmith 59 Cal.4th at 258, 274-275; People v. Lopez (2012) 55 Cal. 4th.569, 583.)

L. Business Records

Log files and other computer-generated records from Internet Service Providers may also easily qualify under the business records exception to the hearsay rule. (Evid.Code §§1270, 1271, 1560, 1561.) Remember, you do not need to show the reliability of the hardware or software. (People v. Lugashi (1988) 205 Cal.App.3d 632.) Nor does the custodian of records need to completely understand the computer. (Id.) Additionally, the printout (as opposed to the entry) need not be made “at or near the time of the event.” (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769.) Finally, a cautionary note from the Appellate Court in People v. Hawkins (2002) 98 Cal.App.4th 1428: “the true test for admissibility of a printout reflecting a computer’s internal operations is not whether the printout was made in the regular course of business, but whether the computer was operating properly at the time of the printout.”  If the computer is used merely to store, analyze, or summarize material that is hearsay in nature, it will not change its hearsay nature and you will need an applicable exception for introduction. Common exceptions for the contents of email include: statement of the party, adoptive admission, statement in furtherance of a conspiracy, declaration against interest, prior inconsistent statement, past recollection recorded, business record, writing as a record of the act, or state of mind.  Note also that records obtained by search warrant, and accompanied by a complying custodian affidavit, are admissible as if they were subpoenaed into court (Evid. Code §§ 1560-1561, effective January 1, 2017) and records obtained from an Electronic Communication Service provider that is a foreign corporation, and are accompanied by a complying custodian affidavit, are currently admissible pursuant to Penal Code § 1524.2(b)(4). (See also Pen. Code § 1546.1(d)(3).)

M. Government Records

An official record is very similar to a business record, even if it is obtained from a government website. The chief difference is that it may be possible to introduce an official record without calling the custodian or another witness to authenticate it. (Evid. Code, § 1280; See Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 548–49; EEOC v. E.I dupont de Nemours & Co. (2004) 65 Fed. R. Evid. Serv. 706 [Printout from Census Bureau web site containing domain address from which image was printed and date on which it was printed was admissible in evidence].)  The foundation can be established through other means such as judicial notice or presumptions. (People v. George (1994) 30 Cal.App.4th 262,274.)

N. Published Tabulations

Prosecutors are often plagued with how to introduce evidence that was found using Internet-based investigative tools. For example, if your investigator used the American Registry For Internet Numbers (ARIN) programs (WHOIS, RWhois or Routing Registry Information), how is this admissible without calling the creator of these Internet databases? Evidence Code Section 1340 allows an exception to the hearsay rule, which allows the introduction of published tabulations, lists, directories, or registers. The only requirement is that the evidence contained in the compilation is generally used and relied upon as accurate in the course of business. Note that not all data aggregation sites may have the proper characteristics for this exception. In People v. Franzen (2012) 210 Cal.App.4th 1193, 1209–13, the court found that a subscription based service did not possess the characteristics that would justify treating its contents as a published compilation for purposes of section 1340

O. Former Best Evidence Rule

Reminder: The Best Evidence Rule has been replaced in California with the Secondary Evidence

Rule. The Secondary Evidence Rule allows the admissibility of copies of an original document. (Evid. Code, § 1521.) They are not admissible, however, if “a genuine dispute exists concerning material terms of the writing and justice requires the exclusion,” or if admitting the evidence would be “unfair.” (Evid. Code, § 1521.)  In a criminal action it is also necessary for the proponent of the evidence to make the original available for inspection at or before trial. (Evid. Code, § 1522.)  For email or any electronic document, this is especially important, given the wealth of information contained in its electronic format, as opposed to its paper image.  Of interest, Evidence Code Section 1522 requires that the “original” be made available for inspection. Evidence Code Section 255 defines an email “original” as any printout shown to reflect the data accurately. Thus, the protections offered by Evidence Code Section 1522 are stripped away by Evidence Code Section 255. This is where the protections of Evidence Code Section 1521 are invoked: “It’s unfair, your Honor, not be able to inspect the email in its original format.”  Also, remember that Evidence Code Section 1552 states that the printed representation of computer information or a computer program is presumed to be an accurate representation of that information. Thus, a printout of information will not present any “best evidence rule” issues absent a showing that the information is inaccurate or unreliable.  Oral testimony regarding the content of an email [writing] is still inadmissible absent an exception. (Evid. Code, § 1523.) Exceptions include where the original and all the copies of the document were accidentally destroyed.  Of course, none of the above rules applies at a preliminary hearing. (See Pen. Code § 872.5 [permits otherwise admissible secondary evidence at the preliminary hearing]; B. Witkin, 2 California Evidence (3rd ed., 1986) § 932, p. 897 [“secondary evidence” includes both copies and oral testimony].)  i This material was prepared by Robert M. Morgester, Senior Assistant Attorney General, California Department of Justice in 2003 for the High-Technology Crime: Email and Internet Chat Resource CD-ROM, and draws heavily upon Documentary Evidence Primer, by Hank M. Goldberg, Deputy District Attorney, Los Angeles County District Attorney’s Office, January 1999. Material from that document was used with Mr. Goldberg’s permission. This material was updated in 2016 by Robert Morgester and Howard Wise, Senior Deputy District Attorney, Ventura County District Attorney’s Office.

P. How does Hearsay Play into the Era of Text Messaging?

With the ubiquitousness of smart phones, text messages have now become a preferred tool of communication for many. Due to the informal nature of text messages, many, if not most people fail to consider the potential evidentiary effect of a text message. As a general proposition, despite the informal usage of text messages, a text message can potentially still be evidence in the case, subject to the rules of hearsay, with further caveats. In this post, we specifically discuss how the lack of response to a text messages cannot qualify as an adoptive admission as an exception to the hearsay rule.

Q. Hearsay evidence in Trial

The concept of “hearsay” as it pertains to trial is well known. As many people know, out of court statements offered for its truth are barred by the hearsay rule due to inherent trustworthiness and reliability concerns. However, there are many exceptions to this rule that would allow an otherwise inadmissible statement to be offered as evidence or for some other purpose in court. One major exception to the hearsay rule are admissions made by a party.

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R. Admissions Made by a Party

Specifically, an admission for the purposes of the hearsay exceptions in any out of court statement or assertive conduct by a party to the action that is inconsistent with a position the party is taking at current proceeding. The statement itself does not necessarily need to have been against the party’s interest when it was made. Indeed, even a statement self-serving whenmade may be admissible as a party admission if contrary to the party’s present position at trial. (People v. Richards (1976) 17 Cal.3d 614, 617-618 (disapproved on other grounds by People v. Carbajal (1995) 10 Cal.4th 1114, 1126.)

Notably, an admission does not necessarily require an affirmative statement by the party taking the inconsistent position. Indeed, silence may be treated as an adoptive admission if, under the circumstances, a reasonable person would speak out to clarify or correct the statement of another were it untrue. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) However, silence is not admissible as an adoptive admission if another reasonable explanation can be demonstrated. Indeed, in the recent case of People v. McDaniel (2019) 38 Cal.App.5th 986, 999 (“McDaniel”), the Court of Appeal held that failure to respond to a text message accusing defendant of committing a crime was not admissible as an adoptive admission.

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In McDaniel, the prosecution attempted to use the defendant’s mother’s statement to show an adoptive admission by the defendant because the defendant did not text his mother back to deny her indirect accusation that he had committed several local robberies. The Court of Appeal rejected that theory. As the Court of Appeal explained, given the nature of text messaging, the fact that the defendant did not text his mother back was not sufficient to show he had adopted his mother’s statement:

Text messaging is different from in person and phone conversations in that text exchanges are not always instantaneous and do not necessarily occur in “real time.” Rather, text messages may not be read immediately upon receipt and the recipient may not timely respond to a text message for any number of reasons, such as distraction, interruption, or the press of business. Furthermore, people exchanging text messages can typically switch, relatively quickly and seamlessly, to other forms of communication, such as a phone call, social-media messaging, or an in-person discussion, depending on the circumstances. In short, in light of the distinctive nature of text messaging, the receipt of a text message does not automatically signify prompt knowledge of its contents by the recipient, and furthermore, the lack of a text response by the recipient does not preclude the possibility that the recipient responded by other means, such as a phone call. source

Several California laws dictate how electronic communications can be authenticated.

  • Below are the evidence code numbers and examples of when they may apply:Means of Authenticating and Proving Writings
  • Evidence Code § 1401.
    (a) Authentication of a writing is required before it may be received in evidence.
    (b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.There are several ways to authenticate and prove a writing under Evidence Code sections 1410-1421.

ARTICLE 2. Means of Authenticating and Proving Writings [1410 – 1421]

  • Evidence Code § 1410 – the evidence code does not limit the means by which communication may be authenticated.
    content may be received in evidence.
    1410.    Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved.Testimony of a Witness with Personal Knowledge: Section 1410 allows for authentication of a writing through the testimony of a witness who has personal knowledge of the writing’s origin or content. For example, in a forgery case, a defense attorney might call a handwriting expert to testify that the signature on a contested document doesn’t match the defendant’s genuine signature, thereby undermining the authenticity of the document.Comparison with a Genuine Exemplar: Section 1411 states that if the authenticity of a questioned document is in dispute, a comparison with a known, genuine exemplar can be used to establish its authenticity. For instance, in a case involving check fraud, the defense can present a check signed by the defendant and compare the signatures to prove the questioned document’s authenticity.Expert Opinion: In cases where the authenticity of a writing is complex and may require specialized knowledge, section 1412 allows for expert testimony. For example, in a grand theft case involving digital evidence, a forensic expert might be called upon to authenticate emails, texts, or other electronically stored data.
  • 1410.5.
    • (a) For purposes of this chapter, a writing shall include any graffiti consisting of written words, insignia, symbols, or any other markings which convey a particular meaning.
    • (b) Any writing described in subdivision (a), or any photograph thereof, may be admitted into evidence in an action for vandalism, for the purpose of proving that the writing was made by the defendant.
    • (c) The admissibility of any fact offered to prove that the writing was made by the defendant shall, upon motion of the defendant, be ruled upon outside the presence of the jury, and is subject to the requirements of Sections 1416, 1417, and 1418.
  • 1411. Except as provided by statute, the testimony of a subscribing witness is not required to authenticate a writing.
  • 1412. If the testimony of a subscribing witness is required by statute to authenticate a writing and the subscribing witness denies or does not recollect the execution of the writing, the writing may be authenticated by other evidence.
  • 1413. A writing may be authenticated by anyone who saw the writing made or executed, including a subscribing witness.
    Evidence Code § 1413 – a witness saw the person send the message and attests to witnessing this actionDistinctive Characteristics: Section 1413 provides that when a writing has distinctive characteristics, these can be used for authentication. For example, in a cybercrime case, the unique digital signature of a hacker’s code might be used to authenticate the writing, connecting it to the defendant.
  • Cal. Evid. Code § 1414
    Section 1414 – Admissions of authenticity

    1. The party against whom it is offered has at any time admitted its authenticity; or
    2. The writing has been acted upon as authentic by the party against whom it is offered.
      Evid. Code § 1414 Enacted by Stats. 1965, Ch. 299.

    Public Records and Reports: Public records and reports made by a public officer in accordance with legal requirements are considered self-authenticating pursuant to section 1414. For example, in an embezzlement case where a defendant’s prior convictions for identity theft are relevant, the defense attorney can introduce certified court records to prove the authenticity of these documents.

    Ancient Documents: Section 1415 states that documents over 30 years old are deemed authentic as long as they are in a condition that creates no suspicion of alteration. In a 35 year old homicide trial, the prosecution may introduce the defendant’s old diary entry confessing to the murder to prove the authenticity of certain events.

    Documents Executed Under Seal: Documents with an official seal are self-authenticating and do not require further authentication under section 1416.

    Certified Copies: Section 1417 states that in criminal cases that involve documents such as arrest records, certified copies from the custodian of records can be introduced as evidence, provided they are properly certified.

    Documents in the Regular Course of Business: Section 1418 states that business records made in the regular course of business are considered authentic. For example, in a real estate fraud case, an attorney can introduce financial records from a company’s accounting department to prove the authenticity of financial transactions.

  • 1415. A writing may be authenticated by evidence of the genuineness of the handwriting of the maker.
  • 1416. A witness who is not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of a supposed writer if the court finds that he has personal knowledge of the handwriting of the supposed writer. Such personal knowlegde may be acquired from:
    • (a) Having seen the supposed writer write;
    • (b) Having seen a writing purporting to be in the handwriting of the supposed writer and upon which the supposed writer has acted or been charged;
    • (c) Having received letters in the due course of mail purporting to be from the supposed writer in response to letters duly addressed and mailed by him to the supposed writer; or
    • (d) Any other means of obtaining personal knowledge of the handwriting of the supposed writer.
  • 1417.The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting(a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.
  • 1418.The genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.
  • 1419.Where a writing whose genuineness is sought to be proved is more than 30 years old, the comparison under Section 1417 or 1418 may be made with writing purporting to be genuine, and generally respected and acted upon as such, by persons having an interest in knowing whether it is genuine.
  • Evidence Code § 1420 – the context of the message shows the message was a reply from the person in questionCollateral Documents: Sometimes, a document is not directly at issue but is related to the case. In these instances, section 1420 states that the collateral document can be introduced to help prove the authenticity of the primary document. For example, a defense attorney may use a surveillance video from a nearby store to corroborate the authenticity of a defendant’s alibi in a robbery case.
    1420A writing may be authenticated by evidence that the writing was received in response to a communication sent to the person who is claimed by the proponent of the evidence to be the author of the writing.
  • Evidence Code § 1421 – in the message itself, the person says something that only they would knowPhone Records: In cases involving cell phone records, Section 1421 allows attorneys to use records provided by phone service providers to authenticate call logs and text messages. This may be crucial in cases related to cybercrimes or communication between individuals involved in criminal activities. A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.1421.A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing. source source source

Proof of declarant’s perception by his statement presents similar considerations when declarant is identified. People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804 (1961). However, when declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient, Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963); Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939), a result which would under appropriate circumstances be consistent with the rule.

 

 

 

 

 

 

 

 

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More H

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Texts / Emails AS EVIDENCE:

ELECTRONICALLY STORED INFORMATION IN COURT 

Text / Email Specific 

ARE TEXT MESSAGES ADMISSIBLE IN COURT?  AFTER AN ACCIDENT THE OTHER DRIVER ADMITTED SHE WASN’T PAYING ATTENTION.  IN A TEXT LATER THE DRIVER SAID SHE WAS SORRY, THAT SHE’D BEEN ON THE CELL PHONE, AND OFFERED TO PAY OUTSIDE OF INSURANCE.  NOW THAT HER INSURANCE COMPANY IS INVOLVED SHE DENIES EVERYTHING.  IS THE TEXT ADMISSIBLE IN COURT?

If you watch those TV court shows you may have seen them admit texts without a thought.  Remember they have to get everything in between the commercials.

In an actual court of law electronically stored information, or “ESI”, faces several tests under the rules of evidence.

ESI includes texts, emails, chat room conversations, websites and other digital postings.  In court, admitting ESI requires passing these steps:

  1. Is the electronic evidence relevant?
  2. Can it pass the test of authenticity?
  3. Is it hearsay?
  4. Is the version of ESI offered the best evidence?
  5. Is any probative value of the ESI outweighed by unfair prejudice?

The text must pass each step.  Failing any one means it’s excluded.  Proving relevance poses a relatively simple challenge.  But meeting the authenticity requirement raises larger questions.

Establishing the identity of the sender of a text is critical to satisfying the authentication requirement for admissibility.  Showing the text came from a person’s cell phone isn’t enough.  Cell phones are not always used only by the owner.

Courts generally require additional evidence confirming the texter’s identity.  Circumstantial evidence corroborating the sender’s identity might include the context or content of the messages themselves.

HEARSAY RULE AND ELECTRONICALLY STORED INFORMATION

Text messages and other ESI are hearsay by nature.  The hearsay rule blocks admission of out of court statements offered to prove the truth of the matter at issue.  But court rules, which vary from jurisdiction to jurisdiction, are full of exceptions and definitions of “non hearsay”.

Here, the text by the other driver that she wasn’t paying attention at the time of the car accident should qualify as an admission, a prior statement by the witness or a statement by a party opponent.

TEXTS AND ‘BEST EVIDENCE’ RULE

Two more layers remain in the evidentiary hurdle.  ESI presents its own challenges in passing the ‘best evidence rule’ or the ‘original writing rule’.  Essentially the rules require introduction of an original, a duplicate original or secondary evidence proving the version offered to the court is reliable.

The final test requires that the probative value of the evidence not be outweighed by considerations including unfair prejudice, confusion of the issues or needless presentation of cumulative evidence.

ESI AND TEXTS AS EVIDENCE: WHY SO HARD?

Sometimes the challenge isn’t as overwhelming as it seems.  In a federal case in which I was involved the court addressed all five steps of the process in ten minutes and admitted a series of texts.  But a federal magistrate in Maryland wrote a 101 page decision thoroughly detailing the above process, rejecting some emails.

These are the evidence issues confronting texts and any electronically stored information.  But, people who fail to object to evidence waive their right to object later, including upon appeal.  Evidence of all kinds sometimes sneaks in despite the rules.  So, go through the analysis long before running up the courthouse steps. source

Introducing Digital Evidence in California State Courts

  • Victim testified he knew the number from which text was sent because Defendant told him the number. The contents of the texts referred to victim as a snitch. The defendant called the victim during the course of the text message conversation. [(Butler v. State, 459 S.W. 3d 595 (Crim. Ct App. Tx. April 22, 2015].)
  • Testimony of records custodian from telecommunications company, explaining how company kept records of actual content of text messages, the date and time text messages were sent or received, and the phone number of the individuals who sent or received the messages, provided proper foundation for, and sufficiently authenticated, text messages admitted into evidence in trial on armed robbery charges. (Fed.Rules Evid.Rule 901(a), U.S. v. Carr (11th Cir. 2015) 607 Fed.Appx. 869.)
  • Ten of 12 text messages sent to victim’s boyfriend from victim’s cellular telephone following sexual assault were not properly authenticated to extent that State’s evidence did not demonstrate that defendant was author of text messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
  • Murder victim’s cell phone recovered from scene of crime. Forensic tools used on phone recovered texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
  • Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e‑mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e‑mail messages. (People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished].) G. Authenticating Metadata: Another way in which electronic evidence may be authenticated is by examining the metadata for the evidence. Metadata, “commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’

Metadata is ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Some examples of metadata for electronic documents include: a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it).

Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Because metadata shows the date, time and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all electronic evidence that can be used to authenticate it under Federal Rule 901(b)(4). Although specific source code markers that constitute metadata can provide a useful method of authenticating electronically stored evidence, this method is not foolproof because, “[a]n unauthorized person may be able to obtain access to an unattended computer.

Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide authorization for selected network administrators to override an individual password identification number to gain access when necessary.

Metadata markers can reflect that a document was modified when in fact it simply was saved to a different location. Despite its lack of conclusiveness, however, metadata certainly is a 7 | Introducing Digital Evidence in California State Courts useful tool for authenticating electronic records by use of distinctive characteristics.”

(Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 547–48 [citations omitted].) F. Challenges to Authenticity Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created. Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. California state courts have refused to require, as a prerequisite to admission of computer records, testimony on the “acceptability, accuracy, maintenance, and reliability of … computer hardware and software.”

(People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.) Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author. For further information, please consult “Defeating Spurious Objections to Electronic Evidence,” by Frank Dudley Berry, Jr., or Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) (accessed Aug. 18, 2016). III. Hearsay Rule The first question to ask is whether or not the information within the document is hearsay. If it is hearsay, then you need an applicable exception, such as business and government records or statement by party opponent. Examples of things that are not hearsay include; 1) operative facts and 2) data that is generated by a mechanized process and not a human declarant and, 3) A statement being used to show its falsity not its truth. source

Why Would Someone Need to Authenticate Text Messages for Court?

In the contemporary age of technology, digital evidence is becoming increasingly important in court. Here is how to authenticate text messages for court in California.

Text messages are unfortunately a form of digital media that can easily be photoshopped and manipulated. This puts the evidence at risk of interference or invalidity. Additionally, text messages fall under the jurisdiction of California Evidence Code Section 250, which prevents any evidence from being used without first being authenticated.

Related: Can Text Messages Be Used in California Divorce Court?

How to Introduce Digital Evidence in California State Courts

Smartphones allow endless mobile communication that can be crucial evidence for a court case. In order to present documents and electronic evidence in a California state court, the accumulation of evidence must follow the California Electronic Communication Privacy Act (CPOA). The California Electronic Communication Privacy Act protects the privacy of individuals and their electronic devices, and it requires law enforcement to receive a warrant before they can access any electronic information.

To be in compliance with the CPOA, digital evidence must prove to be necessary for furthering the case. Additionally, in order to be sustainable in court, digital evidence must meet the following four components:

  1. It must be relevant.
  2. It must be authenticated.
  3. Its contents must not be inadmissible hearsay (able to be disproven as fake).
  4. It must withstand a “best evidence” objection.

Proposed digital evidence must meet the standards of both the CPOA and the four aforementioned components. The only exceptions to the protection of privacy that the CPOA ensures are if the individual gives consent or if the exception qualifies as an emergency situation. In order to meet the requirements of an emergency circumstance, the government entity must “in good faith, believe that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information” (CPOA).

Additionally, if the evidence contains metadata, the proponents must address the metadata separately. Metadata is data about the date, for example, a time stamp on a screenshot in a text message. The proponents would need to consider the time and prepare an additional foundation for it.

The Four Components of Evidence Required Getting Authentication of Text Messages

Relevance is determined by the evidence’s ability to prove or disprove any disputed fact, including credibility. In order for digital evidence to qualify as relevant, the defendant must usually be tied to the evidence being presented. Specifically, the proponent must be able to make a connection between the defendant and either the phone number that sent or received the text.

Authentication of evidence requires the proponent to introduce sufficient evidence to hold that the writing is what they are claiming it is. To authenticate a text message it must hold that “by evidence the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the prominent of the evidence to be the author of the writing.” California Evidence Code Section 1421.

There are no published California cases that distinctly lay out the requirements for authenticating a text message, but unpublished California opinions are consistent with the rules set for authenticating emails and chats. This includes a combination of both direct and circumstantial evidence. Here are some examples of unpublished opinions from California:

  • The murder victim’s cell phone was recovered from the scene of the crime. The forensic tools used on the phone recovered the texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
  • 10 of 12 text messages sent to the victim’s boyfriend from the victim’s cellular telephone following sexual assault were not properly authenticated to extent that the State’s evidence did not demonstrate that the defendant was the author of the messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].) source

 

Getting Authentication of Text Messages

For a text message to be used as evidence in California Divorce Court, it must be authenticated, meaning that the other party must admit to sending the message, a witness must testify that they have seen the message being created or reply authentication must be demonstrated. Reply authentication is demonstrated when a reply message is clearly sent in response to the original message.

The California Evidence Code also dictates ways in which electronic communications can be authenticated, such as if the message references something only the other party would know about or understand.

Authentication is important and necessary in the process of utilizing text messages in California Divorce Court because it verifies that the messages are legitimate evidence and not hearsay.

https://herlawyer.com/text-messages-divorce-court/

he court reiterated the 5 step approach set forth by the S. Supreme Court in Neil v. Biggers409 U.S. 188, 189 (1972) for determining the reliability of in-court voice identification: (1) the ability of the witness to hear the assailant speak, (2) the witness’ degree of attention, (3) the accuracy of any prior identifications the witness made, (4) the period of time between the incident and the identification, and (5) how certain the witness was in making the identification.

Authenticating Texts: A text message is a writing within the meaning of Evidence Code section 250

Authenticating Texts: A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated.

(Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

A text message may be authenticated “by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing”

(Evid.Code, § 1421), or by any other circumstantial proof of authenticity (Id., § 1410).

As of August 2016, there are no published California cases that specifically discuss what is required for authenticating a text message. Unpublished California opinions are consistent with the rule set forth above for authenticating e-mails and chats through a combination of direct and circumstantial evidence based on the facts of the case. Because of the mobile nature of smart phones, the proponent must take care to tie the declarant to the phone from which texts were seized or to the phone number listed in records obtained from the phone company. Often this done through cell phone records or the phone being seized from the defendant, his home or car or other witnesses testifying that this was how they communicated with the defendant. Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:

Can Emails Be Used in Court?

Whether you are bringing or defending a business lawsuit, your litigation attorney has likely asked you to gather and organize relevant documents in preparation for your case. This involves anyone or any location that might have helpful information to confirm your argument.

Unfortunately, not all emails are admissible as evidence in a business litigation case. Emails can be used as admissible evidence in a court of law if they’re found to be authentic. Once they fit the criteria, the emails can be treated as legal documents. 

Determining Admissibility of Electronic Evidence

A business lawyer should help you determine which electronic communications are admissible and which are not, but we’ve described two main considerations here to get you started:

Message Must Be Authentic

It may be obvious to you that a specific email or text is the real deal and came from the source you claim.  However, it’s not overly difficult for someone with the right skillset to manipulate, fake, or corrupt digital data.  For this reason;

  • Your business litigation attorney must establish authenticity first and foremost.
  • A litigator may gain authentication by deposing the sender or recipient of the email.
  • When it comes to business litigation, company emails are normally considered self-authenticating when they:
    •  contain official corporate identifiers, and
    • are confirmed by redundant records.

Content Must Be Reliable

Even if you can prove that the communication you received is authentic, that doesn’t necessarily mean that its contents are helpful to your business lawsuit.  The email in question could say the company is in breach of contract, but simply stating this, doesn’t make it true.  This is considered hearsay, whether spoken, emailed, or texted.  Varying degrees of admissible evidence vs. hearsay could stem from a multi-email conversation depending on the nature of the content.  Consequently;

  • Your business attorney must prove the communication is an exception to the hearsay rule.
  • In a business lawsuit, communication could be considered reliable when presented as:
    • Business Record:
      • the communication was created by an employer or officer of that company.
      • the communication was created by an employee of that company as one of their proven and regular official duties.
    • Circumstantial Evidence:
      • the communication confirms an event or timeline
      • the communication confirms relevant actions were taken
    • Party Admission:
      • the party in question is the creator/sender
      • the opposing part offered it into evidence
      • the communication was sent by a proven coconspirator

Of course, there are a variety of circumstances that could cause even emails that fall under these categories to become inadmissible.  For example, if the sender was not in their right mind or if their motive is not expertly established, those emails will not hold up in court.  Additionally, each state has its own laws surrounding the admissibility of electronic evidence, so the strength of your case is not always straight forward.

source

Introducing TEXT & EMAIL Digital Evidence in California Courts pdf
Obtaining Electronic Evidence in Criminal Investigations pdf

 

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S.  624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Other States outside of California High Courts CaseLaw

The Georgia Supreme Court ruled on 11/7/2016 that outgoing text messages found in a cell phone are admissible in evidence as admissions of the person who sent them. However, incoming text messages are inadmissible hearsay, though their admission in evidence was “harmless” under the circumstances of the case. Glispie v. State, decided November 7, 2016.

This ruling arose in the context of the criminal prosecution of an alleged drug dealer. That would have been a great interest in my past life as a prosecutor, though of course cell phones had not been invented when I was sending criminals to prison.

Text messages can be obtained by law enforcement with a search warrant based upon probable cause to examine the contents of a cell phone. If I were still a prosecutor, I would probably seek search warrants for contents of cell phones in a lot of cases. In the civil context, however, we do not have that option. We cannot get search warrants in civil cases. Cell phone service providers, e.g., AT&T, Verizon, etc., typically do not keep text messages in the system more than perhaps 72 hours.

The only way to obtain those in a civil case is to obtain a court order for a forensic download of the phone. In addition to records of voice calls placed and received (though not the content of the calls, and text messages, forensic examination of wireless devices such as cell phones can reveal patterns of conduct and communication, including the times that the driver was using an app, typing a text, or watching a video.  It has location history for the phone, showing where the driver was at various points in time.  It includes calls, texts and emails between the driver and the trucking company.  It may include records of communications with employer personnel inconsistent with prudent driver supervision by a motor carrier regarding fatigue management.

Parties opposing forensic download of a cell phone may assert claim of personal privacy. However, where the cell phone user killed someone, that fact may outweigh personal privacy. A trial court judge would be justified in ordering the download subject to a protective order limiting delicate personal information to use in the case after in camera review by the court.

THIS STATE OF GEORGIA RECOGNIZES THE COMLEXITY OF LEGITIMACY AND HOW IT CAN IMPACT FREEDOM IS IT IS SPOOFED BY SOMEONE AND LEAD TO IMPROPER PROSECUTION

(Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)

https://law.justia.com/cases/nevada/supreme-court/2012/56413.html

After a seven-day jury trial, Kevin Rodriguez was found guilty of multiple criminal counts. Rodriquez appealed, arguing that the district court erred

  • (1) in overruling his objection to the admission of twelve text messages because the State failed to authenticate the messages and the messages constituted inadmissible hearsay, and
  • (2) in overruling his objection to the admission of DNA non-exclusion evidence because the evidence was irrelevant without supporting statistical data.

 The Supreme Court affirmed, holding that the district court

  •  (1) abused its discretion in admitting ten of the twelve text messages because the State failed to present sufficient evidence corroborating Appellant’s identity as the person who sent the ten messages, but the error was harmless; and
  •  (2) did not abuse its discretion by admitting the relevant DNA non-exclusion evidence because, so long as it is relevant, DNA non-exclusion evidence is admissible because any danger of unfair prejudice or of misleading the jury is substantially outweighed by the defendant’s ability to cross-examine or offer expert witness evidence as to probative value.

This is  yet another STATE SUPREME of NEVADA that clearly understands how text can be manipulated

 

Email Evidence

The use of email by opposing spouses falls within the interplay of wiretapping and electronic stored communications laws, and consequently, courts have had some difficulty in determining which laws, if any, apply. The predominant approach seems to be that emails prior to being sent or once received do not fall within wiretapping statute.

Take for example a case from the North Carolina Court of Appeals, Evans v. Evans, where sexually explicit emails offered by the husband in a divorce action did not violate ECPA where interception of emails was not contemporaneous with transmission.The emails were recovered from the hard drive of the family computer.

However, one Florida Court has concluded that spyware-capturing emails in a family law case did violate ECPA and admission of these emails was within the discretion of trial court.In this case, the court granted an injunction against using or disclosing the information gained.

Most spyware/keystroke capture programs remain legal, as long as they are not capturing contemporaneous transmission of communication (outside of Florida). It is not, however, wise to advise a client to use these because the law on the topic is vague. You can counsel your client to search for spyware planted by the opposing party, but often such programs are not really there.

In Gurevich v. Gurevich, a wife sought to introduce as evidence emails she obtained from her estranged husband’s email account, in a divorce proceeding.The wife contends that the husband gave her the password and never revoked her from accessing his email account.The court references CPLR 4506 Penal Law section 250.05, which states that “[a] person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.”The court took the position that even if the husband’s facts were true, the wife may have unlawfully retrieved information from his computer but there was no interception, which does not violate CPLR 4506.The emails were admissible at trial as long as the email did not violate the attorney-client privilege.

In White v. White, the wife hired a computer expert to find and copy her husband’s e-mails that were stored on the hard drive of the computer in the family home.The court held that the wife did not violate the SCA, because it determined the e-mail was not in electronic storage when it was accessed because the computer hard drive was not electronic storage.They also determined that the access was not without authorization.

With further regard to the discovery of emails, subpoenaing internet service providers will typically only generate the sender and recipient of a message. ISP’s, like cell phone providers, often delete this information quickly. However, certain service providers retain the data. Thus, it may be worth the attempt.

Further, it is vitally important that any email evidence is obtained in an appropriate and ethical manner. In, In re: Joel B. Eisenstein, which was a litigated divorce, an attorney received emails contained privileged and confidential information after his client hacked into the opposing parties’ personal email account without permission.In particular, Husband obtained and delivered to his attorney Wife’s most current payroll documents and a list of direct examination questions e-mailed to her in preparation for trial.Attorney did not “immediately disclose the receipt of the information to opposing counsel,” but instead improperly obtained payroll information during a pre-trial settlement conference.Attorney also sent a “[t]hreatening” email to opposing counsel to “avoid an ethics complaint.”The OCDC filed an Information charging the attorney with violating Rules 4-4.4(a) for using methods of obtaining evidence in violation of the rights of a third person; 4-8.4(c) and (d) for reviewing and using improperly obtained evidence; and 4-3.4(a) for unlawfully concealing a document having evidentiary value.The attorney admitted that he had viewed the information and that he did not immediately disclose his receipt of this information to the opposing party.The Missouri Supreme Court held that this was misconduct warranted such suspension of his law license, under Standards 6.1 and 6.12., for a minimum period of six months.

Email Messages and Chains

An e-mail often has attached to it the email or series of emails to which it is responding, creating an email “chain,” also known as a “string” or “thread.” Some courts have found that each email in a chain is a separate communication, subject to separate authentication and admissibility requirements. A lawyer should thus be prepared to authenticate every step of a chain.

Most email systems, for instance, allow a person forwarding an email to edit the message being forwarded. Such alteration would not be discernible to the recipient. Emails are also more prone to a kind of hearsay-within-hearsay problem: an “email chain” attaches to an email every email that came before it in a discussion. It isn’t enough to get the most recent email into evidence when that email attaches a string of previous emails. All of the prior emails may need to be separately authenticated and found admissible.

Email Attachments

A court might deem attachments to authenticated emails are themselves authenticated. However, it is important to not take this for granted at the same time. In Madison Holdings, LLC v. Punch Int’l, Plaintiffs objected to documents attached to Maes’ executed declaration filed on June 30, 2008.Specifically, Plaintiffs objected to an email from Vandekerckhove to Maes dated July 14, 2004, a certified translation of the email, and two marked-up drafts of the APA, which were attachments to the email.Although these documents were not originally attached to Maes’ unexecuted declaration when it was first filed on June 13, 2008, the Court, in its discretion, allowed them.Defendants contend that Maes discovered, upon final review of the materials, that these documents were missing and, as such, produced them when he executed the declaration.Additionally, Plaintiffs contended that Defendants failed to properly authenticate the email attachments. The Court, however, disagreed. These documents were attachments to an email that was authenticated by Maes’ declaration. Accordingly, Plaintiffs objections were overruled.

Images/Photos

Images and photos are often attached to email and text communication and can present admissibility challenges. Under Evidence Rule 901 and its state analogues, photographs are typically admitted as demonstrative evidence to illustrate testimony. When used purely as demonstrative evidence, legal issues regarding authentication and chain of custody are somewhat relaxed so long as a competent witness can testify that the photograph fairly and accurately depicts the scene about which he or she is testifying. In these situations, it is generally not necessary that the authenticating witness be the same as the photographer or as a competent person who observed the making of the photograph.Videos are typically authenticated in the same manner as a still photograph.I will illustrate some portions of this discussion using a series of decisions by the Alaska Supreme Court whose evidentiary rules and interpretations typically closely follow majority federal views.

Under Evidence Rules 1001 through 1004, an original document (including a photograph) is required to prove the truth of the facts for which any document is offered. However, over many years, the definition of an original has been greatly expanded, particularly with regard to electronically stored information, and the requirement for an original is honored more in the breach than to the letter. Indeed, duplicates, including electronically made prints or digitally identical electronic file duplicates, are typically admissible to the same degree as an original document unless admitting the duplicate would prove inaccurate or unfair.

Authentication requirements are somewhat stiffened where there is a strong argument that a photograph does not accurately reflect the scene or that the use of a duplicate is inaccurate or unfair. Generally, a trial courts admission or exclusion of proffered photographs is reviewed under an abuse of discretion standard. Common sense, a reasonably objective evaluation of your intended use of the proposed photographic evidence and some trial experience are usually an adequate guide to the allowable demonstrative or evidentiary uses of a photograph. A trier of facts evaluation of non-demeanor evidence like photographs (as contrasted with live witness testimony) is theoretically subject to a less deferential standard of appellate review, but this more stringent approach is often not strictly applied. However, when photographs are to be used as the basis for expert witness testimony or to actually prove the existence of an allegedly depicted condition, then they will be held to a higher standard and you will need to be much more cognizant of subtle technical and photographic parameters.

Admissibility of photographs varies, depending upon the evidentiary context and the purpose for which a photograph is offered. Courts are usually willing to tolerate some inaccuracies in a photograph so long as these are explained to the trier of fact so that they may be taken into account. However, where a photograph is used as a basis for establishing critical ultimate facts or as the basis for expert testimony, courts are less willing to overlook major gaps. For example, the Alaska Supreme Court, in Kaps Transport, Inc. v. Henry, stated the majority rule:

That there are inaccuracies or defects in the photograph does not necessarily render it inadmissible as long as there is an explanation of these imperfections so that the jury is not misled.

However, in Kaps, the Alaska Supreme Court excluded the photograph in question because the defendant’s accident reconstruction expert was attempting to use the photograph, in conjunction with a reconstructive technique known as perspective analysis, to establish how far across the highway centerline the Plaintiff had alleged strayed. In order to use a photograph as a basis for perspective analysis reconstruction, the focal length used to take the photograph and the conditions under which the photograph was taken must be known with a substantial degree of precision, which the Defendant could not show. In this case, the photograph was to be used to provide actual data about the accident scene rather than merely illustrating the area. Hence, it was subject to a more rigorous authentication process which it ultimately failed.

Similarly, where a photograph is offered to prove that some condition did not exist, a court will look closely at the time frame when a photograph was purportedly taken. but still use a common-sense case by case analysis. For example, if a photograph is offered of criminal defendants’ hands purporting to show that there was no gunshot residue, and then the offering party must establish that the photograph was taken at a time when gunshot residue would still be apparent. Absent that showing, the photograph may not be admitted. On the other hand, where direct evidence of a condition provided by an otherwise authenticated photograph is only one link in a logical fact structure, the photograph will likely be admitted to prove the depicted condition.

In cases where there is sufficient countervailing testimony, the admission of photographs with a shaky time frame may be harmless error. For example, the Alaska Supreme Court refused to reverse a verdict despite the trial courts admission into evidence of the defendant highway departments arguably inaccurate photographs that purported to show that an accident site was well-sanded despite the Plaintiffs contrary contentions. The time frame when these photographs were taken, relative to the time of the accident, was never precisely established but was sufficient contrary testimonial evidence by the investigating State Troopers actually at the accident establishing that photographs were inaccurate and that the road was poorly sanded. Hence, admitting these allegedly misleading photographs with an imprecise time frame was harmless error.

    1. Video and Audio

Videos and photos can also often be attached to email and text communication and can, likewise, present admissibility challenges. One of the questions we are asked more often than any other is “can you tell me if this audio or video recording has been edited?” It is always best to preserve the original recording to remove all doubt about the genuineness of the recording. In other words, the original evidence is only original if it has not been copied or cloned for analysis.

With today’s advanced audio and video editing software being readily available, it is becoming easier and easier to edit or tamper with forensic evidence. Establishing the authenticity of audio or video is extremely important when presenting admissible evidence to the court. Primeau Forensics’ examiners continue their education yearly in both audio and video forensics.

Audio authentication process:

  • (1) Evidence marking for later identification by the forensic expert;
  • (2) Physical inspection of the evidence for specific characteristics that are noted by the expert;
  • (3) Digital data imaging and playback optimization;
  • (4) Critical listening to the audio for auditory anomalies;
  • (5) High-resolution waveform analysis, visual inspection of sound wave formation;
  • (6) Narrowband spectrum analysis;
  • (7) Spectrographic analysis;
  • (8) Digital data analysis;
  • (9) Miscellaneous analysis based on the investigation thus far;
  • (10) Work notes and work product; and
  • (11) Creating a forensic report.

Video authentication has similarities to audio authentication in that it is always best to preserve the original recording to remove all doubt about genuineness. When the original recording is not available, the video forensic expert has to investigate several aspects of the video recording, including the metadata and hex information, to determine if a video recording has been edited. Much of the video authentication process is scientific. The video forensic expert not only investigates the elements of the video recording itself, but also investigates the way the video recording surfaced, how it was created and the type of equipment that was used to create the video recording in question.

Video authentication process:

  • (1) Establish that of the quality of the recording in question is acceptable and workable;
  • (2) Evidence marking for later identification by the forensic expert;
  • (3) Physical inspection of the evidence for specific characteristics that are noted by the expert;
  • (4) Digital data imaging and playback optimization;
  • (5) Examine the electronically recorded information on the digital or analogue video signal;
  • (6) Vector and Waveform scope analysis to detect anomalies;
  • (7) Miscellaneous analysis based on the investigation thus far;
  • (8) Work notes and work product; and
  • (9) Creating a forensic report.
  1. Cell Phones and Text Messages

In the realm of cell phones and tablets lurk two significant federal statutes: Title III of the Omnibus Crime Control Act 1968-2522 and the Electronic Communications Privacy Act of 1986. Together, they prohibit interception of oral and electronic communication without the consent of at least one party to the communication. These apply to traditional telephones, wireless phones, and cell phones. As a practical note, secretly recorded oral communications are almost always excluded at trial, whereas electronic communications are almost never automatically excluded. For example, in Conner v. Tate, a woman had a cause of action against her lover’s wife who was intercepting phone conversations and recording voicemail messages.

The most common application for cell phones in a divorce matter is to subpoena the carrier for itemized billing, but that is changing. Text messages or Short Message Service (SMS) messages may be worth tracking down because a lot may be said in the 224 characters that some phones now allow. SMS messages may also transmit photos, sounds, and videos. As many people now communicate far more frequently through text message than phone calls, these may provide an excellent source of information when it comes to proving the behavior of the opposing party.

Outside of intercepting telephone conversations or voicemails, smartphone data and tablets are akin to a computer.

  1. Subpoenaing Cell Phone and Email Records

Typically, subpoenaing cell phone records through providers is much easier than subpoenaing social media or email providers. This is because unlike social media websites, cell phone providers, at least more likely than not, do business in your state. Therefore, you simply serve a subpoena on a registered agent if they have one within the state. If they do not have a registered agent, physically serve the subpoena on a company store. Like any subpoena, it must be calculated to produce relevant evidence, and remember, if you decide to subpoena the provider, you are unlikely to receive the content of any text message conversations. If text messages or emails are what you seek, you are likely better off trying to get them from the opposing party via appropriate discovery mechanisms. However, you might be able to subpoena email records from a business located in your state.

The Stored Communications Act (SCA) imposes different levels of restrictions and protections, depending on whether the service provider at issue is providing electronic communication services or remote computing services.An “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications.And, with certain exceptions, the SCA prohibits “a person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.”For this restriction to apply, it must be in “electronic storage,” and it is limited to the following scenarios:

  • Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

  • Any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

Thus, the SCA only prohibits an electronic communications service from knowingly divulging communications that are either in temporary storage (such as a message waiting to be delivered) or kept for the purposes of backup protection.

On the other hand, the restrictions on “remote computing service providers,” are much broader and not limited to communications kept in temporary storage or for backup purposes.The Act defines “remote computing services” as a service which provides the public with computer storage or processing services by means of an electronic communications system.The SCA imposes the following restriction on such services:

  • A person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service–

    solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

Several courts disagree when to classify certain types of communications with respect to these two categories.As a general rule of thumb, however, it is safe to assume that if a message has not been opened by its recipient, it operates as part of an electronic communication service.If the recipient has opened and retained the message, however, it operates as a remote computing service.

Thus, in order to work with phone companies (and social media companies), you should always first check that company’s website and/or terms of service to understand their approach to responding to third-party discovery requests.Depending on a company’s terms of service and the extent of SCA protection, a service provider may be able to quash even a subpoena for relevant information. Therefore, it is best to try and first procure voluntary consent, since the SCA stipulates that a service provider may divulge communications where the originator or recipient of the communication gives their consent.Notice that the consent of the originator or recipient is required-meaning if consent is denied from one, you may be able to procure it from the other. Once this consent is obtained, there should be no trouble in procuring the relevant data from the service provider. Otherwise, attempt to seek a court order compelling the consent or a subpoena.

Keep in mind that negotiating for consent takes time and that digital information may be lost before consent can be obtained.Therefore, it is important you put the service provider on notice that you will be seeking their voluntary or compelled consent to obtain the sought-after information and request that they preserve that information for the purposes of litigation.Afterward, follow up with them and seek assurance that the information is being preserved, and offer to compensate them for any reasonable expenses incurred in preserving that information.Note that most jurisdictions hold that such a request does not create a real duty in a third-party to preserve any information.That is why it is extra important that you offer the service provider as much accommodation as you can afford to ensure their cooperation. One way around would be to obtain a preservation subpoena-but that would require that your court have jurisdiction over the non-party.However, the jurisdictional requirement harshly limits the usefulness of this strategy.

Once a subpoena has been issued, perhaps the most common defense is that it violates the rights to privacy. In State v. Clampitt,it was held that individuals have a reasonable expectation of privacy in their text messages and anything else on their phones including emails. Unlawful access to cell logs or text messages breaches that right to privacy under the Fourth Amendment, and that getting such records requires a search warrant.In this case, the police sought to get text message logs via investigative subpoenas that did not specify which particular recipient messages were needed, and which were extended each time the time period specified lapsed.This meant in effect police went through his all incoming and outgoing text messages searching for an admission or something to use against him, and if they found none, applied for an extension of the dates in the hope of getting such information.This was held to be a violation of, inter alia, his Fourth Amendment rights.

Consistent also with the ruling in Clampitt is United States v. Warshak,which spoke specifically on email messages, and held emails were similar to telephone calls and letters and, therefore, require the same protections traditionally afforded to telephone and letters under the Fourth Amendment. Third parties, such as service providers who have the capacity to monitor these communications are not compelled to hand over email and text messages without a warrant showing probable cause.

  1. Admissibility of Email and Text Messages

Generally, courts have a broad discretion on ruling on admission or exclusion of any evidence at trial including email and text messages. Electronic messages, particularly emails give rise to the difficulty of authenticating their actual author; even if they have been sent from one’s email address. This is because it is possible that anyone can send an email from someone else’s email address. Additional proof is therefore needed to establish authorship.

In Missouri, foundation requirements for the admissibility of electronic messages were laid out in State v. Harris.The court stated that there should not be assumed authenticity of the origin of the message, based on either ownership or possession of the phone.The standard is this:

[T]he proponent of such evidence must present some proof that the message[s] were actually authored by the person who allegedly sent them.

This rule was also applied in State v. Franciswhere the court examined the admissibility of non-testifying third-party text messages sent to Appellants phone, and text messages sent allegedly by the Appellant from that phone. The Appeals Court held there must be evidence that the messages were actually authored by the person alleged to have sent them.This includes admissions by the person who sent them or circumstantial evidence such as testimony by the recipient that they have in the past received messages or calls from the alleged author from that number.There could also be something which shows the author wrote the message, such as a personalized signature.Mere ownership of the phone or possession, does not presume authorship of all outgoing messages.Further, for non-testifying third party texts (incoming texts), which are ordinarily regarded as hearsay, to be admissible, they must fall under any identified exception to the hearsay rule.Such evidence is also only admissible to give contextual meaning to the reply.

The Missouri Court of Appeals, Eastern District in T.R.P v. B.B., recently (June 2018) confirmed the foundational requirements as stated in Harrison the authorship of the message, and highlighted that evidence of authorship can be circumstantial and need not be onerous. In this case, Respondent testified that the Appellant in addition to sending text messages from that number had also previously called and identified himself and this was enough to determine that Appellant had indeed sent the text message.

  1. In What Form to Submit the Data

Recently, courts have not had great difficulty in accepting the fact that a printout or a screen shot is an accurate representation of various online communications. In United States v. Catraban,the defendant contended that the computer printouts used against him were inaccurate, and he was able to show the inaccuracies in the data. Despite this, the court concluded the discrepancies merely went to the weight of the evidence as opposed to the issue of authentication.One court has even stated that the computer printouts “have a prima facie aura of reliability.”Increasingly, the only bar to admission of ESI is identifying the author and/or finding the applicable hearsay exceptions.

Similarly, in United States v. Tank, it was held that chat room transcripts and printouts, much like e-mails, could be authenticated by the testimony of one of the participants in the online chat.However, the level of proof to authenticate ESI varies from jurisdiction to jurisdiction. In People v. Charlery,there was a detective who retrieved and printed Hotmail messages. He testified as to the process of retrieval and this satisfied the authenticity requirement.Other jurisdictions will require more strenuous proof on the reliability of the computer processing system. Some jurisdictions have allowed distinctive characteristics to authenticate ESI, such as profile pictures on social media accounts.

  1. Rules of Evidence

A common objection to ESI evidence is found under Fed. R. Evid. 901 that the material is not authentic. The attorney should then proceed to various authentication techniques. These techniques include asking the owner or creator of the account if they sent the questioned content under Fed. R. Evid. 901(b)(1); formulating requests for admission with printout of the desired communication attached; third, you can bring in an expert to testify under 901(b)(3) or maybe even 901(b)(0); fourth, you can use distinctive characteristics under 901(b)(4); and finally, you could potentially use conditional relevancy under Fed. R. Evid. 104(a) and (b). Until there is a commonly accepted method of authenticating electronic evidence, the practitioner should be prepared to meet the most exacting standards.

Specifically, e-mails can be authenticated by an admission secured by the author or the sender of the communication that they drafted or sent the communication. It will be given more weight to authenticity if a recipient or non-recipient of the communication had knowledge of it. Additionally, a witness with the knowledge of how the communication carrier sends and receives the information could help authenticate it, as well as information about how it might be stored.

Chat room communications or transcripts may be authenticated if the proponent demonstrates that: (1) the alleged sender had access to the appropriate computer; (2) the chats were conducted at the same time as the person in question admitted to communicate; (3) the chats were being conducted using a screen name created by the person in question; and (4) the content of the chats were similar to what the person in question admitted.

In Campbell v. State,the court upheld the admission and authentication of Facebook messages in a domestic assault case. The court asserted that Facebook presents an authentication concern that is twofold.First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate.The second concern is that any person may gain access to another person’s account by obtaining the user’s name and password.The person viewing the profile cannot be certain that the author is, in fact, the profile owner.However, the most appropriate method for authenticating electronic evidence, as with any kind of evidence, will often depend on the nature of the evidence and the circumstances of the particular case.The appellate court held that the contents of the Facebook messages provide circumstantial evidence supporting the trial court’s ruling.

In United States v. Lanzon,the court upheld the admission of instant messaging transcripts with the defendant and an undercover agent. The defendant argued that copying the instant messaging conversations into a word document altered the conversation such that they could not be authenticated.The court rejected this argument under Fed. R. Evid. 901(b)(1) stating that the proponent need only to present enough evidence to make out a prima facie case that the proffered evidence is what it purports to be.

In State of Hawaii v. Espiritu, the court considered text messages to be a ‘writing’ under Fed. R. Evid. 1002. The court found that the original messages were lost or destroyed.Nevertheless, the court concluded that the text messages were admissible via the complainant’s testimony under the state equivalent of Fed. R. Evid. 1004, finding that 1004 is ‘particularly suited for electronic evidence’ because of the many ways it can be deleted or lost.Fed. R. Evid. 1004 states that an original is not necessary and “other evidence of the content of a writing, recording, or photograph is admissible if all the originals are lost or destroyed, and not by the proponent acting in bad faith.”

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Major Exceptions To The Hearsay Rule
Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

  1. New Federal Rules of Evidence

Given the unpredictability and the wide variety of results in judicial decisions concerning authenticating ESI, there have been new rules that have been adopted to supplement the rules as of December 1, 2017. Rule 902 (13) addresses some of the concerns that many have about the current rules and how they address modern day evidence such as ESI.The new Rule 902 (13) addresses Certified Records Generated by an Electronic Process or System.The specific language of the rule states:

Rule 902(13): Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

There is also a new Rule 902 (14) that has been implemented. Rule 902 (14) discusses Certified Copies of Electronic Devices, Storage Media, or Files.The specific language of the new rule states that:

Rule 902(14): Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

Without a doubt, the addition of these two rules potentially allow for a more uniformed approach to authenticating electronic evidence and smoother trials where: (a) experts are utilized; and (b) there is no dispute over the authenticity of the records. There is the potential concern, however, that there is too much overlap with existing rules. Specifically, that the new rules 902(13) and 902 (14) may create problems with other provisions of 902, 901, 104 (a) and 104 (b).

  1. Dealing with Objections

When there has been an objection to admissibility of a text message, the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission; thus, authenticating a text message or e-mail may be done is much the same way as authenticating a telephone call.An e-mail may be authenticated by circumstantial evidence that allows the finder of fact to determine that the e-mail is what the proponent claims it to be.

The easiest way to authenticate the data is under FRE 901(b)(1), which allows a witness with personal knowledge to authenticate that the data is what it is claimed to be. One simple way to comply with this standard is to introduce the electronic document or evidence during a deposition and have the creator or recipient of the ESI confirm that it is genuine. This will be the strongest and simplest way to prove that your ESI evidence was not manipulated.

The possibility of alternation does not and cannot be the basis for excluding ESI as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population and is of particular importance in the professional world. A party is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are submitted to a jury. In United States v. Safavian, the court found that absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done. The take away from Safavian is that the court in most cases will recognize that manipulation is possible, but there is still the evidence that is required to show that it was. And even then, if it is not overly, convincing, courts have said that information goes to the weight of the evidence, to be considered by the trier of fact.

Evans v. Evans, 610 S.E.2d 264, 271 (N.C. Ct. App. 2005).

Id. (citing Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003).

See, O’Brien v. O’Brien, 899 So.2d 1133, 1138 (Fla. Dist. Ct. App. 2005).

Id.

Gurevich v. Gurevich, 24 Misc. 3d 808, 886 N.Y.S.2d 558 (Sup. Ct. 2009).

Id.

Id. at 560.

Id. at 562.

Id.

White v. White, 781 A.2d 85 (N.J. Super. Ch. 2001).

Id.

In re: Joel B. Eisenstein 485 S.W.3d 759, 759-761 (Mo. 2016)

Id.

Id. at 762.

Id. at 763.

Id. At 761.

Id. at 672.

Id. at 674.

O’Donnell, Beatrice. “Admissibility of Emails: Getting Then In and Keeping Them Out” Pennsylvania Law Weekly, 11 June, 2007.

O’Donnell, Beatrice. “Authenticating Email Discovery as Evidence” Atkinson Baker, 11 Dec. 2007.

Civil Case No. 4:06-cv-3560 (S.D. Mar. 31 2009)

Id.

Id.

Id.

Id.

United States v. Clayton, 643 F.2d 1071, 1074 (C.A. 5, 1981.

Saturn Manufacturing, Inc. V. Williams Patent Crusher and Pulverizer Company, 713 F.2d 1347, 1357 (C.A. 8, 1983).

572 P.2d 72 (Alaska, 1977).

Riksem v. Hollister, 96 Idaho 15, 523 P.2d 1361 (1974); Southeastern Engineering & Mfg. Co. v. Lyda, 100 Ga.App. 208, 110 S.E.2d 550 (1959).

Conner v. Tate, 130 F. Supp. 2d 1370, 1373 (N.D. Ga. 2001).

Id. at 228

Id.

18 U.S.C. § 2702(a)(1); (b)(3).

The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 228 (2013)

Id. at 229.

Id.

Id.

18 U.S.C. § 2702(a)(2).

See The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 229-230 (2013).

Id. at 230.

Id.

Id. at 237.

Id. at 233; see generally 18 U.S.C. § 2702(b) (lists various exceptions to SCA protections on customer

communications).

The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 233 (2013) (“the founder and

administrator of one of the Internet’s most popular imageboards167 testified that threads in the site’s most popular

board ‘generally speaking’ last ‘from minutes to hours to a few days at maximum.’”).

Id.

Id.

Id. at 233-234.

Id. at 234.

364 S.W. 3d 605, 610-611 (Mo. App. 2012)

Id.

Id. at 607-608.

Id.

Id. at 614.

631 F.3d 266,286 (6th Cir.2010)

State v. Clampitt 364 S.W. 3d 605 (Mo. App. 2012)

Com. v. Koch. 39 a.3d 996, 1000 (Pa. Super.2011)

State v. Harris, 358 S.W. 3d 172,175 (Mo. App. E.D. 2011)

Id.

Id.

State v. Francis, 455 S.W. 3d 56, 70 (Mo. App. 2014)

Id. at 71.

Id.

Id.at 70.

Id.

Id. at 73.

Id.

ED105999, 5 Mo. App,2018

State v. Harris, 358 S.W. 3d 172,174 (Mo. App. E.D. 2011)

T.R.P., supra note 56.

United States v. Catrabran, 836, F.2d 453 (9th Cir. 1988).

Id.

Canadyne-Georgia Corp. v. Bank of America, N.A., 174 F. Supp. 2d 1337, 1343 (M.D. Ga. 2001).

United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000).

People v. Charlery, 2014 WL 5396166, at 4-5 (V.I. Super. Oct. 22, 2014).

Id.

Frieden, Jonathan D. & Leigh M. Murray. The Admissibility of Electronic Evidence under the Federal Rules of Evidence. 17 Rich. J.L. & Tech. 5 (2010).

Id.

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012). (citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)).

Id.

Id.

Id.

Id.

Id.

Id. at 553.

United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011).

Id. at 1297.

Id. at 1301.

State of Hawaii v. Espiritu, 176 P.3d 885 (Haw. 2008).

Id. at 892.

Id.

Id.

Fed. R. Evid. 902(13)

Id.

Id.

Fed. R. Evid. 902(14)

Id.

State v. Koch, 334 P.3d 280 (Idaho 2014).

Zittler, Jay M. Authentication of Electronically Stored Evidence, Including Text Messages and E-mail. 34 A.L.R.6th 253, § 3.5. (Originally published in 2008)(see Donati v. State, 84 A.3d 156 (Md. Ct. Spec. App. 2014).

United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006), rev’d on other grounds, 528 F.3d 957 (D.C. Cir. 2008).

source

source 2

Federal Rules for E-Mail & Text Message Evidence in Litigation

  1. Court Rules

Many computer and electronic discovery issues are covered by the Federal Rules of Civil Procedure. However, it is also vital to check state and local rules of civil procedure. Below are various applicable Federal Rules of Civil Procedure:

  1. Federal Rules of Civil Procedure

Fed. R. Civ. P. 1001(1) – Writings and recordings include computers and photographic systems.

Fed. R. Civ. P. 26(a)(1)(C)– Obligates parties to provide opponents with copies of or descriptions of documents, data compilations, and tangible things in a party’s possession, custody, or control.

Fed. R. Civ. P. 34 – Permits a party to serve on another party a request to produce data compilations (subpoena). This can include word processing files, spreadsheet files, investment data or databases, calendars, browser histories, contact lists, digital photographs, email, and social media. These and other miscellaneous information can be found on hard drives, floppy disks, optical disks, flash drives, network storage, remote storage, cell and smartphones and virtually any electronic source.

request text and email evidence through the use of a Request for Production. It is certainly appropriate as well to inquire about text and email evidence through written Interrogatories. Further, a properly obtained text or email could be attached to a Request for Admission where the other party is asked to admit or deny the authenticity of the communication. It is certainly possible as well to make a request pursuant to Rule 58.01 or Federal Rule of Civil Procedure 34 for a forensic computer expert to inspect the hard drive of a computer, smartphone or tablet for relevant text or email evidence (provided that safeguards are put into play, where appropriate, for the protection of privileged and confidential communication through a special master or otherwise).

 

To Learn More…. Read MORE Below and click the links Below 

Abuse & Neglect – The Reporters  (Police, D.A & Medical & the Bad Actors)

If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS  INFO BULLETIN Click Here Officers and DA’s  for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law  its a PDF files taken from

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

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]]> Prosecutor’s Obligation to Disclose Exculpatory Evidence https://goodshepherdmedia.net/prosecutors-obligation-to-disclose-exculpatory-evidence/ Fri, 26 Jan 2024 16:57:52 +0000 https://goodshepherdmedia.net/?p=12255 What is Exculpatory Evidence? – Definition, Examples & Importance
Exculpatory evidence is any evidence in a criminal trial that supports the idea that the defendant is not guilty. In this lesson, we’ll discuss what kind of evidence is considered exculpatory, plus examples; we’ll also examine how important it is in the legal system. Updated: 09/08/2021

Exculpatory: Definition

A convicted killer is out on parole and he kills again. Witnesses saw him thrust a knife in his victim and run out of an alley. They positively identified him in a lineup, and his DNA is found on the knife. After a guilty verdict, the defense moves to have the verdict set aside because the prosecutor discovered evidence that the killer was still logged in at work when the murder took place. Is that right?

Exculpatory evidence is evidence in a criminal trial that tends to show that the defendant is not guilty. ”Exculpatory” comes from the word ”exculpate,” which comes from two Latin words ex, ”from,” and culpa, ”blame.”

It typically works like this:

A defendant is charged with a crime, and both the prosecutor and defense attorney gather evidence to each make their case. If the prosecutor comes across any evidence that tends to show the defendant didn’t commit the crime, he or she has to turn it over to the defense. If the prosecutor neglects this step, then the case can be dismissed, retried, or even the defendant found not guilty.

Exculpatory Evidence

In Brady v. Maryland (1963), the Supreme Court held that exculpatory evidence withheld in a criminal trial can result in a re-hearing of the case. In this case, Brady claimed his friend, who had committed the murder with Brady, did the actual killing. Brady was convicted for murder and sentenced to death, but the prosecutor failed to tell a jury that the friend had already confessed to the killing.

The court stated that the jury needed to hear that evidence because it could assist them in their decision regarding Brady. From then on, any exculpatory evidence the prosecutor or law enforcement has is called Brady material, the requirement to turn Brady material over to the defense is called the Brady rule. Brady got a new hearing that resulted in a lifetime sentence instead.

But what other kind of evidence is exculpatory? The law says ”any evidence” that tends to show innocence of the defendant is included. This can include crime scene evidence, witness testimony, DNA results, and medical records.

Exculpatory Enough

If you’re a prosecutor or a police detective, how do you know which evidence is exculpatory enough? For example, if the defendant claims he was 300 miles away during the time of the murder, and he was driving a red 2003 Ford 150 pickup with a front decorative plate that says ”Hog Wild,” do you have to turn over all camera images that show a red Ford pickup getting gas or going through a toll booth?

No. In U.S. v. Bagely (1985), the court laid out the legal standard on whether evidence is Brady material. The defense has to show that the inclusion of the evidence might have reasonably resulted in a different outcome. So it wouldn’t be reasonable to show every red Ford pickup found hundreds of miles away at that time, but what about that picture of a red 2003 Ford 150 pickup with a front decorative plate that said ”Hog Wild”? Since it would be reasonable that this would change the outcome of the trial, it’s Brady material. source

The Prosecution’s Duty to Disclose Exculpatory Evidence

Criminal trials are serious business, and a defendant’s rights are enshrined in law. You have a right to due process. The prosecution is required to play fairly. Playing fairly means if the prosecution has evidence that you didn’t commit the offense charged or evidence that would reasonably be expected to help your defense, the prosecution must disclose that evidence to your criminal defense lawyer.

The Brady rule

The Brady rule refers to a Supreme Court case called Brady v. Maryland. The case dates back to 1963, and is a due process case under the 14th Amendment to the US Constitution. The Supreme Court ruled that when a prosecutor intentionally withholds exculpatory and material evidence from a defendant, that act violates the defendant’s due process rights. The withholding of the information is a “deliberate deception of court and jury.”

In Brady, two co-defendants were charged with murder while committing a robbery. Prior to the trial of the co-defendant Brady, the other co-defendant confessed to the murder. Even though the defense lawyers specifically asked for any statements by the co-defendant, the prosecutor intentionally did not disclose this crucial piece of evidence – the confession. Brady was found guilty and sentenced to death before his lawyer discovered the confession.

The US Supreme Court, based on this willful nondisclosure, vacated Brady’s sentence and ordered a new sentencing hearing. Today, the disclosure requirements imposed by Brady are well-known though prosecutors sometimes try to argue the evidence isn’t “material.”

Giglio vs. US.

In a more recent case, Giglio v. United States, the Supreme Court applied the Brady doctrine in a case involving the lack of credibility of a co-defendant. The prosecutor failed to disclose that a co-conspirator received immunity from prosecution in return for the co-conspirator’s testimony. The critical point is that the Supreme Court reasoned that the credibility of a witness is an exculpatory factor.

Experienced criminal defense lawyers routinely ask the prosecution for all exculpatory evidence. Exactly what evidence is exculpatory, what evidence affects credibility, and what evidence is material is decided on a case-by-case basis. source

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence.

Brady rule

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The Brady rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. A “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused–evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense.

Further, in cases subsequent to Brady, the Supreme Court has eliminated the requirement for a defendant to have requested a favorable information, stating that the Prosecution has a constitutional duty to disclose, that is triggered by the potential impact of favorable but undisclosed evidence See Kyles v. Whitley 514 U.S. 419, 434 (1995) and United States. v. Bagley, 473 U.S. 667 (1985).

The defendant bears the burden to prove that the undisclosed evidence was both material and favorable.  In other words, the defendant must prove that there is a “reasonable probability” that the outcome of the trial would have been different, had the evidence been disclosed by the prosecutor. See Kyles, 514 U.S. at 433 (1995).  Bagley and Kyles Court further defined the “materiality” standard, outlining the four aspects of materiality.  First, the “reasonable probability” of a different result is not a question of whether the defendant would more likely than not have received a different verdict with the evidence, but whether the government’s evidentiary suppression undermines the confidence in the outcome of the trial.  The second aspect is that it is not a sufficiency of evidence test, and the defendant only has to show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict.  Third aspect is that there is no need for a harmless error review, because a Brady violation, by definition, could not be treated as a harmless error.  Fourth and final aspect of materiality the Kyles Court stressed was that the suppressed evidence must be considered collective, not item by item, looking at the cumulative effect to determine whether a reasonable probability is reached.  See Kyles, 514 U.S. at 433-438. source

9-5.000 – ISSUES RELATED TO DISCOVERY, TRIALS, AND OTHER PROCEEDINGS

9-5.001 Policy Regarding Disclosure of Exculpatory and Impeachment Information
9-5.002 Criminal Discovery
9-5.003 Criminal Discovery Involving Forensic Evidence and Experts
9-5.004 Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases
9-5.100 Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”)
9-5.110 Testimony of FBI Laboratory Examiners
9-5.150 Authorization to Close Judicial Proceedings to Members of the Press and Public

9-5.001 – POLICY REGARDING DISCLOSURE OF EXCULPATORY AND IMPEACHMENT INFORMATION

  1. Purpose. Consistent with applicable federal statutes, rules, and case law, the policy set forth here is intended to promote regularity in disclosure practices, through the reasoned and guided exercise of prosecutorial judgment and discretion by attorneys for the government, with respect to the government’s obligation both to disclose exculpatory and impeachment information to criminal defendants and to seek a just result in every case. The policy is intended to ensure timely disclosure of an appropriate scope of exculpatory and impeachment information so as to ensure that trials are fair. The policy, however, recognizes that other interests, such as witness security and national security, are also critically important, see JM 9-21.000, and that if disclosure prior to trial might jeopardize these interests, disclosure may be delayed or restricted (e.g. pursuant to the Classified Information Procedures Act). This policy is not a substitute for researching the legal issues that may arise in an individual case. Additionally, this policy does not alter or supersede the policy that requires prosecutors to disclose “substantial evidence that directly negates the guilt of a subject of the investigation” to the grand jury before seeking an indictment, see JM 9-11.233.
  2. Constitutional obligation to ensure a fair trial and disclose material exculpatory and impeachment evidence. Government disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 432-33 (1995). Neither the Constitution nor this policy, however, creates a general discovery right for trial preparation or plea negotiations. U.S. v. Ruiz, 536 U.S. 622, 629 (2002); Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
    1. Materiality and Admissibility. Exculpatory and impeachment evidence is material to a finding of guilt—and thus the Constitution requires disclosure—when there is a reasonable probability that effective use of the evidence will result in an acquittal. United States v. Bagley, 475 U.S. 667, 676 (1985). Recognizing that it is sometimes difficult to assess the materiality of evidence before trial, prosecutors generally must take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence. Kyles, 514 U.S. at 439. While ordinarily, evidence that would not be admissible at trial need not be disclosed, this policy encourages prosecutors to err on the side of disclosure if admissibility is a close question.
    2. The prosecution team. It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all the members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.Kyles, 514 U.S. at 437.
  3. Disclosure of exculpatory and impeachment information beyond that which is constitutionally and legally required. Department policy recognizes that a fair trial will often include examination of relevant exculpatory or impeachment information that is significantly probative of the issues before the court but that may not, on its own, result in an acquittal or, as is often colloquially expressed, make the difference between guilt and innocence. As a result, this policy requires disclosure by prosecutors of information beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81 (1999). The policy recognizes, however, that a trial should not involve the consideration of information which is irrelevant or not significantly probative of the issues before the court and should not involve spurious issues or arguments which serve to divert the trial process from examining the genuine issues. Information that goes only to such matters does not advance the purpose of a trial and thus is not subject to disclosure.
    1. Additional exculpatory information that must be disclosed. A prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.
    2. Additional impeachment information that must be disclosed. A prosecutor must disclose information that either casts a substantial doubt upon the accuracy of any evidence—including but not limited to witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence. This information must be disclosed regardless of whether it is likely to make the difference between conviction and acquittal of the defendant for a charged crime.
    3. Information. Unlike the requirements of Brady and its progeny, which focus on evidence, the disclosure requirement of this section applies to information regardless of whether the information subject to disclosure would itself constitute admissible evidence.
    4. Cumulative impact of items of information. While items of information viewed in isolation may not reasonably be seen as meeting the standards outlined in paragraphs 1 and 2 above, several items together can have such an effect. If this is the case, all such items must be disclosed.
  4. Timing of disclosure. Due process requires that disclosure of exculpatory and impeachment evidence material to guilt or innocence be made in sufficient time to permit the defendant to make effective use of that information at trial. See, e.g. Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993). In most cases, the disclosures required by the Constitution and this policy will be made in advance of trial.
    1. Exculpatory information. Exculpatory information must be disclosed reasonably promptly after it is discovered. This policy recognizes that exculpatory information that includes classified or otherwise sensitive national security material may require certain protective measures that may cause disclosure to be delayed or restricted (e.g. pursuant to the Classified Information Procedures Act).
    2. Impeachment information. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. In some cases, however, a prosecutor may have to balance the goals of early disclosure against other significant interests—such as witness security and national security—and may conclude that it is not appropriate to provide early disclosure. In such cases, required disclosures may be made at a time and in a manner consistent with the policy embodied in the Jencks Act, 18 U.S.C. § 3500.
    3. Exculpatory or impeachment information casting doubt upon sentencing factors. Exculpatory and impeachment information that casts doubt upon proof of an aggravating factor at sentencing, but that does not relate to proof of guilt, must be disclosed no later than the court’s initial presentence investigation.
    4. Supervisory approval and notice to the defendant. A prosecutor must obtain supervisory approval not to disclose impeachment information before trial or not to disclose exculpatory information reasonably promptly because of its classified nature. Upon such approval, notice must be provided to the defendant of the time and manner by which disclosure of the exculpatory or impeachment information will be made.
  5. Training. All new federal prosecutors assigned to criminal matters and cases shall complete, within 12 months of employment, designated training through the Office of Legal Education on Brady/Giglio, and general disclosure obligations and policies. All federal prosecutors assigned to criminal matters and cases shall annually complete two hours of training on the government’s disclosure obligations and policies. This annual training shall be provided by the Office of Legal Education or, alternatively, any United States Attorney’s Office or DOJ component.
  6. Comment. This policy establishes guidelines for the exercise of judgment and discretion by attorneys for the government in determining what information to disclose to a criminal defendant pursuant to the government’s disclosure obligation as set out in Brady v. Maryland and Giglio v. United States and its obligation to seek justice in every case. This policy also establishes training requirements for federal prosecutors in this area. As the Supreme Court has explained, disclosure is constitutionally required when evidence in the possession of the prosecutor or prosecution team is material to guilt, innocence or punishment. Under this policy, the government’s disclosure will exceed its constitutional obligations. Thus, this policy encourages prosecutors to err on the side of disclosure in close questions of materiality and identifies standards that favor greater disclosure in advance of trial through the production of exculpatory information that is inconsistent with any element of any charged crime and impeachment information that casts a substantial doubt upon either the accuracy of any evidence the government intends to rely on to prove an element of any charged crime or that might have a significant bearing on the admissibility of prosecution evidence. This expanded disclosure policy, however, does not create a general right of discovery in criminal cases. Nor does it provide defendants with any additional rights or remedies. Where it is unclear whether evidence or information should be disclosed, prosecutors are encouraged to reveal such information to defendants or to the court for inspection in camera and, where applicable, seek a protective order from the Court. By doing so, prosecutors will ensure confidence in fair trials and verdicts. The United States Attorneys’ Offices and Department components involved in criminal prosecutions are also encouraged to undertake periodic training for paralegals and to cooperate with and assist law enforcement agencies in providing education and training to agency personnel concerning the government’s disclosure obligations and developments in relevant case law.[updated January 2020] [cited in JM 9-5.100]

 

9-5.002- CRIMINAL DISCOVERY

The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).  Section 9-5.001 of the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment information. In order to meet discovery obligations in a given case, Federal prosecutors must be familiar with these authorities and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet their discovery obligations in each case.  Toward that end, the Department has adopted the policies for prosecutors regarding criminal discovery set forth below. These policies are intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice.  The policies are subject to legal precedent, court orders, and local rules.

 

By following the steps described below and being familiar with laws and policies regarding discovery obligations, prosecutors are more likely to meet all legal requirements, to make considered decisions about disclosures in a particular case, and to achieve a just result in every case. Prosecutors are reminded to consult with the designated criminal discovery coordinator in their office when they have questions about the scope of their discovery obligations. Rules of Professional Conduct in most jurisdictions also impose ethical obligations on prosecutors regarding discovery in criminal cases. Prosecutors are also reminded to contact the Professional Responsibility Advisory Office when they have questions about those or any other ethical responsibilities.

 

Step I: Gathering and Reviewing Discoverable Information

“Discovery” or “discoverable information,” and the duty to search for it, includes information required to be disclosed by Fed.R.Crim.P. 16 and 26.2, the Jencks Act, Brady, and Giglio, and additional information disclosable pursuant to this policy.

 

A. Where to look: The Prosecution Team

JM 9-5.001 states:

It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecutionteam. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.

This search duty also extends to information prosecutors are required to disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.

In most cases, “the prosecution team” will include the agents and law enforcement officers within the relevant district working on the case. In multi-district investigations, investigations that include both Assistant United States Attorneys and prosecutors from a Department litigating component or other United States Attorney’s Office (USAO), and parallel criminal and civil proceedings, this definition will necessarily be adjusted to fit the circumstances. In addition, in complex cases that involve parallel proceedings with regulatory agencies (SEC, FDIC, EPA, etc.), or other non-criminal investigative or intelligence agencies, the prosecutor should consider whether the relationship with the other agency is close enough to make it part of the prosecution team for discovery purposes.

 

Some factors to be considered in determining whether to review potentially discoverable information from another federal agency include:

  • Whether the prosecutor and the agency conducted a joint investigation or shared resources related to investigating the case;
  • Whether the agency played an active role in the prosecution, including conducting arrests or searches, interviewing witnesses, developing prosecutorial strategy, participating in targeting discussions, or otherwise acting as part of the prosecution team;
  • Whether the prosecutor knows of and has access to discoverable information held by the agency;
  • Whether the prosecutor has obtained other information and/or evidence from the agency;
  • The degree to which information gathered by the prosecutor has been shared with the agency;
  • Whether a member of an agency has been made a Special Assistant United States Attorney;
  • The degree to which decisions have been made jointly regarding civil, criminal, or administrative charges; and
  • The degree to which the interest’s of the parties in parallel proceedings diverge such that information gathered by one party is not relevant to the other party.

Many cases arise out of investigations conducted by multi-agency task forces or otherwise involving state law enforcement agencies. In such cases, prosecutors should consider (1) whether state or local agents are working on behalf of the prosecutor or are under the prosecutor’s control; (2) the extent to which state and federal governments are part of a team, are participating in a joint investigation, or are sharing resources; and (3) whether the prosecutor has ready access to the evidence. Courts will generally evaluate the role of a state or local law enforcement agency on a case-by-case basis. Therefore, prosecutors should make sure they understand the law in their circuit and their office’s practice regarding discovery in cases in which a state or local agency participated in the investigation or on a task force that conducted the investigation.

 

Prosecutors are encouraged to err on the side of inclusiveness when identifying the members of the prosecution team for discovery purposes. Carefully considered efforts to locate discoverable information are more likely to avoid future litigation over Brady and Giglio issues and avoid surprises at trial.

 

Although the considerations set forth above generally apply in the context of national

security investigations and prosecutions, special complexities arise in that context.  Prosecutors should begin considering potential discovery obligations early in an investigation that has national security implications and should also carefully evaluate their discovery obligations prior to filing charges.  This evaluation should consider circuit and district precedent and include consultation with national security experts in their own offices and in the National Security Division.

 

B.  What to Review

To ensure that all discovery is disclosed on a timely basis, generally all potentially discoverable material within the custody or control of the prosecution team should be reviewed.  The review process should cover the following areas;

  1. The Investigative Agency’s Files: With respect to Department of Justice law enforcement agencies, with limited exceptions, the prosecutor should be granted access to the substantive case file and any other file or document the prosecutor has reason to believe may contain discoverable information related to the matter being prosecuted.[1]  Therefore, the prosecutor can personally review the file or documents or may choose to request production of potentially discoverable materials from the case agents. With respect to outside agencies, the prosecutor should request access to files and/or production of all potentially discoverable material.  The investigative agency’s entire investigative file, including documents such as FBI Electronic Communications (ECs), inserts, emails, etc. should be reviewed for discoverable information. If such information is contained in a document that the agency deems to be an “internal” document such as an email, an insert, an administrative document, or an EC, it may not be necessary to produce the internal document, but it will be necessary to produce all of the discoverable information contained in it. Prosecutors should also discuss with the investigative agency whether files from other investigations or non-investigative files such as confidential source files might contain discoverable information. Those additional files or relevant portions thereof should also be reviewed as necessary.
  2. Confidential informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files: The credibility of cooperating witnesses or informants will always be at issue if they testify during a trial.  Therefore, prosecutors are entitled to access to the agency file for each testifying CI, CW, CHS, or CS.  Those files should be reviewed for discoverable information and copies made of relevant portions for discovery purposes. The entire informant/source file, not just the portion relating to the current case, including all proffer, immunity and other agreements, validation assessments, payment information, and other potential witness impeachment information should be included within this review.
    If a prosecutor believes that the circumstances of the case warrant review of a non-testifying source’s file, the prosecutor should follow the agency’s procedures for requesting the review of such a file.
    Prosecutors should take steps to protect the non-discoverable, sensitive information found within a CI, CW, CHS, or CS file.  Further, prosecutors should consider whether discovery obligations arising from the review of CI, CW, CHS, and CS files may be fully discharged while better protecting government or witness interests such as security or privacy via a summary letter to defense counsel rather than producing the record in its entirety.
    Prosecutors must always be mindful of security issues that may arise with respect to disclosures from confidential source files. Prior to disclosure, prosecutors should consult with the investigative agency to evaluate any such risks and to develop a strategy for addressing those risks or minimizing them as much as possible, consistent with discovery obligations
  3. Evidence and Information Gathered During the Investigation: Generally, all evidence and information gathered during the investigation should be reviewed, including anything obtained during searches or via subpoenas, etc.  As discussed more fully below in Step 2, in cases involving a large volume of potentially discoverable information, prosecutors may discharge their disclosure obligations by choosing to make the voluminous information available to the defense.
  4. Document or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in Parallel Civil Investigations: If a prosecutor has determined that a regulatory agency such as the SEC is a member of the prosecution team for purposes of defining discovery obligations, that agency’s files should be reviewed. Of course, if a regulatory agency is not part of the prosecution team but is conducting an administrative investigation or proceeding involving the same subject matter as a criminal investigation, prosecutors may very well want to ensure that those files are reviewed not only to locate discoverable information but to locate inculpatory information that may advance the criminal case. Where there is an ongoing parallel civil proceeding in which Department civil attorneys arc participating, such as a qui tam case, the civil case files should also be reviewed.
  5. Substantive Case-Related Communications: “Substantive” case-related communications may contain discoverable information. Those communications that contain discoverable information should be maintained in the case file or otherwise preserved in a manner that associates them with the case or investigation. “Substantive” case-related communications are most likely to occur (1) among prosecutors and/or agents, (2) between prosecutors and/or agents and witnesses and/or victims, and (3) between victim-witness coordinators and witnesses and/or victims. Such communications may be memorialized in emails, memoranda, or notes. “Substantive” communications include factual reports about investigative activity, factual discussions of the relative merits of evidence, factual information obtained during interviews or interactions with witnesses/victims, and factual issues relating to credibility. Communications involving case impressions or investigative or prosecutive strategies without more would not ordinarily be considered discoverable, but substantive case-related communications should be reviewed carefully to determine whether all or part of a communication (or the information contained therein) should be disclosed. Prosecutors should also remember that with few exceptions (see, e.g., Fed.R.Crim.P. 16(a)(I)(B)(ii)), the format of the information does not determine whether it is  discoverable. For example, material exculpatory information that the prosecutor receives during a conversation with an agent or a witness is no less discoverable than if that same information were contained in an email. When the discoverable information contained in an email or other communication is fully memorialized elsewhere, such as in a report of interview or other document(s), then the disclosure of the report of interview or other document(s) will ordinarily satisfy the disclosure obligation.
  6. Potential Giglio Information Relating to Law Enforcement Witnesses: Prosecutors should have candid conversations with the federal agents with whom they work regarding any potential Giglio issues, and they should follow the procedure established in JM 9-5.100 whenever necessary before calling the law enforcement employee as a witness. Prosecutors should be familiar with circuit and district court precedent and local practice regarding obtaining Giglio information from state and local law enforcement officers.
  7. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants: All potential Giglio information known by or in the possession of the prosecution team relating to non-law enforcement witnesses should be gathered and reviewed. That information includes, but is not limited to:
  • Prior inconsistent statements (possibly including inconsistent attorney proffers, see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008))
  • Statements or reports reflecting witness statement variations (see below)
  • Benefits provided to witnesses including:
    • Dropped or reduced charges
    • Immunity
    • Expectations of  downward departures or motions for reduction of sentence
    • Assistance in a state or local criminal proceeding
    • Considerations regarding forfeiture of assets
    • Stays of deportation or other immigration status considerations
    • S-Visas
    • Monetary benefits
    • Non-prosecution agreements
    • Letters to other law enforcement officials (e.g. stale prosecutors, parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf
    • Relocation assistance
    • Consideration or benefits to culpable or at risk third-parties
  • Other known conditions that could affect the witness’s bias such as:
    • Animosity toward defendant
    • Animosity toward a group of which the defendant is a member or with which the defendant is affiliated
    • Relationship with victim
    • Known but uncharged criminal conduct (that may provide an incentive to curry favor with a prosecutor)
  • Prior acts under Fed.R.Evid. 608
  • Prior convictions under Fed.R.Evid. 609
  • Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events
  1. Information Obtained in Witness Interviews: Although not required by law, generally speaking, witness interviews[2] should be memorialized by the agent.[3]  Agent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized. When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing). Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement and being disqualified from handling the case if the statement becomes an issue. If exigent circumstances make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present. Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not expected to testify, should be reviewed.
    1. Witness Statement Variations and the Duty to Disclose: Some witnesses’ statements will vary during the course of an interview or investigation. For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks. Material variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.
    2. Trial Preparation Meetings with Witnesses: Trial preparation meetings with witnesses generally need not be memorialized. However, prosecutors should be particularly attuned to new or inconsistent information disclosed by the witness during a pre-trial witness preparation session. New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of JM 9-5.001 even if the information is first disclosed in a witness preparation session. Similarly, if the new information represents a variance from the witness’s prior statements, prosecutors should consider whether memorialization and disclosure is necessary consistent with the provisions of subparagraph (a) above.
    3. Agent Notes: Agent notes should be reviewed if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview. Prosecutors should pay particular attention to agent notes generated during an interview of the defendant or an individual whose statement may be attributed to a corporate defendant. Such notes may contain information that must be disclosed pursuant to Fed.R.Crim.P. 16(a)(I)(A)-(C) or may themselves be discoverable under Fed.R.Crim.P. 16(a)(I)(B). See, e.g., United States v. Clark, 385 F.3d 609, 619-20 (6th Cir. 2004) and United States v. Vaffee, 380 F.Supp.2d 11, 2-14 (D. Mass. 2005).

Step 2:  Conducting the Review

 

Having gathered the information described above, prosecutors must ensure that the material is reviewed to identify discoverable information. It would be preferable if prosecutors could review the information themselves in every case, but such review is not always feasible or necessary. The prosecutor is ultimately responsible for compliance with discovery obligations.  Accordingly, the prosecutor should develop a process for review of pertinent information to ensure that discoverable information is identified. Because the responsibility for compliance with discovery obligations rests with the prosecutor, the prosecutor’s decision about how to conduct this review is controlling. This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself. In cases involving voluminous evidence obtained from third parties, prosecutors should consider providing defense access to the voluminous documents to avoid the possibility that a well-intentioned review process nonetheless fails to identify material discoverable evidence. Such broad disclosure may not be feasible in national security cases involving classified information.

 

Step 3: Making the Disclosures

 

The Department’s disclosure obligations are generally set forth in Fed.R.Crim.P. 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady, and Giglio (collectively referred to herein as “discovery obligations”). Prosecutors must familiarize themselves with each of these provisions and controlling case law that interprets these provisions. In addition, prosecutors should be aware that Section 9-5.001 details the Department’s policy regarding the disclosure of exculpatory and impeachment information and provides for broader disclosures than required by Brady and Giglio. Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations. If a prosecutor chooses this course, the defense should be advised that the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation beyond the discovery obligations set forth above.

 

  1. Considerations Regarding the Scope and Timing of the Disclosures: Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases.  It also provides a margin of error in case the prosecutor’s good faith determination of the scope of appropriate discovery is in error. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. But when considering providing discovery beyond that required by the discovery obligations or providing discovery sooner than required, prosecutors should always consider any appropriate countervailing concerns in the particular case, including, but not limited to: protecting victims and witnesses from harassment or intimidation; protecting the privacy interests of witnesses; protecting privileged information; protecting the integrity of ongoing investigations; protecting the trial from efforts at obstruction: protecting national security interests; investigative agency concerns; enhancing the likelihood of receiving reciprocal discovery by defendants; any applicable legal or evidentiary privileges; and other strategic considerations that enhance the likelihood of achieving a just result in a particular case. In most jurisdictions, reports of interview (ROIs) of testifying witnesses are not considered Jencks material unless the report reflects the statement of the witness substantially verbatim or the witness has adopted it. The Working Group determined that practices differ among the USAOs and the components regarding disclosure of ROIs of testifying witnesses. Prosecutors should be familiar with and comply with the practice of their offices.
    Prosecutors should never describe the discovery being provided as “open file.” Even if the prosecutor intends to provide expansive discovery, it is always possible that something will be inadvertently omitted from production and the prosecutor will then have unintentionally misrepresented the scope of materials provided. Furthermore, because the concept of the “file” is imprecise, such a representation exposes the prosecutor to broader disclosure requirements than intended or to sanction for failure to disclose documents, e.g., agent notes or internal memos, that the court may deem to have been part of the “file.”
    When the disclosure obligations are not clear or when the considerations above conflict with the discovery obligations, prosecutors may seek a protective order from the court addressing the scope, timing, and form of disclosures.
  2. Timing: Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. See JM 9-5.001. Section 9-5.001 also notes, however, that witness security, national security, or other issues may require that disclosures of impeachment information be made at a time and in a manner consistent with the policy embodied in the Jencks Act. Prosecutors should be attentive to controlling law in their circuit and district governing disclosure obligations at various stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing.
    Prosecutors should consult the local discovery rules for the district in which a case has been indicted. Many districts have broad, automatic discovery rules that require Rule 16 materials to be produced without a request by the defendant and within a specified time frame, unless a court order has been entered delaying discovery, as is common in complex cases. Prosecutors must comply with these local rules, applicable case law, and any final court order regarding discovery. In the absence of guidance from such local rules or court orders, prosecutors should consider making Rule 16 materials available as soon as is reasonably practical but must make disclosure no later than a reasonable time before trial. In deciding when and in what format to provide discovery, prosecutors should always consider security concerns and the other factors set forth in subparagraph A above. Prosecutors should also ensure that they disclose Fed.R.Crim.P. 16(a)(1)(E) materials in a manner that triggers the reciprocal discovery obligations in Fed.R.Crim.P. 16(b)(1).
    Discovery obligations are continuing, and prosecutors should always be alert to developments occurring up to and through trial of the case that may impact their discovery obligations and require disclosure of information that was previously not disclosed.
  3. Form of Disclosure: There may be instances when it is not advisable to turn over discoverable information in its original form, such as when the disclosure would create security concerns or when such information is contained in attorney notes, internal agency documents, confidential source documents, Suspicious Activity Reports, etc. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, including particular language, where pertinent, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.

Step 4: Making a Record

One of the most important steps in the discovery process is keeping good records regarding disclosures. Prosecutors should make a record of when and how information is disclosed or otherwise made available. While discovery matters are often the subject of litigation in criminal cases, keeping a record of the disclosures confines the litigation to substantive matters and avoids time-consuming disputes about what was disclosed. These records can also be critical when responding to petitions for post-conviction relief, which are often filed long after the trial of the case. Keeping accurate records of the evidence disclosed is no less important than the other steps discussed above, and poor records can negate all of the work that went into taking the first three steps.

Comment: Compliance with discovery obligations is important for a number of reasons. First and foremost, however, such compliance will facilitate a fair and just result in every case, which is the Department’s singular goal in pursuing a criminal prosecution. This section does not and could not answer every discovery question because those obligations are often fact specific. However, prosecutors have at their disposal an array of resources intended to assist them in evaluating their discovery obligations including supervisors, discovery coordinators in each office, the Professional Responsibility Advisory Office, and online resources available on the Department’s intranet website, not to mention the experienced career prosecutors throughout the Department. And, additional resources are being developed through efforts that will be overseen by a full-time discovery expert who will be detailed to Washington from the field. By evaluating discovery obligations pursuant to the methodical and thoughtful approach set forth in this guidance and taking advantage of available resources, prosecutors are more likely to meet their discovery obligations in every case and in so doing achieve a just and final result in every criminal prosecution.

[1] Nothing in this section alters the Department’s Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses contained in JM §9-5.100.

 

[2] Interview” as used herein refers to a formal question and answer session with a potential witness conducted for the purpose of obtaining information pertinent to a matter or case. It does not include conversations with a potential witness for the purpose of scheduling or attending to other ministerial matters. However, potential witnesses may provide substantive information outside of a formal interview. Substantive, case-related communications are addressed above.

 

[3] In those instances in which an interview was audio or video recorded, further memorialization will generally not be necessary.

 

[added December 2017]

 

9-5.003 – CRIMINAL DISCOVERY INVOLVING FORENSIC EVIDENCE AND EXPERTS

Forensic science covers a variety of fields, including such specialties as DNA testing, chemistry, and ballistics and impression analysis, among others. As a general guiding rule, and allowing for the facts and circumstances of individual cases, prosecutors should provide broad discovery relating to forensic science evidence as outlined here.  Disclosure of information relating to forensic science evidence in discovery does not mean that the Department concedes the admissibility of that information, which may be litigated simultaneously with or subsequent to disclosure.

 

The Duty to Disclose, Generally

 

The prosecution’s duty to disclose is generally governed by Federal Rules of Criminal Procedure 16 and 26.2, the Jencks Act (18 U.S.C. §3500), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). In addition, JM 9-5.001 of the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment material.

 

Rule 16 of the Federal Rules of Criminal Procedure establishes three disclosure responsibilities for prosecutors that may be relevant to forensic evidence.  First, under Fed.R.Crim.P. 16(a)(1)(F), the government must, upon request of the defense, turn over the results or reports of any scientific test or experiment (i) in the government’s possession, custody or control, (ii) that an attorney for the government knows or through due diligence could know, and (iii) that would be material to preparing the defense or that the government intends to use at trial. Second, under Fed. R. Crim. P. 16(a)(1)(G), if requested by the defense, the government must provide a written summary of any expert testimony the government intends to use at trial. At a minimum, this summary must include the witness’s opinions, the bases and reasons for those opinions, and the expert’s qualifications. Third, under Fed. R. Crim. P. 16(a)(1)(E), if requested by the defense, the government must produce documents and items material to preparing the defense that are in the possession, custody, or control of the government. This may extend to records documenting the tests performed, the maintenance and reliability of tools used to perform those tests, and/or the methodologies employed in those tests.

 

Both the Jencks Act and Brady/Giglio may also come into play in relation to forensic evidence. For example, a written statement (report, email, memo) by a testifying forensic witness may be subject to disclosure under the Jencks Act if it relates to the subject matter of his or her testimony. Information providing the defense with an avenue for challenging test results may be Brady/Giglio information that must be disclosed. And, for forensic witnesses employed by the government, Giglio information must be gathered from the employing agency and reviewed for possible disclosure. These are the minimum requirements, and the Department’s discovery policies call for disclosure beyond these thresholds.

 

The Duty to Disclose in Cases with Forensic Evidence and Experts

 

The Department’s policy to provide discovery over and above the minimum legal thresholds applies to cases with forensic evidence. Rule 16’s disclosure requirements – disclosing the results of scientific tests (16(a)(l)(F)), the witness’ written summary (16(a)(l)(G)), and documents and items material to preparing the defense (16(a)( l)(E)) – are often jointly satisfied when presenting expert forensic testimony, since disclosure of the test results, the bases for those results, and the expert’s qualifications will often provide all the necessary information material to preparation of the defense. But, depending on the complexity of the forensic evidence, or where multiple forensic tests have been performed, the process can be complicated because it may require the prosecutor to work in tandem with various forensic scientists to identify and prepare additional relevant information for disclosure. Although prosecutors generally should consult with forensic experts to understand the tests or experiments conducted, responsibility for disclosure ultimately rests with the prosecutor assigned to the case. In meeting obligations under Rule 16(a)(l)(E), (F), and (G), the Jencks Act, and Brady/Giglio, and to comply with the Department’s policies of broad disclosure, the prosecutor should be attuned to the following four steps:

 

  1. First, the prosecutor should obtain the forensic expert’s laboratory report, which is a document that describes the scope of work assigned, the evidence tested, the method of examination or analysis used, and the conclusions drawn from the analyses conducted. Depending on the laboratory, the report may be in written or electronic format; the laboratory may routinely route the report to the prosecutor, or the prosecutor may need to affirmatively seek the report from the forensic expert or his or her laboratory. In most cases the best practice is to turn over the forensic expert’s report to the defense if requested. This is so regardless of whether the government intends to use it at trial or whether the report is perceived to be material to the preparation of the defense. If the report contains personal information about a victim or witness, or other sensitive information, redaction may be appropriate and necessary. This may require court authorization if the forensic expert will testify, as the report likely will be considered a Jencks Act statement. (See the Additional Considerations section below.)

 

  1. Second, the prosecutor should disclose to the defense, if requested, a written summary for any forensic expert the government intends to call as an expert at trial. This statement should summarize the analyses performed by the forensic expert and describe any conclusions reached. Although the written summary will vary in length depending on the number and complexity of the tests conducted, it should be sufficient to explain the basis and reasons for the expert’s expected testimony. Oftentimes, an expert will provide this information in an “executive summary” or “synopsis” section at the beginning of a report or a “conclusion” section at the end. Prosecutors should be mindful to ensure that any separate summary provided pursuant to Rule 16(a) should be consistent with these sections of the report. Further, any changes to an expert’s opinion that are made subsequent to the initial disclosure to the defense ordinarily should be made in writing and disclosed to the defense.

 

  1. Third, if requested by the defense, the prosecutor should provide the defense with a copy of, or access to, the laboratory or forensic expert’s “case file,” either in electronic or hard-copy form. This information, which may be kept in an actual file or may be compiled by the forensic expert, normally will describe the facts or data considered by the forensic expert, include the underlying documentation of the examination or analysis performed, and contain the material necessary for another examiner to understand the expert’s report. The exact material contained in a case file varies depending on the type of forensic analysis performed. It may include such items as a chain-of-custody log; photographs of physical evidence; analysts’ worksheets or bench notes; a scope of work; an examination plan; and data, charts and graphs that illustrate the results of the tests conducted.In some circumstances, the defense may seek laboratory policies and protocols. To the extent that a laboratory provides this information online, the prosecutor may simply share the web address with the defense. Otherwise, determinations regarding disclosure of this information should be made on a case-by-case basis in consultation with the forensic analysts involved, taking into account the particularity of the defense’s request and how relevant the request appears to be to the anticipated defenses.

 

  1. Fourth, the prosecutor should provide to the defense information on the expert’s qualifications. Typically, this material will include such items as the expert’s curriculum vitae, highlighting relevant education, training and publications, and a brief summary that describes the analyst’s synopsis of experience in testifying as an expert at trial or by deposition. The prosecutor should gather potential Giglio information from the government agency that employs the forensic expert. If using an independent retained forensic expert, the prosecutor should disclose the level of compensation as potential Giglio information; the format of this disclosure is left to the discretion of the individual prosecuting office. Disclosure should be made according to local rules but at least as soon as is reasonably practical and, of course, reasonably in advance of trial. It is important that the prosecutor leave sufficient time to obtain documents and prepare information ahead of disclosure. When requesting supporting documents from a laboratory’s file regarding a forensic examination, the prosecutor should consult the guidelines set by the laboratory for the manner in which discovery requests should be made, and for the time required for them to process and deliver the materials to the prosecutor. Further, if multiple forensic teams have worked on a case, the prosecutor should build in sufficient time to consult with, and obtain relevant materials from, each relevant office or forensic expert.

Additional Considerations

 

Certain situations call for special attention. These may include cases with classified information or when forensic reports reveal the identities of cooperating witnesses or undercover officers, or disclose pending covert investigations. In such cases, when redaction or a protective order may be necessary, prosecutors should ordinarily consult with supervisors.

 

Laboratory case files may include written communications, including electronic communication such as emails, between forensic experts or between forensic experts and prosecutors. Prosecutors should review this information themselves to determine which communications, if any, are protected and which in formation should be disclosed under Brady/Giglio, Jencks, or Rule 16. If the circumstances warrant (for example, where review of a case file indicates that tests in another case or communications outside the case file may be relevant), prosecutors should request to review additional materials outside the case file.

 

Finally, when faced with questions about disclosure, prosecutors should consult with a supervisor, as the precise documents to disclose tend to evolve, based especially upon the practice of particular laboratories, the type and manner of documentation at the laboratory, and current rulings from the courts.

 

[added December 2017]

9-5.004 – GUIDANCE ON THE USE, PRESERVATION, AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS IN FEDERAL CRIMINAL CASES

All prosecution team members should be aware of the government’s obligations regarding the preservation and disclosure of electronic communications, or “e-communications,” which include emails, text messages, SMS (short message service), instant messages, voice mail, pin-to-pin communications, and similar means of electronic communication.  Although e‑communications offer benefits in the form of speed and efficiency, all team members should understand that case-related e‑communications may potentially be disclosed to the defense.  Thus, all team members should understand the risks of e‑communications; the need to comply with agency rules regarding documentation and record-keeping during an investigation; the importance of careful and professional communication; and the obligation to preserve and produce such communications when appropriate.  All members of the prosecution team, including federal, state, and local law enforcement officers, are responsible for making available to the prosecutor all potentially discoverable e‑communications.  It is the prosecutor’s responsibility to oversee the gathering, review, and production of discovery.  The prosecutor should discuss these matters with all members of the prosecution team at the outset and during the investigation.

The following guidance applies at all phases of a criminal case including investigation, trial preparation, trial, and post-trial:

  • Prosecution team members should exercise the same care in generating case-related e-communications that they exercise when drafting more formal reports, and only write and send e-communications that are appropriate for displaying to the court, the jury, and the public.

  • Prosecution team members should exercise caution when using e-communications with non-law enforcement witnesses.  Individuals not on the prosecution team, including victims, lay witnesses, and outside experts, should be informed that e-communications are a written record that may be disclosed to the defense and that appropriate care should be exercised.
  • Substantive e-communications among prosecution team members, including communications containing factual information relating to witnesses, evidence, or investigative activity, should be avoided except when, to meet operational needs, they are the most effective means of communication. Substantive case information should be recorded in formal reports.
  • E-communications, like formal reports, should state facts accurately and completely; be professional in tone; and avoid witticism, careless commentary, opinion, or over-familiarity in tone.
  • Prosecution team members should not use personally owned electronic communication devices, personal email accounts, social networking sites, or similar accounts to transmit case-related information to witnesses or other team members.
  • Prosecution team members should preserve for later review and possible disclosure all substantive e-communications created or received by team members during the course of an investigation and prosecution, and all e-communications sent to or received from lay witnesses, regardless of content.
  • E-communications should be preserved in their native electronic format; when that is not feasible, another method of preservation should be identified and used.
  • If the e-communication contains sensitive information, the prosecutor should consider whether to file a motion for a protective order, seek supervisory approval to delay disclosure, make appropriate redactions, summarize the substance of an e‑communication in a letter rather than disclosing the e-communication itself, or take other safeguarding measures.  Sensitive information includes information that would affect the privacy or safety of any person, reveal investigative techniques or national security information, or compromise the integrity of another investigation.  If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.
  • Prosecutors handling an investigation or case involving national security related issues or intelligence community equities should consult with the National Security/Anti-Terrorism Advisory Council (ATAC) Coordinator in their office and/or the National Security Division for specific guidance on searching for, gathering, reviewing, and disclosing communications in these areas, as well as special procedures (such as the Classified Information Procedures Act, or “CIPA”) that may apply.

For background and additional guidance on these matters, see the March 30, 2011, Deputy Attorney General Cole memorandum, Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.*

*Note that the discussion of personal use of social media in Deputy Attorney General Cole’s 2011 memorandum has been superseded by JM 1-9.000 (Personal Use of Social Media).

[added December 2019]

9-5.100 – POLICY REGARDING THE DISCLOSURE TO PROSECUTORS OF POTENTIAL IMPEACHMENT INFORMATION CONCERNING LAW ENFORCEMENT AGENCY WITNESSES (“GIGLIO POLICY”)

On December 9, 1996, the Attorney General issued a Policy regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”). It applies to all Department of Justice Investigative agencies that are named in the Preface below. On October 19, 2006, the Attorney General amended this policy to conform to the Department’s new policy regarding disclosure of exculpatory and impeachment information, see JM 9-5.001. On July 11, 2014, the policy was revised in several respects, including with regard to the candid conversation between a prosecutor and an agency employee; the definition of impeachment information; record-keeping; information that must be provided to agencies; the transfer of Giglio-related information between prosecuting offices; and the notification of a prosecuting office of Giglio issues when an agency employee is transferred to a new district.

In early 1997, the Secretary of the Treasury issued the 1996 version of the Giglio Policy for all Treasury investigative agencies, and that policy remains in effect for Treasury investigative agencies.

Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”)

Preface: The following policy is established for: the Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, the United States Marshals Service, the Department of Justice Office of the Inspector General, and the Department of Justice Office of Professional Responsibility (“the investigative agencies”). It addresses their disclosure of potential impeachment information to the United States Attorneys’ Offices and Department of Justice litigating sections with authority to prosecute criminal cases (“Department of Justice prosecuting offices”). The purposes of this policy are to ensure that prosecutors receive sufficient information to meet their obligations under Giglio v. United States, 405 U.S. 150 (1972), and to ensure that trials are fair, while protecting the legitimate privacy rights of Government employees. NOTE: This policy is not intended to create or confer any rights, privileges, or benefits to prospective or actual witnesses or defendants. It is also not intended to have the force of law. United States v. Caceres, 440 U.S. 741 (1979).

The exact parameters of potential impeachment information are not easily determined. Potential impeachment information, however, has been generally defined as impeaching information which is material to the defense. It also includes information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.[FN1] This information may include but is not strictly limited to: (a) specific instances of conduct of a witness for the purpose of attacking the witness’ credibility or character for truthfulness; (b) evidence in the form of opinion or reputation as to a witness’ character for truthfulness; (c) prior inconsistent statements; and (d) information that may be used to suggest that a witness is biased.

FN1. The italicized language was added in 2006 when JM 9-5.001 was issued. It broadens the definition of “potential impeachment information.”

This policy is not intended to replace the obligation of individual agency employees to inform prosecuting attorneys with whom they work of potential impeachment information prior to providing a sworn statement or testimony in any investigation or case. In the majority of investigations and cases in which agency employees may be affiants or witnesses, it is expected that the prosecuting attorney will be able to obtain all potential impeachment information directly from agency witnesses during the normal course of investigations and/or preparation for hearings or trials.

This policy is intended to provide guidance to prosecuting offices and investigative agencies regarding what potential impeachment information must be produced to the prosecuting office. It does not address the issue of what information the prosecution must produce to the defense, or to the court for ex parte, in camera review. That determination can only be made after considering the potential impeachment information in light of the role of the agency witness, the facts of the case, and known or anticipated defenses, and after considering JM 9-5.001, relevant Department guideance, the Federal Rules of Evidence, case law, local court rulings and judicial predisposition, and other relevant guidance, policy, regulations and laws.

Procedures for Disclosing Potential Impeachment Information Relating to Department of Justice Employees

  1. Obligation to Disclose Potential Impeachment Information. It is expected that a prosecutor generally will be able to obtain all potential impeachment information directly from potential agency witnesses and/or affiants. Prosecutors should have a candid conversation with each potential investigative agency witness and/or affiant with whom they work regarding any on-duty or off-duty potential impeachment information, including information that may be known to the public but that should not in fact be the basis for impeachment in a federal criminal court proceeding, so that prosecuting attorneys can take appropriate action, be it producing the material or taking steps to preclude its improper introduction into evidence. Likewise, each investigative agency employee is obligated to inform prosecutors with whom they work of potential impeachment information as early as possible prior to providing a sworn statement or testimony in any criminal investigation or case. Each investigative agency should ensure that its employees fulfill this obligation. Potential impeachment information that may relate directly to agency employee witnesses is defined more fully in paragraphs 5 and 6.Because there are times when an agency employee will be unaware that he or she is the subject of a pending investigation, prosecutors will receive the most comprehensive potential impeachment information by having both the candid conversation with the agency employee and by submitting a request for potential impeachment information to the investigative agency. Therefore, in all cases, a prosecutor should carefully consider and is encouraged to request potential impeachment information from the investigative agency. This policy sets forth procedures for those cases in which a prosecutor decides to make such a request.
  2. Agency Officials. Each of the investigative agencies shall designate an appropriate official(s) to serve as the point(s) of contact concerning Department of Justice employees’ potential impeachment information (“the Agency Official”). Each Agency Official shall consult periodically with the relevant Requesting Officials about Supreme Court case law, circuit case law, and district court rulings and practice governing the definition and disclosure of impeachment information.
  3. Requesting Officials. Each of the Department of Justice prosecuting offices shall designate one or more senior official(s) to serve as the point(s) of contact concerning potential impeachment information (“the Requesting Official”). Each Requesting Official shall inform the relevant Agency Officials about Supreme Court case law, circuit case law, and district court rulings and practice governing the definition and disclosure of impeachment information.
  4. Request to Agency Officials. Upon initiation of a case or matter within the prosecuting office, or anytime thereafter, a prosecutor may request potential impeachment information relating to an agency employee associated with that case or matter. The prosecutor shall notify the appropriate Requesting Official, who may request potential impeachment information relating to the employee from the employing Agency Official(s) and the designated Agency Official(s) in the Department of Justice Office of the Inspector General (“DOJ-OIG”) and the Department of Justice Office of Professional Responsibility (“DOJ-OPR”).
  5. Disclosure of Potential Impeachment Information by Agency Employee and Agency(a) Agency Review and Disclosure. Upon receiving the request described in Paragraph 4, the Agency Official(s) from the employing agency, the DOJ-OIG, and the DOJ-OPR shall each conduct a review, in accordance with its respective agency plan, for potential impeachment information regarding the identified employee.(b) Agency Employee. Before serving as an affiant or witness in any case or matter, the agency employee shall advise the prosecuting attorney(s) of the existence of any potential impeachment information. Potential impeachment information can include both on-duty and off-duty conduct. Prosecutors should be mindful that some potential impeachment information, including potential impeachment information stemming from off-duty conduct, may not be in agency files and may only be known to the agency employee.(c) Potential Impeachment Information. Agency witnesses and Agency Officials should make broad disclosures of potential impeachment information to the prosecutor so that the prosecutor can assess the information in light of the role of the agency witness, the facts of the case, and known or anticipated defenses, among other variables. Potential impeachment information is defined in the Federal Rules of Evidence, case law, unpublished court rulings, and Department of Justice policy and guidance. Unless advised by a Giglio Requesting Official or prosecutor that case law or court rulings in the district require broader disclosures, potential impeachment information relating to agency employees may include, but is not limited to, the categories listed below:

    i) any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor during a criminal, civil, or administrative inquiry or proceeding;ii) any past or pending criminal charge brought against the employee;

    iii) any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation;

    iv) prior findings by a judge that an agency employee has testified untruthfully, made a knowing false statement in writing, engaged in an unlawful search or seizure, illegally obtained a confession, or engaged in other misconduct;

    v) any misconduct finding or pending misconduct allegation that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—that the prosecutor intends to rely on to prove an element of any crime charged, or that might have a significant bearing on the admissibility of prosecution evidence. Accordingly, agencies and employees should disclose findings or allegations that relate to substantive violations concerning:

    (1) failure to follow legal or agency requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications;(2) failure to comply with agency procedures for supervising the activities of a cooperating person (C.I., C.S., CHS, etc.);

    (3) failure to follow mandatory protocols with regard to the forensic analysis of evidence;

    vi) information that may be used to suggest that the agency employee is biased for or against a defendant (See United States v. Abel, 469 U.S. 45, 52 (1984). The Supreme Court has stated, “[b]ias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.”); andvii) information that reflects that the agency employee’s ability to perceive and recall truth is impaired.

  6. Treatment of Allegations Which Are Unsubstantiated, Not Credible, or Have Resulted in Exoneration. Allegations that cannot be substantiated, are not credible, or have resulted in the exoneration of an employee generally are not considered to be potential impeachment information. Upon request, such information which reflects upon the truthfulness or bias of the employee, to the extent maintained by the agency, will be provided to the prosecuting office under the following circumstances: (a) when the Requesting Official advises the Agency Official that it is required by a Court decision in the district where the investigation or case is being pursued; (b) when, on or after the effective date of this policy: (i) the allegation was made by a federal prosecutor, magistrate judge, or judge; or (ii) the allegation received publicity; (c) when the Requesting Official and the Agency Official agree that such disclosure is appropriate, based upon exceptional circumstances involving the nature of the case or the role of the agency witness; or (d) when disclosure is otherwise deemed appropriate by the agency. The agency is responsible for advising the prosecuting office, to the extent determined, whether any aforementioned allegation is unsubstantiated, not credible, or resulted in the employee’s exoneration.Note. With regard to allegations disclosed to a prosecuting office under this paragraph, the GiglioRequesting Official shall ensure that special care is taken to protect the confidentiality of such information and the privacy interests and reputations of agency employee-witnesses, in accordance with paragraphs 7(b) and 12 below.
  7. Prosecuting Office Records(a) Information in System of Records. For the purpose of ensuring that potential impeachment information is handled consistently within a prosecuting office, whenever potential impeachment information has been disclosed to the court or defense, or when a decision has been made that an agency employee should not testify or serve as an affiant because of potential impeachment information, Department of Justice prosecuting offices may retain the following types of information in a Giglio system of records that can be accessed by the identity of the disclosing agency’s employee:

    i) the potential impeachment information;ii) any written analysis or substantive communications, including legal advice, relating to that disclosure or decision; and

    iii) any related pleadings or court orders.

    In all other circumstances, prosecuting offices may keep any written legal analysis and substantive communications integral to the analysis, including legal advice relating to the decision, and a summary of the potential impeachment information in the Giglio system of records. The complete description of the potential impeachment information received from the Agency Official may be maintained in the criminal case file, but it may not be maintained in the Giglio system of records.(b) Secure Records with Limited Access. Giglio Requesting Official(s) shall ensure that the information in their office’s Giglio system of records is securely maintained and is accessible only upon a request to a Giglio Requesting Official or other senior management entrusted with this responsibility. The information shall only be disclosed to requesting prosecutors within that office on a case-related, need-to-know basis. It should be noted that much of the information in the Gigliosystem of records is sensitive information which if released or reviewed without a case-related need could negatively impact the privacy and reputation of the agency-employee to whom it relates, and could violate the Privacy Act.

    (c) Duty to Update. Before any prosecutor or Giglio Requesting Official uses or relies upon information included in the prosecuting office’s Giglio system of records, the Requesting Official shall contact the relevant Agency Official(s) to determine the status of the potential impeachment information, the Agency Official(s) shall provide an update, and the Requesting Official shall update the prosecuting office’s Giglio system of records to ensure that the information in the system of records is accurate.

  8. Information That Must Be Provided to Agencies. When Agency Officials have provided potential impeachment information to a Requesting Official, the Requesting Official shall inform the employing Agency Official how the prosecuting office used the information. A circumstance may arise in which a prosecutor or Requesting Official learns of potential impeachment information relating to an agency employee from a source other than the agency—including but not limited to the agency employee. In such circumstance, the Requesting Official shall notify the Agency Official of such information and provide the Agency with a timely opportunity to meaningfully express its views regarding the information, as required by Paragraph12. Regardless of the source of the information, the Requesting Official will:

    (a) advise the employing Agency Official whether the employee provided an affidavit or testimony in a criminal proceeding or whether a decision was made not to use the employee as a witness or affiant because of potential impeachment issues;(b) advise the employing Agency Official whether the information was disclosed to a Court or to the defense and, if so, whether the Court ruled that the information was admissible for use as impeachment information; and

    (c) provide the employing Agency Official a copy of any related pleadings, and any judicial rulings, findings or comments relating to the use of the potential impeachment information.

    The agency shall maintain judicial rulings and related pleadings on information that was disclosed to the Court or the defense in a manner that allows expeditious access upon the request of any Requesting Official.

  9. Continuing Duty to Disclose. Each agency plan shall include provisions which will assure that, once a request for potential impeachment information has been made, the prosecuting office will be made aware of any additional potential impeachment information that arises after such request and during the pendency of the specific criminal case or investigation in which the employee is a potential witness or affiant. A prosecuting office which has made a request for potential impeachment information shall promptly notify the relevant agency when the specific criminal case or investigation for which the request was made ends in a judgment or declination, at which time the agency’s duty to disclose shall cease.
  10. Providing Records and Information to Another Federal Prosecuting Office and Disposition of Records(a) Distribution of Information to Another Federal Prosecuting Office with Notice to Agency Official(s). If an agency employee has been transferred to another judicial district, or will testify or serve as an affiant in another judicial district, the prosecuting office in the originating district may provide any relevant information from its Giglio system of records relating to that agency employee to a Giglio Requesting Official in the new district. Moreover, nothing shall prohibit the Requesting Official in the new district from consulting with the Requesting Official in the former district about the manner in which the former district handled certain potential impeachment information.The Giglio Requesting Official(s) providing the information shall notify the Agency Official(s) when distributing materials from its Giglio system of records to another prosecuting office, unless the information relates to pending investigations or other incomplete matters, the status of which may have changed or been resolved favorably to the agency employee. With regard to pending investigations or other incomplete matters, to avoid the unnecessary disclosure of potentially derogatory information regarding an agency employee, the Giglio Requesting Official transferring the information shall notify the relevant Agency Official(s) before providing any information to another prosecuting office, except as noted in paragraph 13. The Agency Official(s) shall provide a prompt update. Whether notice is provided before or contemporaneously with the transfer, the GiglioRequesting Official shall also advise the Agency Official(s) what materials will be or have been distributed.(b) Duty to Update. The Requesting Official in the new prosecuting office shall seek an update from Agency Official(s) as part of the Giglio analysis, and shall allow the agency the timely opportunity to fully express their views as required by Paragraph 12 and to provide an update. The Requesting Official in the new district is not bound by the former district’s decisions regarding disclosure of information to the Court or defense, or use of the agency employee as a witness or affiant, and should review the former district’s information along with other relevant information, when making an independent decision regarding disclosure to the Court or defense, use of the agency employee as a witness or affiant, and other related issues.(c) Removal of Records Upon Transfer, Reassignment, or Retirement of Employee. Upon being notified that an agency employee has retired, been transferred to an office in another judicial district, or been reassigned to a position in which the employee will neither be an affiant nor witness, and subsequent to the resolution of any litigation pending in the prosecuting office in which the agency employee was involved, the Requesting Official shall remove from the prosecuting office’s system of records any record that can be accessed by the identity of the employee. More specifically, the records must be removed at the conclusion of the direct and collateral appeals, if any, or within one year of the agency employee’s retirement, transfer, or reassignment, whichever is later.
  11. Notification. When an agency employee is transferred to a new district, the Agency shall ensure that a Requesting Official in the new district is advised of any potential impeachment material known to the Agency when the employee begins meaningful work on a case or matter within the prosecuting district or is reasonably anticipated to begin meaningful work on such a case or matter.
  12. Prosecuting Office Plans to Implement Policy. Each prosecuting office shall develop a plan to implement this policy. The plan shall include provisions that require: (a) communication by the prosecuting office with the Agency Official about the disclosure of potential impeachment information to the Court or defense counsel, including indicating what materials are being distributed, and allowing for the Agency to promptly update the information and express its views on whether certain information should be disclosed to the Court or defense counsel; (b) preserving the security and confidentiality of potential impeachment information through proper storage and restricted access within a prosecuting office; (c) when appropriate, seeking an ex parte, in camera review and decision by the Court regarding whether potential impeachment information must be disclosed to defense counsel; (d) when appropriate, seeking protective orders to limit the use and further dissemination of potential impeachment information by defense counsel; (e) allowing the relevant agencies the timely opportunity to fully express their views; and (f) information contained within the Giglio system of records may not be disclosed to persons outside of the Department of Justice except in a criminal case to which the United States is a party, and where otherwise authorized by law, regulation, or court order.
  13. Exception to Requirements Regarding Providing Notice to Agencies and Soliciting Agency Views. In rare circumstances, a Giglio issue may arise immediately before or during a court proceeding, and a prosecuting office may determine that it does not have time to solicit the agency’s views or provide notice before it must take action on the matter. In such a case, the prosecuting office shall provide notice or solicit agency views as promptly as the circumstances reasonably permit. Many situations of this type can be avoided by ensuring that prosecutors and agency employee witnesses have candid conversations and that prosecutors submit formal Giglio requests sufficiently in advance of any proceedings.
  14. Investigative Agency Plans to Implement Policy. Each investigative agency shall develop a plan to effectuate this policy.[updated January 2020]

9-5.110 – TESTIMONY OF FBI LABORATORY EXAMINERS

In situations where FBI laboratory examinations have resulted in findings having no apparent probative value, yet defense counsel intends to subpoena the examiner to testify, the United States Attorney (USA) should inform defense counsel of the FBI’s policy requiring payment of the examiner’s travel expenses by defense counsel. The USA should also attempt to secure a stipulation concerning this testimony. This will avoid needless expenditures of time and money attendant to the appearance of the examiner in court.

[updated December 2006]

9-5.150 – AUTHORIZATION TO CLOSE JUDICIAL PROCEEDINGS TO MEMBERS OF THE PRESS AND PUBLIC

Procedures and standards regarding the closure of judicial proceedings to members of the press and public are set forth in 28 C.F.R. § 50.9. Government attorneys may not move for or consent to the closure of any criminal proceeding without the express prior authorization of the Deputy Attorney General.

There is a strong presumption against closing proceedings, and the Department foresees very few cases in which closure would be warranted. Only when a closed proceeding is plainly essential to the interests of justice should a Government attorney seek authorization from the Deputy Attorney General to move for or consent to closure of a judicial proceeding. Government attorneys should be mindful of the right of the public to attend judicial proceedings and the of the Department’s obligation to the fair administration of justice.

Any request for authorization to move for or consent to closure, in addition to setting forth the relevant and procedural background, should include a detailed explanation of the need for closure, addressing each of the factors set forth in 28 C.F.R. § 50.9(c)(1)-(6). In particular, the request should address in detail how an open proceeding will create a substantial likelihood of danger to specified individuals; how ongoing investigations will be jeopardized; or how a person’s right to a fair trial will be impaired. The request must also consider reasonable alternatives to closure, such as delaying the proceeding, if possible, until the reasons justifying closure cease to exist. An applicable form is available to Department attorneys.

Whenever authorization to close a judicial proceeding is being sought pursuant to 28 C.F.R. § 50.9 in a case or matter under the supervision of the Criminal Division, the request should be directed to the Policy and Statutory Enforcement Unit, Office of Enforcement Operations. In cases or matters under the supervision of other divisions of the Department of Justice, the appropriate division should be contacted.

Because of the vital public interest in open judicial proceedings, every 60 days after termination of any proceeding closed pursuant to 28 C.F.R. § 50.9, Government attorneys must review the records of the proceedings to determine whether the reasons for closure still apply. As soon as the justification for closure ceases to exist, the Government must file an appropriate motion to have the records unsealed. See 28 C.F.R. § 50.9(f). While the Criminal Division monitors compliance with this requirement, it is the affirmative obligation of the U.S. Attorney’s Offices to ensure that sealed records are reviewed in accordance with the regulation’s requirements. U.S. Attorney’s Offices should acknowledge this obligation in any request for authorization to move for or consent to closure. source

[updated January 2020]

The Prosecutor’s Disclosure Obligation

Prosecutors and police have a duty to seek out and voluntarily disclose every bit of evidence that helps a person accused of a crime defend themselves from prosecution. This kind of “exculpatory” evidence can come in the form of improper evidence handling, insufficient officer training, negative officer performance reviews, and even dishonesty or wrongdoing by a police officer.

Unfortunately, not all police officers or prosecutors understand the full extent of this obligation. In fact, some police officers in Washington have even actively attempted to keep information about their past misconduct secret from those they have accused of a crime.

The duty to disclose derives from (1) the Constitutional Due Process requirement for disclosure set out in Brady v. Maryland, (2) the Criminal Rules on discovery, and (3) the Rules of Professional Conduct.

Here we provide an overview designed to give a basic understanding of the duties and obligations of the government as they relate to disclosure obligations. We end with a brief discussion of the new model policy on Potential Impeachment Disclosure (PID), and new areas of future disclosure obligations.

CONSTITUTIONAL DUE PROCESS

There are over 30,000 cases in the United States that discuss the government’s obligation to provide exculpatory information to the defense. Every prosecutor and defense attorney should be familiar with the following cases.

  • Brady v. Maryland, 373 U.S. 83 (1963) (Prosecution violates a defendant’s due process rights by failing to turn over potentially exculpatory evidence).
  • United States v. Bagley, 473 U.S. 667 (1985) (Brady rule applies to impeachment evidence).
  • Silva v. Brown, 416 F.3d 980 (9th Cir. 2005) (Impeachment evidence is especially likely to be “material” under Brady; thus, the government must reveal promises of leniency or immunity for its witnesses).
  • Kyles v. Whitley, 514 U.S. 419 (1995) (The prosecutor bears the primary responsibility of identifying and turning over Brady evidence. The prosecutor’s obligation to turn over all exculpatory evidence extends to evidence that is in the possession of the police, including information that the police have not disclosed to the prosecutor. “This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence”).
  • United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (“The prudent prosecutor will resolve doubtful questions in favor of disclosure.”).
  • In re Personal Restraint Petition of Gentry, 137 Wn.2d 378, 397 n. 9 (1999) (Even after conviction, the prosecutor is required by the ethics of the office “to inform the appropriate authority of . . . information that casts doubt upon the correctness of the conviction.”).
  • State v. Copeland, 89 Wn. App. 492, 497-98, 949 P.2d 458 (1998) (A prosecutor must disclose prior criminal convictions of witnesses intended to be called for trial if that information is in the knowledge, control or possession of any member of the prosecution office, even where the deputy prosecutor on the case is not actually aware of the prior conviction of the witness).
  • State v. Garcia, 45 Wn. App. 132, 724 P.2d 412 (1986) (A prosecutor must disclose the substance of an eyewitness’ oral recantation and any prosecutor notes for an in camera review of the conversation even though the prosecutor did not believe the recantation). This rule also applies to non-lawyer support staff at a prosecutor’s office, such as victim/witness advocates and secretaries.
  • State v. Blackwell, 120 Wn.2d 822, 828 (1993) (If the defense can first show materiality, the burden shifts to the prosecution to attempt to obtain evidence held in an officer’s file). If the prosecution will not comply with a request for any information in a police officer’s file, a motion can be brought under Blackwell. However, filling public records request is often a quicker solution.

CRIMINAL DISCOVERY RULES

Discovery in Criminal cases is controlled by CrR 4.7 in Superior Court, and CrRLJ 4.7 in District Court. Although these rules differ somewhat, there is not meaningful difference as it relates to Brady obligations.

  • CrR 4.7(a)(1): Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney’s possession or control no later than the omnibus hearing.
  • CrR 4.7(a)(1)(vi): Any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.
  • CrR 4.7(3): Except as is otherwise provided as to protective orders, the prosecuting attorney shall disclose to defendant’s counsel any material or information within the prosecuting attorney’s knowledge which tends to negate defendant’s guilt as to the offense charged.
  • CrR 4.7(4): The prosecuting attorney’s obligation under this section is limited to material and information within the knowledge, possession, or control of members of the prosecuting attorney’s staff.
  • CrR 4.7(d): Upon defendant’s request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant. If the prosecuting attorney’s efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant.

RULES OF PROFESSIONAL CONDUCT

The Rules of Professional Conduct contain two rules exclusively for prosecutors that relate to the prosecutor’s obligations under Brady.

RPC 3.8(d) compels prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

A prosecutor’s obligations under RPC 3.8(d) are very similar to the disclosure obligations imposed by Constitutional Due Process. As such, failure to comply with the Brady obligations can result in negative licensing ramifications for a criminal prosecutor. The more knowing and willful a violation of this rule, the more negative the ramifications have been.

RPC 3.8(g) is a newer rule, coming into effect in December 2011. Under RPC 3.8(g), when a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted, defendant is innocent of the offense of which the defendant was convicted the prosecutor shall promptly disclose that evidence to an appropriate court or authority, and if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to the defendant unless a court authorizes delay, and make reasonable efforts to inquire into the matter, or make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter.

CASE STUDIES

Two recent Washington cases show how prosecutors have dealt with their Brady obligations, and how some police officers have greatly resisted prosecutorial efforts to disclose findings of their misconduct.

Lackey V. Lewis County:

The Lewis County Sheriff’s Office conducted an internal investigation on Deputy Lackey. The investigation made findings that Lackey had committed job related acts of dishonesty and other violations.

The Sheriff sent Lackey a letter sustaining the findings and indicating that Lackey was to be separated from employment for the other violations. The letter also stated that the investigative report was being forwarded to the Lewis County Prosecutor for an analysis under Brady and that a determination of lack of veracity would constitute an additional and independent basis for termination.

The Prosecutor responded by letter, writing “the disciplinary file you provided contains findings that Deputy Lackey committed job-related acts of dishonesty or untruthfulness … I am obligated to provide this information to defendants and defense attorneys in every case in which Deputy Lackey is likely to testify as a witness for the State.”

Lackey was separated from employment but appealed through Civil Service. A settlement was reached between Lackey and the Sheriff’s Office. The parties to the agreement were the Lewis County Sheriff’s Office, the Deputies Guild, and Lackey. The Prosecutor was not a party to the agreement.

The Sheriff’s Office “agreed to remove any reference to findings of dishonesty in the plaintiff’s termination letter; however, the findings were to remain in the plaintiff’s permanent investigation file.” The agreement also stated that the letter from the Prosecutor would be sealed by the Sheriff.

The settlement agreement further stated that the Brady memo from Mr. Golden to Mr. Walton would remain sealed by the Sheriff unless directed to be disclosed by a court order, public records request, or other applicable and controlling laws.

  • NOTE: Police union contracts and settlement agreements cannot prevent the disclosure of Brady material as a defendant’s constitutional right is paramount. An officer’s privacy interest cannot prevent disclosure of disciplinary records as such records are considered to be of legitimate concern to the public. See, e.g. Dawson v. Daly, 120 Wn.2d 782, 795-96, 845 P.2d 995 (1993); Cowles Pub’g Co. v. State Patrol, 44 Wn. App. 882, 724 P.2d 379 (1986), rev’d on other grounds, 109 Wn.2d 712, 748 P.2d 597 (1988).

Lackey then obtained provisional employment in Mason County, pending a background investigation. The Lewis County Prosecutor became aware of this and sent Lackey a letter stating he would be sending his analysis letter to the Mason County Prosecutor, but gave Lackey 10 days to object. The letter was subsequently sent.

Lackey was separated from his new job. He then filed claims against Lewis County and the Lewis County Prosecutor for sharing Brady information, Due Process violation and deprivation of property interest, defamation, invasion of privacy, and an injunction.

All federal claims were dismissed by the federal court.

“The court can find no law prohibiting a prosecutor from sharing potentially exculpatory or impeaching evidence with prosecutors of another jurisdiction. Such a law would be antithetical to a prosecutor’s duty of disclosure mandated by Brady v. Maryland. A reasonable prosecutor in Mr. Golden’s position could feel obliged to offer such information to a fellow prosecutor to remain in compliance with Brady and its progeny; and a reasonable prosecutor in Mr. Golden’s position would not have known that his conduct in releasing the Brady letter would violate any clearly established constitutional right.”

The court also wrote “The plaintiff has failed to identify any law that recognizes a police officer’s right to a name-clearing hearing after a Brady determination has been made, or any law prohibiting a prosecutor from transmitting a Brady determination to another jurisdiction.”

Doyle V. Lee, 166 Wn. App. 397 (2012):

Doyle left his employment with the Sierra County Sheriff’s Office after a settlement agreement dismissing a disciplinary action in exchange for his resignation. The agreement precluded Doyle from applying for or accepting employment with Sierra County for five years. Before this agreement was reached, Doyle had first been subject to termination, and later was placed on unpaid, one-year probation.

Later in 2007, Doyle became employed by the Quincy Police Department (who presumably did not know about the Sierra County issue when they hired him).

In 2009, Doyle called the police Moses Lake Police Department (MLPD) reporting documents related to his Sierra County employment had been stolen. MLPD recovered and reviewed the documents. Believing the documents showed that an investigation resulted in a finding that Doyle was dishonest, MLPD passed this information to then Grant County Prosecutor Angus Lee. Lee preliminarily determined the dishonesty finding and the supporting information were potential impeachment materials that his office was required to disclose to criminal defendants in compliance with Brady.

Mr. Lee notified Doyle of his determination and invited him to provide any information he wished to assist in making the final determination.

Doyle responded by suing for declaratory relief, and seeking an Ex Parte order to prohibit Mr. Lee from using, or disseminating any of the documents.

The trial court entered a preliminary injunction, but allowed the prosecution to comply with Brady mandate by submitting the materials to the criminal trial courts for in camera review on cases where Doyle was a potential witness. Each criminal trial judge that ruled on the in camera review ordered disclosure of the materials under Brady and Bagley.

Mr. Lee moved for summary judgment to dissolve the preliminary injunction and to dismiss the case. Finding that the Sierra County outcome was adverse to Doyle and that such information would be of public concern, the trial court ordered the immediate termination of the preliminary injunction and granted Mr. Lee’s motion for summary dismissal.

In affirming the trial court’s summary judgment, the appellate court wrote “a sustained finding of dishonesty existed resulting in adverse consequences to Officer Doyle. Under Brady, a prosecutor is required to disclose exculpatory evidence, including an officer’s dishonesty…. Mr. Lee complied with the Brady mandates by giving the documents to numerous affected defense attorneys.”

The court also awarded Mr. Lee tens of thousands in attorneys fees for having to defend against the action.

MODEL POTENTIAL IMPEACHMENT DISCLOSURE POLICY

In 2013, after the Lackey and Doyle cases, prosecutors in Washington State, through the Washington Association of Prosecuting Attorney’s, published a model policy for the handling of Brady/Doyle material for officers. Although some prosecutor’s offices still use the term “Brady Cop”, many have adopted the model policy and the term “Potential Impeachment Disclosure” (PID) when referring to disclosure obligations involving a police officer.

The model policy was designed to achieve compliance with the above requirements, and create state-wide uniformity in the way potential impeachment of recurring government witness issues are handled. According to the model policy, “All County deputy prosecuting attorneys are required to know and follow this protocol and all relevant law concerning potential impeachment of recurring government witness disclosure obligations.”

Under the model policy, the PID standard is likely to be satisfied by reliable information that an officer was dishonest in connection with the performance of official duties. It is less likely to be satisfied by dishonesty in connection with an officer’s private affairs. Under unusual circumstances, information about private acts might be subject to the PID policy if the acts could be admissible under Evidence Rule 608(b) as evidence of untruthfulness.

Clark County PID:

Below you can download the “Brady Policy” and list maintained by the Clark County Prosecutor’s Office and the Vancouver City Attorney’s Office.

PID GUIDELINES

  • The PID Standard depends on what a reasonable person could believe, not on what the prosecutor’s office or a law enforcement agency does believe.
  • Consequently, disclosure may be required in cases where the prosecutor’s office and/or the law enforcement agency believe that no misconduct occurred, if a reasonable person could draw a different conclusion.
  • If the prosecutor’s office concludes that an officer is subject to PID, that conclusion does not necessarily reflect a conclusion that the officer committed misconduct, or that the officer is not credible as a witness.
  • PID is about meeting the government’s obligation to disclose. It is NOT about making a determination on admissibility, or on an officer’s credibility, or employability.
  • A determination that disclosure is required is not a stipulation by the prosecution as to admissibility. In fact, it is not uncommon for the prosecution to make a disclosure of material to the defense, but then later argue for suppression or exclusion of that material at trial.
  • When the determination is questionable, the prosecution should submit the material to the court in camera for a determination on the disclosure obligation . If the defense believes there is material that is not being disclosed pursuant to Brady and its progeny, the defense should move the court for an in camera review of the material it believes exists and is not being disclosed.
  • If material is submitted for in camera review, it may or may not be disclosed by the court. As a result, the defense either obtains the requested material, or builds a record for any future appeal regarding what was not disclosed.

THE FUTURE OF BRADY

A review of the case law regarding Brady material reveals that the law is expanding and will continue to expand the scope of discovery beyond simple acts of dishonesty by an officer. Brady disclosure obligations at their heart deal with ANY information that may tend to negate or call into question the testimony of a witness, thereby making the information material for impeachment purposes.

Mental and Physical Health: depression and other mental health disorders are increasingly common across America. Police officers and jail guards are no exception. In fact, it has been reported that jail guards suffer from PTSD at higher rates than combat veterans. The drugs some take to treat these issues may be very relevant to a particular officer’s ability to observe and recall a particular incident. Likewise, if an officer has been diagnosed and in need of medication, the absence of appropriate medication may also be relevant.

Evidence of prejudice towards a protected class: Prejudice and bias against a group of people can be very relevant to impeachment of an officer’s testimony. This kind of information can often be found in comments that officers make publicly on social media.

Performance Reports: Most government witnesses (especially at the State Crime Laboratory) are subject to regular performance testing and evaluations. Adverse or substandard performance reviews or evaluations are potentially very relevant to impeaching the testimony of a government witness.

Substance Abuse: If an officer was on drugs or alcohol, or dealing with a bad hangover, at the time of arrest, this information is very relevant to the officer’s ability to observe and recall an incident many months later at trial. As such, use/abuse of drugs or can be relevant information. source

7 Types of Exculpatory Evidence that Can Trigger a Brady Violation

The Brady rule applies to all types of evidence a defendant may be able to use to protect himself or herself from a conviction. Some examples include:

1. Evidence of Police Misconduct

If the police racially profiled you, violated your constitutional rights, or engaged in any other form of misconduct before, during, or after your arrest, this could have a substantial impact on your criminal case. As a result, you are entitled to know if prosecutors have any evidence of police misconduct in their possession.

2. Evidence that Someone Else Committed the Crime

Evidence that someone else committed the crime in question has strong exculpatory value, and it is almost certainly material to the prosecution’s case against you. This could include a confession, witness statements, surveillance footage, or any of a variety of other forms of evidence.

3. Records that Suggest You Didn’t Commit the Crime

If the police report or any other records suggest that you didn’t commit the crime (or may not have committed the crime), this is also something you are entitled to know. Prosecutors should disclose these records; and, if they don’t, this could entitle you to legal remedies as discussed in detail below.

4. Physical Evidence that Casts Doubt on Your Guilt

Along with documentary evidence, any physical evidence that casts doubt on your guilt is also highly likely to be material and exculpatory. This could include anything from the weapon used to commit the crime in question to a piece of property that you allegedly stole.

5. Information about a Deal with an Informant or Witness

If any of the government’s witnesses received a deal in connection with their decision to testify, this is key information that could have a major impact on the judge’s or jury’s decision. This means that defendants are generally entitled to disclosure of this information as well.

6. Information that Discredits a State’s Witness

Along with information about a deal, any other information that discredits a state’s witness could also trigger the prosecution’s obligation to voluntarily disclose. For example, if a witness changes his or her story on the witness stand after giving prosecutors a pre-trial statement, failure to disclose the prior statement may constitute a Brady violation.

7. Information that Casts Doubt on an Alleged Victim’s Testimony

Information that casts doubt on an alleged victim’s testimony can also trigger the Brady rule. This includes (but is not limited to) prior inconsistent statements, evidence that the victim is lying, and evidence that the victim has made similar false allegations in the past.

But, it is important to keep in mind that judges examine possible Brady violations on a case-by-case basis. To establish a Brady violation, you must be able to show that the evidence is material and exculpatory based on the circumstances of your case. Other types of evidence may constitute “Brady material” as well, and the types of evidence listed above may or may not qualify depending on the facts at hand.

Potential Consequences of the Prosecution’s Failure to Disclose Exculpatory Evidence

Let’s say prosecutors withhold exculpatory evidence before or during your trial. What does this mean for the outcome of your case? The potential consequences of the prosecution’s failure to disclose exculpatory evidence include:

  • Production of the Exculpatory Evidence – If it is still possible to “correct” a Brady violation, then the judge may simply order the prosecution to disclose the evidence to the defense.
  • Mistrial – If a Brady violation cannot be corrected, the judge may order a mistrial.
  • Dismissal – If a Brady violation is particularly egregious, the judge may order the case dismissed rather than declaring a mistrial.
  • Reversal – If a Brady violation only comes to light after a defendant’s conviction, then the defendant may be entitled to a reversal—either with or without the possibility of a retrial.
  • No Consequences – If the judge determines that the withheld evidence is not material and exculpatory, then the prosecution’s failure to disclose it may not have any consequences. source

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

DISTRICT ATTORNEY & PAUL TOEPEL PLAY THESE VIDEOS

Rule 1.1 – Competence (DA REPRESENTS THE STATE)

Rule 1.2 – Assisting in a Crime

Rule 3.1 – Meritorious Claims & Contentions

Rule 3.4 – Fairness to Opposing Party and Council

PAUL TOEPEL PLAY THE NEXT VIDEO REMEMBER SUGGESTING ME TO BE MADE A VEXATIOUS LITAGANT YOU PUNK FUCK

Model Rule 3.8 pt.2 – Special Duties of Prosecutors

Learn More: ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Model Rule 4.1 – Truthfulness in Statements to Others

PAUL TOEPEL PLAY THE NEXT VIDEO

Model Rule 4.4 – Respect for the Rights of Others

PAUL & Mathew TOEPEL LISTEN TO THE NEXT VIDEO

Model Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer

Model Rule 5.2 Responsibilities of a Subordinate Lawyer

Model Rule 8.1 Bar Admission & Disciplinary Matters

Model Rule 8.2 – Judicial & Legal Officials

Model Rule 8.3 – Reporting Professional Misconduct

Model Rule 8.4 pt.1 – Lawyer Misconduct

PAUL TOEPEL LISTEN TO THE NEXT VIDEO

ABA Formal Op. 493 pt.1 – Rule 8.4(g): Purpose, Scope & Application

Model Rule 8.4 pt.2 – Discrimination & Harassment

ECONOMIC STATUS ATTACKS!

Attorney Ethics Rules – FOX 17 Know the Law

 

 

 

 

 

To Learn More…. Read MORE Below and click the links Below 

Abuse & Neglect – The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS  INFO BULLETIN:
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It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law  its a PDF file

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC –  Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Mi$Conduct – Pro$ecutorial Mi$Conduct

Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Information On Prosecutorial Discretion

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Mi$Conduct – Judicial Mi$Conduct

Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Misconduct by Government Know Your Rights Click Here (must read!)

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

PARENT CASE LAW 

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) —
14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights –
5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship –
14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)?  FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Retrieving Evidence / Internal Investigation Case 

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below: 

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

 

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation 

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92  & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

 Epic Criminal / Civil Right$ SCOTUS Help – Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

 

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

 

 

 

 

 

 

 

 

 

 

 

 

]]> Police BodyCam Footage Release – California https://goodshepherdmedia.net/police-bodycam-footage-release-california/ Sun, 16 Jul 2023 07:50:34 +0000 https://goodshepherdmedia.net/?p=13798 Police BodyCam Footage Release – California

Freedom of Information

The federal Freedom of Information Act (FOIA) and similar state laws give the public the right to obtain records from certain government entities. Journalists use these laws, also known as sunshine acts, open records laws, or right-to-know laws, to tell important stories about what’s happening in government that might otherwise be kept secret. While exemptions in the laws allow some information to be withheld, many government agencies at the local, state, and federal level routinely delay or deny records requests without proper justification. Explore our work in this area below. For our guide on the Federal Freedom of Information Act (FOIA), visit the FOIA Wiki. The FOIA Wiki has information on submitting requests, exemptions, administrative appeals, and most other topics related to the federal FOIA.

Cal. Gov. Code § 6252

(e) “Public records” includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. “Public records” in the custody of, or maintained by, the Governor’s office means any writing prepared on or after January 6, 1975.

Access to police body-worn camera video

This map shows current state legislation status and police department policies regarding public access to police worn body camera footage.

This map shows the current status of state legislation and police department policies regarding public access to police body-worn cameras (“bodycams” or “BWCs”) around the United States under public records laws. See more notes below.

To search the map, click on the button at the top right to open in full-screen. You can then search by city, state, or police department. 

State legislation and case law

The color of the state indicates the status of legislation regarding access to BWC videos. By clicking the state you can find more information and see a link to the bill(s) and/or case(s).

 Blue = Legislation regarding public accessibility to body-worn camera footage has been proposed, but not passed.
Yellow = A law has been passed regarding public access to body-worn camera footage.
Brown = No laws regarding public access to body-worn camera footage have been passed. However, some states have introduced or passed bills regarding the implementation of BWCs that do not directly address the question of whom should have public access.
Green = A court case has decided the rules regarding public access to body-worn camera footage. Click the state to read more about the decision.

Department policies

Police department policies can be found by clicking on the black camera icons. The wording of each department’s policy regarding public access is shown in the description section. Please note — some police departments that have deployed body cameras may not have a written policy.

Because only a few states have passed state-wide rules regarding public access to BWC footage, most police departments are left to determine their own rules. As more states pass regulations, individual policies may change to comply with the state’s uniform policies. source

New California law requiring release of police body camera footage goes into effect Monday

A new California law requiring the release of law enforcement body camera footage goes into effect on Monday, July 1.

Assembly Bill 748 will require the release of recordings from body-worn cameras within 45 days of an incident, including if officers fired shots or if a use-of-force causes death or great bodily harm.

The bill was introduced by Assemblymember Phil Ting (D-San Francisco) and signed by Governor Jerry Brown in 2018.

According to Ting, prior to the passage of AB 748, California had no consistent policy regarding the release of body camera recordings. Many lawmakers who voted for the bill believe that footage from body-worn cameras can help shed light, increase transparency and provide clarity when there is confusion in the community after tragic events. source

California Public Records Act GOVERNMENT CODE SECTION 6250-6270 

download here or source

 

California Public Records Guide

California Public Records Act (PRA)

Cal. Gov’t Code, Chapter 3.5 Inspection of Public Records

Enacted in 1968, Updated in 2013

 

California Public Records Act (PRA) Overview

  • 10 day response time among the shortest
  • No formal appeals process, requiring a lawsuit
  • “Purely personal” exemption can limit access to agency records

Seeing as that the federal Freedom of Information Act was largely the result of efforts by Congressman John Moss of California, it should come as no surprise that the state was one of the first to enact a state-level public records law. It should come as a bit of surprise, however, that the law is a frustrating combination of good ideas with no enforcement.

Agencies are required to “comply” with a 10 day time frame, which puts it among the speediest states – assuming you get a clerk who knows the law and is interested in following it. A lack of any formal appeals process means an agency faces no consequences for a violation, unless you’re willing to sue. Fortunately, California does offer the opportunity to recoup attorney’s fees if the requester succeeds on “any significant issue.”

While that’s fairly straightforward in cases where a agency hasn’t responded in the allotted time frame, the law’s unclear language makes that more difficult when fighting an exemption. Rather than extend towards all records created by an agency, the law stipulates that the records must be “relating to the conduct of the public’s business,” and exempts “purely personal” information that happens to be on a public account. Though an agency must cite their reasoning, a broad “outweighing the public interest” catchall makes it tough to build a convincing case.

Despite these challenges (and due to the lack of any alternative), public records lawsuits are common – in fact, in 2013, citing the “tens of millions” the state was spending on the law annually, in 2013 the legislature added a measure to the budget that would gut the law entirely, turning it into “best practices.” Thanks to a massive outcry by journalists, the measure was defeated. source

The Law

  • Response within 10 days.
  • Applies to the executive branch and state agencies
  • No residency requirement.
  • No administrative appeal option.

Supplemental

Definition of public records – Cal. Gov’t Code § 6252(e)

Article I, California Constitution

Constitution of the State of California

“(b) (1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

 

 

TYPES OF REQUESTS — RIGHT TO INSPECT OR COPY PUBLIC RECORDS – 2023 Revisions to the Public Records Act

download here or source

 

Templates for Sample Requests

Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
Download Word document | Download PDF

Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
Download Word document | Download PDF

Beginning in 2016 with the California Court of Appeal’s ruling in City of Eureka v. Superior Court, the court held that police “dashcam” footage was not protected as a confidential personnel record simply because it might later be used by a police department in connection with a complaint or investigation.

Learn More…..

California Cops Can No Longer Pass the Cost of Digital Redaction onto Public Records Requesters

California Government Code Section 7922.535 states that each agency, upon request for a copy of record, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefore. In unusual circumstances, the time limit prescribed in this section may be extended, by written notice by the head of the agency, or his or her designee, to the person making the request, setting for the reasons for the extension and the date on which a determination is expected to be dispatched.

No notice shall specify a date that would result in an extension for more than 14 days.  Per Government Code section 7922.000, certain records of a personal nature which may be part of an application shall not be disclosed where the City has determined that the public interest in disclosure is outweighed by the public interest in nondisclosure.

https://epic.org/state-law-enforcement-body-camera-policies/

STATE LAWS: CALIFORNIA, FLORIDA AND NORTH DAKOTA

California considers body-camera videos public records and requires law enforcement to release video to the public no later than 45 days after an incident is recorded. The law has minor exceptions for disclosure including if releasing the video would violate the privacy rights of individuals depicted. Florida and North Dakota have recently passed laws regarding the availability of police cam footage under public records laws. Florida’s law exempts from public records law any body camera video obtained inside a private residence, a health care, mental health care or social services facility or is taken in a place that a reasonable person would expect to be private. North Dakota’s law exempts any images taken in a private place by law enforcement from open records law.

In 2018, the California Legislature passed SB1421, The Right To Know Act, which gives the public the right to see certain records relating to police misconduct and serious uses of force. You can now request these records under the Public Records Act (“PRA”) — a law that gives the public the right to see the non-confidential documents of our state and local government agencies.

Does it cost money to make a request?

An agency is only allowed to charge for the “direct costs” of duplicating the records, or the cost to create certain documents if you are asking it to create a document — like a list — that it does not already have.8 You should always ask the agency to waive costs in your initial request, but they are not required to do so. You also have the option to inspect the records by looking at them at the agency during its regular business hours, which you can do for free. You can always inspect documents for free, and then request copying only of those that you want.

Can the agency ask me to pay for the time it takes them to locate files or redact audio or video?

No. The Public Records Act allows agencies only the charge for the “direct costs of duplication, or a statutory fee if appliable.”9 That means that agencies can charge for the costs of paper and ink, or for the disks or drives on which they provide data, but cannot charge for the time their staff spend finding records, making copies or even redacting documents. Despite this, for several years, police agencies still tried to charge requestors an hourly rate, often amounting to thousands of dollars, for the time their staff spent editing body camera video to redact confidential information, arguing that editing video was more like programming a computer to extract data (something they are allowed to charge for) than it was like redacting a document.

However, on May 28, 2020, the California Supreme Court in National Lawyers Guild v. City of Hayward (a case brought by the ACLU of Northern California) rejected this argument10 and held that the Public Records Act does not allow police departments to charge requestors of police body camera footage for the staff time required to locate that footage and edit it to redact audio & video to remove private information.

If an agency has tried to charge you for the time required to make redactions in audio or video, please see our model follow-up lettera> notifying them of the Hayward decision and informing them such charges are unlawful.

https://www.aclusocal.org/en/know-your-rights/access-ca-police-records

AB 1246 LEGISLATIVE COUNSEL’S DIGEST

AB 1246, as amended, Quirk. Peace officers. Body worn cameras: peace officers: limited disclosure.

(1) The California Public Records Act requires that public records be open to inspection at all times during the office hours of a state or local agency and that every person has a right to inspect any public record, except as specifically provided. The act further requires that a reasonably segregable portion of a public record be available for inspection by any person requesting the public record after deletion of the portions that are exempted by law.

This bill would, notwithstanding any other law, prohibit the disclosure of a recording made by a body worn camera, as defined, except for requiring disclosure to the person whose image is recorded by the body worn camera.

(2) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

(3) The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1246

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.  Section 6254.32 is added to the Government Code, to read:

6254.32.

 (a) Notwithstanding any other law, including, but not limited to, Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, a recording made by a body worn camera is confidential and shall not be disclosed, except that the recording shall be disclosed to the person whose image is recorded by the body worn camera.

(b) The following definitions shall apply to this section:

(1) “Body worn camera” means a device attached to the uniform or body of a peace officer that records video, audio, or both, in a digital or analog format.

(2) “Peace officer” means any person designated as a peace officer pursuant to Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code.SEC. 2.

 The Legislature finds and declares that Section 1 of this act, which adds Section 6254.32 to the Government Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:

The need to protect individual privacy from the public disclosure of images captured by a body worn camera outweighs the interest in the public disclosure of that information.

SEC. 3.

 The Legislature finds and declares that Section 1 of this act, which adds Section 6254.32 to the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:

Protecting the privacy of a person whose image is captured by body worn cameras on local peace officers enhances public safety and the protection of individual rights, thereby furthering the purposes of Section 3 of Article I of the California Constitution.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1246

California Assembly Bill 2788 LEGISLATIVE COUNSEL’S DIGEST

AB 2788, as amended, Mathis. Public records.

The Existing law, the California Public Records Act Act, requires state and local agencies to make their records available for public inspection, except as provided. Existing law declares that public records are open to inspection during the office hours of the state or local agency and every person has a right to inspect any public record, except as specified. Existing law requires each agency, upon a request for a copy of records, within 10 days from receipt of the request, to determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and to promptly notify the person making the request of the determination and the reasons therefor.

This bill would make nonsubstantive changes to these provisions. extend that 10-day deadline to 10 business days.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

Section 7922.535 of the Government Code is amended to read:

7922.535.

(a) Each agency, upon a request for a copy of records, shall, within 10 business days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. If the agency determines that the request seeks disclosable public records, the agency shall also state the estimated date and time when the records will be made available.

(b) In unusual circumstances, the time limit prescribed in this article and Article 1 (commencing with Section 7922.500) may be extended by written notice from the head of the agency or a designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days.

(c) As used in this section, “unusual circumstances” means the following, but only to the extent reasonably necessary to the proper processing of the particular request:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

SEC. 2.

 The Legislature finds and declares that Section 1 of this act, which amends Section 7922.535 of the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:

Due to the impacts of the COVID-19 pandemic and the increased need to work remotely, state and local agencies have had an unavoidable burden placed upon them. Therefore, to accommodate for this, it is necessary to now allow 10 business day for responses to California Public Records Act requests.

https://legiscan.com/CA/text/AB2788/id/2551639

 AB 748: More Public Access to Body Camera Footage Under PRA

Amendment to California Law Gives Public Agencies More Responsibility to Provide Footage

The California public will have a greater right to access police body camera footage, and any other audio or video recording acquired by any police agency or state prosecution office, under the Public Records Act with the passage of Assembly Bill 748. The law mandates that audio and visual recordings of “critical incidents” resulting in either the discharge of a firearm by law enforcement or in death or great bodily injury to a person from the use of force by law enforcement are to be made publicly available under the PRA within 45 days of the  incident, with limited exceptions. Approved by Gov. Jerry Brown late last month, AB 748 goes into effect July 1.

Under existing law, the public is entitled to certain information contained within complaints and investigations of crimes, although public agencies may otherwise withhold material that would endanger either the success of an ongoing criminal investigation or the safety of people involved in that investigation. Under AB 748, recordings acquired by law enforcement and prosecutors  must generally be disclosed in response to a PRA request within 45 days of the “critical incident” or the date the public agency reasonably should have known it occurred.

A public agency may delay disclosure of the recording for between 45 days and 1 year during an active criminal or administrative investigation, but only if disclosure would “substantially interfere” with that ongoing investigation. Examples of such interference include endangering a witness’ or confidential source’s safety. After 1 year following the critical incident, a public agency may withhold the audio or visual recording only if the agency demonstrates, by clear and convincing evidence, that disclosure would still substantially interfere with an ongoing investigation. Under AB 748, the public agency is required to reassess the withholding of that recording and notify the PRA requester every 30 days. Any time a public agency withholds a recording on that criteria, the requester must be notified in writing.

Once the specific basis for withholding the recording of a critical incident is resolved, it must be disclosed. However, if a public agency demonstrates that the reasonable expectation of privacy for individuals depicted in the recording outweighs the public’s interest in disclosure, the public agency must use “redaction technology, including blurring or distorting images or audio” to protect those privacy interests prior to that recording’s disclosure. If the public agency demonstrates that the reasonable expectation of privacy cannot be adequately protected by redaction, the public agency may withhold the recording. However, a redacted or unredacted copy of that recording must be made promptly available to any person (or designated representative) whose privacy interest is protected by public nondisclosure. AB 748 does not apply to peace officers employed by the California Department of Corrections and Rehabilitation.

https://www.bbklaw.com/news-events/insights/2018/legal-alerts/10/ab-748-more-public-access-to-body-camera-footage-u

 Assembly Bill No. 748

[ Approved by Governor  September 30, 2018. Filed with Secretary of State  September 30, 2018. ]

LEGISLATIVE COUNSEL’S DIGEST

AB 748, Ting. Peace officers: video and audio recordings: disclosure.

Existing law, the California Public Records Act, requires that public records, as defined, be available to the public for inspection and made promptly available to any person. Existing law makes records of investigations conducted by any state or local police agency exempt from these requirements. Existing law requires specified information regarding the investigation of crimes to be disclosed to the public unless disclosure would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation.

This bill would, notwithstanding the above provisions, commencing July 1, 2019, allow a video or audio recording that relates to a critical incident, as defined, to be withheld for 45 calendar days if disclosure would substantially interfere with an active investigation, subject to extensions, as specified. The bill would allow the recording to be withheld if the public interest in withholding video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording, in which case the bill would allow the recording to be redacted to protect that interest. If the agency demonstrates that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction, the bill would require that the recording be promptly disclosed to a subject of the recording, his or her parent, guardian, or representative, as applicable, or his or her heir, beneficiary, immediate family member, or authorized legal representative, if deceased.

By requiring local agencies to make these recordings available, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

Section 6254 of the Government Code, as amended by Section 1 of Chapter 560 of the Statutes of 2017, is amended to read:

6254.

Except as provided in Sections 6254.7 and 6254.13, this chapter does not require the disclosure of any of the following records:

(a) Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.

(b) Records pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled.

(c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.

(d) Records contained in or related to any of the following:

(1) Applications filed with any state agency responsible for the regulation or supervision of the issuance of securities or of financial institutions, including, but not limited to, banks, savings and loan associations, industrial loan companies, credit unions, and insurance companies.

(2) Examination, operating, or condition reports prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1).

(3) Preliminary drafts, notes, or interagency or intra-agency communications prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1).

(4) Information received in confidence by any state agency referred to in paragraph (1).

(e) Geological and geophysical data, plant production data, and similar information relating to utility systems development, or market or crop reports, that are obtained in confidence from any person.

(f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, this subdivision does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.

Customer lists provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision.

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.

(2) (A) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.

(B) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete. For purposes of this subdivision, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.

(3) Subject to the restrictions of Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code shall remain confidential. Address information obtained pursuant to this paragraph shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. This paragraph shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph.

(4) Notwithstanding any other provision of this subdivision, commencing July 1, 2019, a video or audio recording that relates to a critical incident, as defined in subparagraph (C), may be withheld only as follows:

(A) (i) During an active criminal or administrative investigation, disclosure of a recording related to a critical incident may be delayed for no longer than 45 calendar days after the date the agency knew or reasonably should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source. If an agency delays disclosure pursuant to this paragraph, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation and the estimated date for disclosure.

(ii) After 45 days from the date the agency knew or reasonably should have known about the incident, and up to one year from that date, the agency may continue to delay disclosure of a recording if the agency demonstrates that disclosure would substantially interfere with the investigation. After one year from the date the agency knew or reasonably should have known about the incident, the agency may continue to delay disclosure of a recording only if the agency demonstrates by clear and convincing evidence that disclosure would substantially interfere with the investigation. If an agency delays disclosure pursuant to this clause, the agency shall promptly provide in writing to the requester the specific basis for the agency’s determination that the interest in preventing interference with an active investigation outweighs the public interest in disclosure and provide the estimated date for the disclosure. The agency shall reassess withholding and notify the requester every 30 days. A recording withheld by the agency shall be disclosed promptly when the specific basis for withholding is resolved.

(B) (i) If the agency demonstrates, on the facts of the particular case, that the public interest in withholding a video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording, the agency shall provide in writing to the requester the specific basis for the expectation of privacy and the public interest served by withholding the recording and may use redaction technology, including blurring or distorting images or audio, to obscure those specific portions of the recording that protect that interest. However, the redaction shall not interfere with the viewer’s ability to fully, completely, and accurately comprehend the events captured in the recording and the recording shall not otherwise be edited or altered.

(ii) Except as provided in clause (iii), if the agency demonstrates that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction as described in clause (i) and that interest outweighs the public interest in disclosure, the agency may withhold the recording from the public, except that the recording, either redacted as provided in clause (i) or unredacted, shall be disclosed promptly, upon request, to any of the following:

(I) The subject of the recording whose privacy is to be protected, or his or her authorized representative.

(II) If the subject is a minor, the parent or legal guardian of the subject whose privacy is to be protected.

(III) If the subject whose privacy is to be protected is deceased, an heir, beneficiary, designated immediate family member, or authorized legal representative of the deceased subject whose privacy is to be protected.

(iii) If disclosure pursuant to clause (ii) would substantially interfere with an active criminal or administrative investigation, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation, and provide the video or audio recording. Thereafter, the recording may be withheld by the agency for 45 calendar days, subject to extensions as set forth in clause (ii) of subparagraph (A).

(C) For purposes of this paragraph, a video or audio recording relates to a critical incident if it depicts any of the following incidents:

(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.

(ii) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury.

(D) An agency may provide greater public access to video or audio recordings than the minimum standards set forth in this paragraph.

(E) This paragraph does not alter, limit, or negate any other rights, remedies, or obligations with respect to public records regarding an incident other than a critical incident as described in subparagraph (C).

(F) For purposes of this paragraph, a peace officer does not include any peace officer employed by the Department of Corrections and Rehabilitation.

(g) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination, except as provided for in Chapter 3 (commencing with Section 99150) of Part 65 of Division 14 of Title 3 of the Education Code.

(h) The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained. However, the law of eminent domain shall not be affected by this provision.

(i) Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information.

(j) Library circulation records kept for the purpose of identifying the borrower of items available in libraries, and library and museum materials made or acquired and presented solely for reference or exhibition purposes. The exemption in this subdivision shall not apply to records of fines imposed on the borrowers.

(k) Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.

(l) Correspondence of and to the Governor or employees of the Governor’s office or in the custody of or maintained by the Governor’s Legal Affairs Secretary. However, public records shall not be transferred to the custody of the Governor’s Legal Affairs Secretary to evade the disclosure provisions of this chapter.

(m) In the custody of or maintained by the Legislative Counsel, except those records in the public database maintained by the Legislative Counsel that are described in Section 10248.

(n) Statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish his or her personal qualification for the license, certificate, or permit applied for.

(o) Financial data contained in applications for financing under Division 27 (commencing with Section 44500) of the Health and Safety Code, if an authorized officer of the California Pollution Control Financing Authority determines that disclosure of the financial data would be competitively injurious to the applicant and the data is required in order to obtain guarantees from the United States Small Business Administration. The California Pollution Control Financing Authority shall adopt rules for review of individual requests for confidentiality under this section and for making available to the public those portions of an application that are subject to disclosure under this chapter.

(p) (1)  Records of state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) of Division 4, that reveal a state agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under these chapters. This paragraph shall not be construed to limit the disclosure duties of a state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this paragraph.

(2) Records of local agencies related to activities governed by Chapter 10 (commencing with Section 3500) of Division 4, that reveal a local agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under that chapter. This paragraph shall not be construed to limit the disclosure duties of a local agency with respect to any other records relating to the activities governed by the employee relations act referred to in this paragraph.

(q) (1) Records of state agencies related to activities governed by Article 2.6 (commencing with Section 14081), Article 2.8 (commencing with Section 14087.5), and Article 2.91 (commencing with Section 14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, that reveal the special negotiator’s deliberative processes, discussions, communications, or any other portion of the negotiations with providers of health care services, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy, or that provide instruction, advice, or training to employees.

(2) Except for the portion of a contract containing the rates of payment, contracts for inpatient services entered into pursuant to these articles, on or after April 1, 1984, shall be open to inspection one year after they are fully executed. If a contract for inpatient services that is entered into prior to April 1, 1984, is amended on or after April 1, 1984, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after it is fully executed. If the California Medical Assistance Commission enters into contracts with health care providers for other than inpatient hospital services, those contracts shall be open to inspection one year after they are fully executed.

(3) Three years after a contract or amendment is open to inspection under this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(4) Notwithstanding any other law, the entire contract or amendment shall be open to inspection by the Joint Legislative Audit Committee and the Legislative Analyst’s Office. The committee and that office shall maintain the confidentiality of the contracts and amendments until the time a contract or amendment is fully open to inspection by the public.

(r) Records of Native American graves, cemeteries, and sacred places and records of Native American places, features, and objects described in Sections 5097.9 and 5097.993 of the Public Resources Code maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.

(s) A final accreditation report of the Joint Commission on Accreditation of Hospitals that has been transmitted to the State Department of Health Care Services pursuant to subdivision (b) of Section 1282 of the Health and Safety Code.

(t) Records of a local hospital district, formed pursuant to Division 23 (commencing with Section 32000) of the Health and Safety Code, or the records of a municipal hospital, formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4 of this code, that relate to any contract with an insurer or nonprofit hospital service plan for inpatient or outpatient services for alternative rates pursuant to Section 10133 of the Insurance Code. However, the record shall be open to inspection within one year after the contract is fully executed.

(u) (1) Information contained in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department that indicates when or where the applicant is vulnerable to attack or that concerns the applicant’s medical or psychological history or that of members of his or her family.

(2) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates that are set forth in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department.

(3) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates that are set forth in licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department.

(v) (1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by former Part 6.3 (commencing with Section 12695), former Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), or Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division 9 of the Welfare and Institutions Code, and that reveal any of the following:

(A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or the department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or the department provides, receives, or arranges services or reimbursement.

(B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff or the department or its staff, or records that provide instructions, advice, or training to their employees.

(2) (A) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to former Part 6.3 (commencing with Section 12695), former Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), or Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division 9 of the Welfare and Institutions Code, on or after July 1, 1991, shall be open to inspection one year after their effective dates.

(B) If a contract that is entered into prior to July 1, 1991, is amended on or after July 1, 1991, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after the effective date of the amendment.

(3) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(4) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contracts or amendments to the contracts are open to inspection pursuant to paragraph (3).

(w) (1) Records of the Managed Risk Medical Insurance Board related to activities governed by Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, and that reveal the deliberative processes, discussions, communications, or any other portion of the negotiations with health plans, or the impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or records that provide instructions, advice, or training to employees.

(2) Except for the portion of a contract that contains the rates of payment, contracts for health coverage entered into pursuant to Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, on or after January 1, 1993, shall be open to inspection one year after they have been fully executed.

(3) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contracts or amendments to the contracts are open to inspection pursuant to paragraph (2).

(x) Financial data contained in applications for registration, or registration renewal, as a service contractor filed with the Director of Consumer Affairs pursuant to Chapter 20 (commencing with Section 9800) of Division 3 of the Business and Professions Code, for the purpose of establishing the service contractor’s net worth, or financial data regarding the funded accounts held in escrow for service contracts held in force in this state by a service contractor.

(y) (1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code, if the records reveal any of the following:

(A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or department provides, receives, or arranges services or reimbursement.

(B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, or records that provide instructions, advice, or training to employees.

(2) (A) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code, on or after January 1, 1998, or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code shall be open to inspection one year after their effective dates.

(B) If a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code, is amended, the amendment shall be open to inspection one year after the effective date of the amendment.

(3) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(4) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to paragraph (2) or (3).

(5) The exemption from disclosure provided pursuant to this subdivision for the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, shall also apply to the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of applicants pursuant to Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of the Welfare and Institutions Code.

(z) Records obtained pursuant to paragraph (2) of subdivision (f) of Section 2891.1 of the Public Utilities Code.

(aa) A document prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency’s operations and that is for distribution or consideration in a closed session.

(ab) Critical infrastructure information, as defined in Section 131(3) of Title 6 of the United States Code, that is voluntarily submitted to the Office of Emergency Services for use by that office, including the identity of the person who or entity that voluntarily submitted the information. As used in this subdivision, “voluntarily submitted” means submitted in the absence of the office exercising any legal authority to compel access to or submission of critical infrastructure information. This subdivision shall not affect the status of information in the possession of any other state or local governmental agency.

(ac) All information provided to the Secretary of State by a person for the purpose of registration in the Advance Health Care Directive Registry, except that those records shall be released at the request of a health care provider, a public guardian, or the registrant’s legal representative.

(ad) The following records of the State Compensation Insurance Fund:

(1) Records related to claims pursuant to Chapter 1 (commencing with Section 3200) of Division 4 of the Labor Code, to the extent that confidential medical information or other individually identifiable information would be disclosed.

(2) Records related to the discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the fund, and any related deliberations.

(3) Records related to the impressions, opinions, recommendations, meeting minutes of meetings or sessions that are lawfully closed to the public, research, work product, theories, or strategy of the fund or its staff, on the development of rates, contracting strategy, underwriting, or competitive strategy pursuant to the powers granted to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code.

(4) Records obtained to provide workers’ compensation insurance under Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code, including, but not limited to, any medical claims information, policyholder information provided that nothing in this paragraph shall be interpreted to prevent an insurance agent or broker from obtaining proprietary information or other information authorized by law to be obtained by the agent or broker, and information on rates, pricing, and claims handling received from brokers.

(5) (A) Records that are trade secrets pursuant to Section 6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of Division 8 of the Evidence Code, including, without limitation, instructions, advice, or training provided by the State Compensation Insurance Fund to its board members, officers, and employees regarding the fund’s special investigation unit, internal audit unit, and informational security, marketing, rating, pricing, underwriting, claims handling, audits, and collections.

(B) Notwithstanding subparagraph (A), the portions of records containing trade secrets shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

(6) (A) Internal audits containing proprietary information and the following records that are related to an internal audit:

(i) Personal papers and correspondence of any person providing assistance to the fund when that person has requested in writing that his or her papers and correspondence be kept private and confidential. Those papers and correspondence shall become public records if the written request is withdrawn, or upon order of the fund.

(ii) Papers, correspondence, memoranda, or any substantive information pertaining to any audit not completed or an internal audit that contains proprietary information.

(B) Notwithstanding subparagraph (A), the portions of records containing proprietary information, or any information specified in subparagraph (A) shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

(7) (A) Except as provided in subparagraph (C), contracts entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code shall be open to inspection one year after the contract has been fully executed.

(B) If a contract entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code is amended, the amendment shall be open to inspection one year after the amendment has been fully executed.

(C) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(D) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to this paragraph.

(E) This paragraph is not intended to apply to documents related to contracts with public entities that are not otherwise expressly confidential as to that public entity.

(F) For purposes of this paragraph, “fully executed” means the point in time when all of the necessary parties to the contract have signed the contract.

This section does not prevent any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.

This section does not prevent any health facility from disclosing to a certified bargaining agent relevant financing information pursuant to Section 8 of the National Labor Relations Act (29 U.S.C. Sec. 158).\

SEC. 2.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.

California Constitution Article I – Declaration of Rights

Section 3.

Universal Citation: CA Constitution art I § 3

SEC. 3.

(a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

(b) (1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.

(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.

(5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records.

(6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor does it affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.

(7) In order to ensure public access to the meetings of public bodies and the writings of public officials and agencies, as specified in paragraph (1), each local agency is hereby required to comply with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), and with any subsequent statutory enactment amending either act, enacting a successor act, or amending any successor act that contains findings demonstrating that the statutory enactment furthers the purposes of this section.

(Sec. 3 amended June 3, 2014, by Prop. 42. Res.Ch. 123, 2013.)

https://law.justia.com/constitution/california/article-i/section-3/#:~:text=SEC.,consult%20for%20the%20common%20good.

Obtaining Police Records by State

]]> California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests https://goodshepherdmedia.net/california-supreme-court-rules-text-messages-sent-on-private-government-employees-lines-subject-to-open-records-requests/ Mon, 29 May 2023 12:19:16 +0000 https://goodshepherdmedia.net/?p=10425

Supreme Court Case Regarding Disclosure of Records Contained in Private Accounts

 

On March 2, 2017, the California Supreme Court, in City of San Jose v. Superior Court of Santa Clara County (Smith),[1] held that “when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act (CPRA or Act).” This decision provides a definitive determination on this issue that will significantly impact public agencies.

Factual Background

In 2009, Ted Smith made a CPRA request to the City of San Jose (“City”), seeking 32 categories of public records involving specified persons and issues related to redevelopment efforts in downtown San Jose. Included in the request were requests for voicemails, emails, and text messages sent or received on private electronic devices used by the mayor, members of the city council, and their staffs. The City disclosed communications made using City telephone numbers and email accounts, but did not disclose communications made using the individuals’ personal accounts, taking the position that such items were not “public records” subject to the CPRA.

Smith filed a lawsuit for declaratory relief, arguing that the CPRA’s definition of “public records” encompasses all communications about official business, regardless of how they are created, communicated or stored. The City argued that messages communicated through personal accounts are not public records because they are not within the public entity’s custody or control.

The trial court granted summary judgment in favor of Smith, ordering disclosure of the records sought. The Court of Appeal issued a writ of mandate overturning the trial court’s order, and the Supreme Court granted review.

The Supreme Court’s Decision

After noting that the CPRA and California Constitution strike a careful balance between public access and personal privacy, the Court stated that the issue was narrow: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?” The Court concluded the answer is no — employees’ communications relating to official agency business may be subject to the CPRA regardless of the account utilized in their preparation or transmission. Of course, applicable exemptions (e.g. privacy, the deliberative process privilege, and the statutory exemptions in Government Code §§ 6254 and 6255) continue to apply.

The Court explained that the CPRA’s definition of “public record,”[2] has four aspects: (1) it is “a writing, (2) with content relating to the conduct of the people’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.”

  1. Writing

After setting forth the CPRA’s definition of “writing”[3] and noting that, at the time the CPRA was enacted writings were generally made on paper or another tangible medium, the Court explained that, today, electronic communication, such as email, text messaging, and other electronic platforms, permit writings to be prepared, exchanged and stored more quickly and easily.

  1. Relating to the Conduct of the People’s Business

Next, the Court explained that the second aspect of the definition of “public records” establishes a framework for distinguishing between work-related and purely private communications. Pursuant to the CPRA, the Court noted, to qualify as a public record, a writing must “contain [] information relating to the conduct of the people’s business.” Since the question of whether a writing is sufficiently related to public business is not always clear, the Court explained that resolution of the question, especially when writings are kept in personal accounts, would involve an examination of several factors, such as the content itself, the context in or the purpose for which it was written, the audience to whom the writing was directed, and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.

Although the content of specific records was not before the Court, it clarified that, “to qualify as a public record under the CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the people’s business” noting that, although the standard is broad, it “is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”

  1. Prepared by Any State or Local Agency

Third, the Court held that a writing is “prepared by” the agency even if the writing is prepared using the employee’s personal account.  In other words, a document can be a public record, even if it is solely on the employee’s own computer or phone.

  1. Owned, Use, or Retained by Any State or Local Agency

Fourth, citing section 6253(c) of the Government Code, the Court explained that an agency’s actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose material requested. Nonetheless, the Court explained, “[i]t is a separate and more fundamental question whether a document located outside an agency’s walls, or servers, is sufficiently ‘owned, used, or retained’ by the agency so as to constitute a public record.”  The Court concluded that “documents otherwise meeting CPRA’s definition of ‘public records’ do not lose this status because they are located in an employee’s personal account.”[4] A writing retained by a public employee conducting agency business has been ‘retained by’ the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee’s personal account.”

The Court thus concluded that “a city employee’s communications related to the conduct of the public business do not cease to be public records just because they were sent or received using a personal account. Sound public policy supports this result.”

The Court did not wish to allow government officials to evade the CPRA by merely using a personal account. The Court noted that the “whole purpose” of the CPRA is to “ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”

Court’s Guidance for Conducting Searches

Although the legality of a specific kind of search was not before the Court, the Court provided guidance on how to strike the balance between privacy and disclosure. The Court, noting that agencies are required to disclose records they can locate “with reasonable effort,” first explained that “[r]easonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches.” Next, the Court explained that agencies can adopt their own procedures. Citing general principles that have emerged, the Court stated that, once an agency receives a CPRA request, it must communicate the scope of the information to the custodian of records. Where a request seeks records held in employees’ nongovernmental accounts, the Court explained that “an agency’s first step should be to communicate the request to the employees in question. The agency may then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.”

The Court noted that federal courts applying FOIA have approved of employees conducting their own searches and segregating public records, as long as those employees have been properly trained on how to distinguish between the two. The Washington Supreme Court recently adopted a similar procedure under its public records law, requiring employees who withhold personal records from their employer to submit an affidavit with facts sufficient to demonstrate that the information sought is not a public record under the state’s public records act.  The Court agreed with Washington’s Supreme Court that the procedure, “when followed in good faith, strikes an appropriate balance, allowing a public agency to ‘fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.’”

The Court also noted that “agencies can adopt policies that will reduce the likelihood of public records being held in employees’ private accounts,” such as requiring employees to use or copy their government accounts for all communications relating to public business, citing procedures that federal employees are required to follow to ensure compliance with analogous FOIA requests. Despite its suggestions, the Court expressly noted that it was not holding that any particular search method is required or adequate, but that it was offering suggestions to provide guidance on remand and to explain why privacy concerns do not require categorical exclusion of documents in personal accounts from the CPRA’s “public records” definition.

In conclusion, noting consistency with the legislative purpose of the CPRA and the constitutional requirement to interpret the CPRA broadly in favor of public access, the Court held that “a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.”

HOW THIS AFFECTS YOUR AGENCY

The Supreme Court’s decision makes clear that writings relating to public business may be subject to disclosure under the CPRA, irrespective of whether such writings have been sent, received, or stored in an official’s or employee’s personal account. The Supreme Court provided agencies with some guidance as to how they could comply with requests for writings that may exist on an employee or elected official’s personal communication device or personal communication account.  It is imperative that you contact your agency’s legal advisor to ensure that you have proper policies and procedures in place to comply with the inevitable barrage of CPRA requests that are sure to follow the Supreme Court’s decision on this issue

 

[1] Available at http://www.courts.ca.gov/opinions/documents/S218066.PDF.

[2] Section 6252(e) of the California Government Code defines “public records” to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

[3] The CPRA defines a “writing” as “any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Cal. Gov’t Code § 6252(g).

[4] The Court cited the D.C. Circuit’s construction of the Freedom of Information Act (“FOIA”) in Competitive Enterprise Institute v. Office of Science and Technology Policy, 827 F.3d 145 (D.C. Cir. 2016). For a more detailed summary relating to this case, please see Client Alert Vol. 31, No. 13, authored by Martin J. Mayer and available at www.jones-mayer.com.

source

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California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

California Supreme Court Subjects Private Electronic Accounts to the Public Records Act

On March 2, the California Supreme Court issued its decision in City of San Jose v. Superior Court (2017) S218066, in which it held that City officials were required to publicly disclose work-related electronic communications from their personal electronic accounts and devices. The case involved a private citizen who formally requested numerous records, including emails and text messages “sent or received on private electronic devices used by” the mayor, City Council members and their staff. The City disclosed communications made using official City telephone numbers and email accounts, but did not disclose communications using the individuals’ personal accounts and devices.

The Supreme Court overruled the lower court’s determination that electronic communications relating to the conduct of public business on private accounts were not “prepared, owned … or retained” by the governmental agency and hence subject to disclosure under the California Public Records Act (CPRA). This decision is significant because it concerns how laws originally enacted to cover paper documents apply to evolving methods of electronic communications, while recognizing that, in today’s environment, much employment-related activity occurs outside the conventional workday and the employer-maintained work environment. It establishes for the first time a legal standard of disclosure of work-related communications on personally owned devices or over personal email accounts that will have a significant and far-reaching impact on every public employee in the state of California. The mere act of communicating with other public employees and elected officials via personal electronic devices will need to be considered in the context of this decision.

The Public Records Act

The CPRA (Government Code Section 6250, et seq.) was created in order “to require that public business be conducted ‘under the hard light of full public scrutiny’ and thereby ‘to permit the public to decide for itself whether government action is proper’” (Times Mirror Co. v. Superior Court [1991] 53 Cal.3d 1325, 1350). In creating this act, the California Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state” (Gov. Code, § 6250). Indeed, in 2004, voters codified this principle in the California Constitution by adopting Proposition 59, which stated that “the writings of public officers and agencies shall be open to public scrutiny.” The California Supreme Court subsequently determined that the CPRA creates “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency” (Sander v. State Bar of California [2013] 58 Cal.4th 300, 323).

The California Supreme Court’s Decision

The California Supreme Court framed the legal issue as a narrow one: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?” In answering this question in the negative, the court looked at the language of the CPRA and its intent. It rejected the City’s arguments that personal communications were not “prepared” by the local agency, were not “owned, used, or retained by the local agency” and, thus, were not a “public record” under the CPRA. The Supreme Court concluded (at p. 10) that the CPRA includes not only the governmental entity, but also its individual officers and employees. Moreover, the Supreme Court found that a document is retained by the agency within the meaning of the CPRA, “even if the writing is retained in the employee’s personal account” (Decision, p. 13).

To be subject to disclosure under the CPRA, the records must relate in some substantive manner to the conduct of the public’s business. However, the Supreme Court cautioned (at p. 7) that “This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”

The Impact of the Decision on Public Employees

This decision will have a significant impact on all public employees in the state of California — and most assuredly, peace officers. Pursuant to the CPRA, the public agency has an obligation to search, collect and disclose material requested in a Public Records Act request. Such records would include information in the actual or constructive possession of the agency, and according to this recent decision, public records do not lose their status merely because they are located in an employee’s personal account or on a personal device (e.g., cell phone). Therefore, the decision recognizes the right of the agency to undertake a “reasonable effort” to locate responsive documents to the Public Records Act request, including through the search of an employee’s personal account.

Although the CPRA does not prescribe specific methods of searching for documents, the California Supreme Court explored potential methods to accomplish the search for documents. For instance, the court indicated that agencies could develop internal policies for conducting such searches, or could rely on employees to search their own personal files and devices for responsive materials. Alternatively, the court also suggested that public agencies could develop policies that would reduce the likelihood of public records being held in employees’ private accounts.

The court cautioned, however, that any personal information not related to the conduct of public business or falling under a statutory exemption under the act could be redacted (Gov. Code, § 6253[a]), but that such privacy concerns would need to be addressed on a case-by-case basis. The court also noted the catchall exemption under the CPRA that allows agencies to withhold any record if the public interest served by withholding it clearly outweighs the public’s interest in disclosure (Gov. Code, § 6255[a]). Such an exemption permits a balance between a public’s interest in disclosure and an individual’s privacy interest.

Conclusion

his decision will certainly cause public agencies to examine their policies and practices regarding electronic communications. It may impact the reasonable expectation of privacy a public employee has in a personal device if he or she uses that personal device for official business. Any expectation of privacy must be reasonable (see Hernandez v. Hillsides, Inc. [2009] 47 Cal.4th 272, 287-88), and the United States Supreme Court has held that “Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation” (O’Connor v. Ortega [1987] 480 U.S. 709, 717). Thus, we may see an employer argue that an employee who conducts official business on a personal device or account after this decision should know that such records will be subject to disclosure through the CPRA and, therefore, the employee has a reduced expectation of privacy in the device and the private account in general.

In the wake of this decision, labor organizations and individual employees should anticipate that agencies will likely be adopting policies and procedures respecting searches of private devices and regulating electronic communications. Employee organizations should be vigilant to exercise all applicable meet and confer rights under collective bargaining statutes to ensure that any such agency procedures are consistent with privacy rights established by the United States and California constitutions.

Moreover, the court’s decision should cause every public employee to seriously consider when, how and whether to use their personal communication devices for anything related to the business of the agency they work for. Peace officers in particular should be especially reluctant to use their personal devices and accounts for law enforcement business, as the nature of their work places them at even greater risk of having their cell phones accessed.

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Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

 

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

With the unanimous Supreme Court ruling, California joins other states, including Washington and Florida, and the Federal government in issuing a clear statement that all records regarding government business, even private email or text message accounts, are subject to open records laws.

The ruling may have monetary implications for the City of San Jose; the City may be required to pay the plaintiff’s costs and attorneys’ fees. Also, some states have statutes that include personal fines or criminal penalties for egregious violations of public records laws.

In the City of San Jose v. Superior Court of Santa Clara County, the City of San Jose argued that the City should not be required to disclose communications on the personal phones lines or email accounts of government employees or officials. The City also argued that privacy law protected their employees’ personal text messages and email messages from public disclosure.

Consistent with other states rulings, the California Supreme Court ruled that emails and text message communications are not excluded from disclosure under the California Public Records Act when they are on a personal account or device. Rather, the court ruled that it is the content, not the location of a communication, that determines whether an email or text message is a public record. Like San Jose, many other state and local agencies also assume that privacy law protects communications on employee personal phones or accounts. However, the California Supreme Court specifically held that individual privacy rights are not subservient to public records disclosure.

The rule is clear: all agency communications are subject to open records requests (with limited statutory exceptions) regardless of the channel of communication. The ruling is also consistent with California’s very strong public policy favoring the public’s fundamental right of access to information regarding public matters, as set forth in the CPRA.

3 Tips for Compliant Records Requests Programs after The City of San Jose

Without prescribing a specific policy or procedural framework, the Supreme Court in The City of San Jose discussed how agencies may implement policies to ensure all public records can be produced. So, what policies and procedures should an agency use?

  1. Make Sure Your Record Request Policy is Clear.

Many states, along with California, have held that a record is a public record if it is about public business, no matter where it’s located. Agencies need to review and update the definition of ‘public record’ in their policies and procedure documents. The definition should be stated clearly so government employees and officials understand the agency’s disclosure obligations.

In addition, policy and procedure documents need to make it clear that when there is a request for records which may be located within an employee’s or government official’s private account, the individual must perform a good faith search of their accounts or devices for all public records and sign an affidavit attesting to such search. Here’s sample text for California:

Records Subject to Disclosure. Every record made or received by the Department is presumed to be a public record that members of the public may inspect or obtain a copy upon request.

Records made by Department officials or personnel about Department business, whether within the possession of the Department or not, are presumed to be public records.
Only records that are exempt from public disclosure under federal, state and/or local law may be withheld. Examples of records the Department is prohibited from disclosing or may decline to disclose include: [Department to list statutory exemptions].

  1. Train, Communicate, Repeat.

The League of California Cities provides a resource on the CPRA that public entities may use to train employees and officials. To ensure employees and officials understand the CPRA, it is essential that public entities provide initial, in person training for each employee or official and continue to provide training on an annual basis thereafter. Further, cities, states, and agencies must ensure training includes information about which channels of communication are approved for agency business and which are prohibited. Employees and officials must understand that if they choose to use unapproved channels, such as personal text messages or email accounts, then those accounts may become searchable. In the extreme scenario, personal information may be subject to judicial review to determine whether a record is a public or personal record.

A good training program must be supported by an ongoing communication plan. Agencies must build awareness through repeated intra-agency communications. Agencies may send email updates, newsletter articles, create awareness campaigns, or find other venues to make announcements. Repeated reminders will help build a culture of compliance.

Using the records request process is another way to generate awareness and educate employees and officials. With each record request received by the public entity there is an opportunity to educate employees and officials on the CPRA and an individual’s obligations with respect to the CPRA. Agencies should consider including educational statements with records requests notices. Such statements might say:

The purpose of the California Public Records Act is to ensure transparency in government activities. Records under the California Public Records Act include any record about the business of the [Department]. As a public entity, we are required to produce all records which are responsive to the request and which are not excluded under [applicable statute].

This includes records that may be sent through personal accounts or devices. Government personnel are required to perform a good faith search of their personal accounts or devices for communication related to public business.

  1. Require a Good Faith Search + Employee Affidavit.

The California Supreme Court made it clear that the onus is on the city, state, or agency to ensure production of all responsive records. California is not alone. Many other courts have concluded the same. Cities, states, and agencies need to either ensure their employees are not using unapproved communication channels for public business or they need to update their policies to require a good faith search by employees where appropriate. An employee’s good-faith search for public records on his or her personal device can satisfy an agency’s disclosure obligations under the statute in some states (See Nissen v. Pierce County).

After an employee performs a good faith search, the agency should require the employee to submit an affidavit stating they performed a good faith search of all communication channels and provided all records related to public business. It’s important to note the employee should not determine which records are or are not responsive to the public records request. The employee should produce all records that involve the public entity’s business.

Smarsh Can Help

Public records requests can require a great deal of effort on the part of a public agency, especially if the agency doesn’t have technology in place to help dramatically streamline the process. Agencies are usually required to locate, search, redact, and produce responsive records with limited personnel and budget devoted to handling requests.

The Archiving Platform from Smarsh gives government agencies a centralized platform to manage record requests across the entire range of digital communications, including email, social media, websites, instant messaging and mobile messaging. Agencies can easily search across all communication channels for responsive content and export the content at the click of a button – making the process faster and more efficient for the agency and ultimately the tax payer.

source

Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

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Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

California Supreme Court Rules Public Records Act Covers Government Communications on Private Email and Personal Devices

In a major victory for transparency, the California Supreme Court ruled today that when government officials conduct public business using private email or personal devices, those communications may be subject to disclosure under the California Public Record Acts (CPRA).

In the unanimous opinion, the court overturned an appellate court ruling, writing:

CPRA and the [California] Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account? Considering the statute’s language and the important policy interests it serves, the answer is no. Employees’ communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.

EFF has long been concerned with the potential for officials to hide public records by using private online accounts or personal phones and computers to conduct business.  In this case, activist Ted Smith was seeking records from the City of San Jose that may have been stored in personal devices or accounts. These issues have come up, not only on the local level, but federal as well—all the way up to former Secretary of State Hillary Clinton, who was embroiled in a high-profile scandal over her use of a private email server based out of her home.

EFF joined the ACLU in filing an amicus brief in this case, asking the Supreme Court to overturn an appellate court ruling in favor of the City of San Jose. As we wrote in our opening:

[The court of appeal’s] holding violates both the letter and spirit of the California Public Records Act and Article I, section 3 of the California Constitution by holding that emails related to official business are outside the PRA merely because they are sent and receiving using non-governmental accounts. And the court’s reasoning would allow government officials and employees to circumvent the PRA simply by opening a new browser window and logging into a personal web-based email account as they sit at their government-owned computers. The result would be to curtail if not eliminate public access to informal emails between individual officials and employees and with industry and special interests that provide critical insight into the government operations beyond the often sanitized contents of formal memoranda and bulletins: not just what the government is doing but why it is doing it and at whose behest.

The California Supreme Court pointed out in its ruling that agencies aren’t just disembodied entities, but rather rely on human beings to prepare, retain, or use records: “When employees are conducting agency business, they are working for the agency and on its behalf.”

The court added: “The whole purpose of CPRA is to ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”

While government officials should not be able to use private devices to evade public scrutiny, at the same time, government employees shouldn’t have to forfeit all rights to privacy by holding public office, and their personal communications shouldn’t be subject to search every time someone files a public records request. The court seemed to take this issue into account and provided some guidance on what records on private devices would be subject to disclosure. As the Court wrote in the opinion:

We clarify, however, that to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business. This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records. For example, the public might be titillated to learn that not all agency workers enjoy the company of their colleagues, or hold them in high regard. However, an employee’s electronic musings about a colleague’s personal shortcomings will often fall far short of being a “writing containing information relating to the conduct of the public’s business.”

Ultimately, the Court’s message was clear: if you’re a government official conducting the public’s business, those are public records, no matter where those records are stored. Today’s decision will have wide-ranging impact on how public records are treated throughout the state, whether that’s elected officials communicating with lobbyists through Twitter direct messages or law enforcement officers exchanging controversial text messages on their personal smartphones. The case doesn’t end the discussion, though. We hope it will also trigger policy reforms within agencies to ensure that employees and officials do not use personal communications tools to conduct public business: this requirement would ultimately be the best way to ensure transparency and privacy.

source

Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

 

California Supreme Court Holds Public Records Sent Through Private Email Accounts and Devices May Be Subject to Disclosure

The Supreme Court’s Decision
The Court described the single “narrow issue” in the case: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?”

Noting the competing interests of openness in government and protecting personal privacy, the Court concluded, “Employees’ communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.” The Court made no distinction between the terms employee and official for purposes of the CPRA requirements.

The Court focused primarily on the definition of a “public record” under the CPRA: “(1) a writing; (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” The Court did not address whether any exemptions under the CPRA could apply because the City had not invoked any CPRA exemptions.

With regard to the second element of a public record, its content, the Court clarified that “at a minimum, a writing must relate in some substantive way to the conduct of the public’s business.” This standard, the Court specified, should not be “so elastic as to include every piece of information the public may find interesting.” If a communication is primarily personal in nature, it should not be considered a public record. As an example, a public employee casually discussing a colleague’s “personal shortcoming” through email “will often fall far short” of becoming a public record.

As to the third element, noting that an agency can act only through its individual officers and employees, the Court concluded that if a writing is prepared by an employee, regarding agency business, it is “prepared by” the agency regardless of whether a personal account was used.

The Court interpreted the fourth element to mean that records in the entity’s actual or constructive possession are subject to a CPRA request. An agency has constructive possession of records if it has the right to control them, either directly or through another person. Therefore, the Court held, writings prepared by a public employee regarding agency business are public records, regardless of where they are located.

The Court concluded the Legislature never intended for public officials to have the ability to “shield communications about official business simply by directing them through personal accounts.” Any other interpretation would mean that “sensitive information could routinely evade public scrutiny.”

Practical Effect on Public Agencies
Recognizing that the CPRA does not prescribe specific methods of searching for records, the Court offered agencies limited guidance for complying with the duty to disclose records from private employee accounts or devices. Though the Court did not indicate that following its guidance would guarantee compliance, it noted the two suggestions offered are already being used by federal agencies to respond to requests under the Freedom of Information Act.

First, when faced with a CPRA request seeking records believed to be in an employee’s personal account or device, the agency should communicate the request to that employee. The agency may “reasonably rely” on the employee to search his or her own personal files, accounts, and devices for responsive material. For this procedure to be adequate under the CPRA, the employee must be trained in distinguishing public records from private records. An “employee who withholds a document identified as potentially responsive may submit an affidavit providing the agency, and a reviewing court, ‘with a sufficient factual basis upon which to determine whether contested items were “agency records” or personal materials.’” When an employee makes a good faith effort to comply with the request, the agency fulfills its responsibility to conduct a reasonable search under the CPRA.

Second, the Court suggested that agencies develop policies that reduce the incidence of public records being maintained solely in private accounts and devices. For example, the agency could require that all emails involving agency business, sent by an employee through a private account, be copied to the employee’s agency email account. (See, e.g., 44 U.S.C. § 2911(a) [prohibiting use of personal electronic accounts for official federal agency business unless messages are copied or forwarded to an official account]; 36 C.F.R. § 1236.22(b) [requiring federal agencies to ensure official email messages in employees’ personal accounts are preserved in the agencies’ recordkeeping system].)

This decision is likely to result in many more requests for records that reside on officials’ and employees’ personal devices. To be prepared for these requests, public agencies are advised to promptly adopt the measures suggested by the Supreme Court: (1) training all employees and officials in identifying public records, (2) developing an appropriate affidavit for employees to use, and (3) adopting policies to discourage the use of personal accounts and devices for the conduct of public business. Our team of attorneys can assist any public agency in implementing these measures.

Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Federal Records Act in 2014

The amendments made in the Federal Records Act in 2014 have made the public records request response for government agencies more complex and challenging.

Under the amended law, the scope of “records” now constitutes messages transmitted through electronic communications, such as mobile SMS. With that regard, it has become imperative for public offices to know how to archive text messages. It is imperative not only to meet the retention requirements of FOIA and Sunshine policies but also to instill transparency and trust to the public by being able to respond to public records requests promptly.

Most states also consider text messages and other electronic communications as official business records and, therefore, must be archived and open for the public’s perusal. Just last year, the Texas government passed the Senate Bill 944 into law, declaring that public information held on private devices or in a private account of a public employee or official must be released.

With federal and state mobile text message retention laws, the public has all the rights to request records of government officials’ and employees’ business communications. Failure to ensure timely public records request the response will not only lead to severe backlash from the public, but also compromised critical government data, and even expensive FOIA lawsuits.

Read on as we detail in this infographic the cases where public agencies and offices were requested to produce records of mobile SMS of their employees and officials and the outcome of these requests.

H.R.1233 – Presidential and Federal Records Act Amendments of 2014

Public Law No: 113-187 (11/26/2014)

(This measure has not been amended since it was reported to the Senate on July 23, 2014. The summary of that version is repeated here.)

Presidential and Federal Records Act Amendments of 2014 – (Sec. 2) Amends the Presidential Records Act to require the Archivist of the United States, upon determining to make publicly available any presidential record not previously made available, to: (1) promptly provide written notice of such determination to the former President during whose term of office the record was created, to the incumbent President, and to the public; and (2) make such record available to the public within 60 days, except any record with respect to which the Archivist receives notification from a former or incumbent President of a claim of constitutionally-based privilege against disclosure. Prohibits the Archivist from making a record that is subject to such a claim publicly available unless: (1) the incumbent President withdraws a decision upholding the claim, or (2) the Archivist is otherwise directed to do so by a final court order that is not subject to appeal.

Prohibits the Archivist from making available any original presidential records to anyone claiming access to them as a designated representative of a President or former President if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of the records of the Archives.

Prohibits the President, the Vice President, or a covered employee (i.e., the immediate staff of the President and Vice President or office advising and assisting the President or Vice President) from creating or sending a presidential or vice presidential record using a non-official electronic messaging account unless the President, Vice President, or covered employee: (1) copies an official electronic messaging account of the President, Vice President, or covered employee in the original creation or transmission of the presidential or vice presidential record; or (2) forwards a complete copy of the presidential record to an official electronic messaging account of the President, Vice President, or covered employee not later than 20 days after the original creation or transmission of the presidential or vice presidential record.

(Sec. 3) Provides that the transfer to the Archivist of records by a federal agency that have historical significance shall take place as soon as practicable but not later than 30 years after the creation or receipt of such records by an agency. Expands the authority of the Archivist with respect to the creation and preservation of audio and visual records.

(Sec. 5) Revises the definition of “records” for purposes of this Act to include all recorded information, regardless of form or characteristics. Makes the Archivist’s determination of whether recorded information is a record binding on all federal agencies.

(Sec. 6) Directs the Archivist to prescribe internal procedures to prevent the unauthorized removal of classified records from the National Archives and Records Administration (NARA) or the destruction or damage of such records, including when such records are accessed electronically. Requires such procedures to: (1) prohibit any person, other than personnel with appropriate security clearances (covered personnel), from viewing classified records in any room that is not secure, except in the presence of NARA personnel or under video surveillance, from being left alone with classified records unless under video surveillance, or from conducting any review of classified records while in the possession of any personal communication device; (2) require all persons seeking access to classified records to consent to a search of their belongings upon conclusion of their records review; and (3) require all writings prepared by persons, other than covered personnel, during the course of a review of classified records to be retained by NARA in a secure facility until such writings are determined to be unclassified, are declassified, or are securely transferred to another secure facility.

(Sec. 7) Repeals provisions authorizing the National Study Commission on Records and Documents of Federal Officials.

(Sec. 9) Transfers responsibility for records management from the Administrator of the General Services Administration (GSA) to the Archivist. Requires the transfer of records from federal agencies to the National Archives in digital or electronic form to the greatest extent possible.

(Sec. 10) Prohibits an officer or employee of an executive agency from creating or sending a record using a non-official electronic messaging account unless such officer or employee: (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record, or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record. Provides for disciplinary action against an agency officer or employee for an intentional violation of such prohibition.

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]]> City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees https://goodshepherdmedia.net/city-of-san-jose-v-superior-court-releasing-private-text-phone-records-of-government-employees/ Mon, 29 May 2023 09:12:57 +0000 https://goodshepherdmedia.net/?p=10453 City of San Jose v. Superior Court (Ted Smith)
Releasing Private Text/Phone Records of Government  Employees

City of San Jose v. Superior Court (Ted Smith)

Opinion Summary

Petitioner requested disclosure of thirty-two categories of public records from the City of San Jose, its redevelopment agency and executive director, and other elected officials and their staffs, seeking documents concerning redevelopment efforts in downtown San Jose. Included in the request was emails and text messages sent or received on private electronic devices used by the mayor, two city council members, and their staffs. The City disclosed certain communications but did not disclose communications made suing the individuals’ personal accounts. Petitioner sued for declaratory relief under the California Public Records Act (CPRA), arguing that messages communicated through personal accounts are public records. The trial court granted summary judgment for Petitioner and ordered disclosure. The Court of Appeal, however, issued a writ of mandate. The Supreme Court reversed, holding that a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account. Remanded.

Opinion

H039498

05-17-2017

CITY OF SAN JOSE, et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; TED SMITH, Real Party in Interest.

In this proceeding the City of San Jose (City), the City’s mayor, and members of its city council seek a writ of mandate or prohibition overturning an order that denied their summary judgment motion and granted that of real party Ted Smith, plaintiff in the underlying action. The summary judgment ruling granted declaratory relief to Smith, who had asserted the right to inspect specified written communications (including e-mail and text messages) sent or received by public officials and employees on their private electronic devices using their private accounts. The issue presented is whether those private communications, which are not stored on City servers and are not directly  accessible by the City, are nonetheless “public records” within the meaning of the California Public Records Act (CPRA or the Act) (Gov. Code, § 6250 et seq.).

Also named in Smith’s complaint were the San Jose Redevelopment Agency and Harry Mavrogenes, the agency’s executive director. The Redevelopment Agency, however, was later dissolved and succeeded by the City itself.

This court originally concluded that the Act does not require public access to communications between public officials using exclusively private cell phones or e-mail accounts. Our Supreme Court reversed, holding that a broad construction of the Act is required in light of the purpose underlying its enactment and “our constitutional mandate to interpret the Act broadly in favor of public access. (Cal. Const., art. I, § 3, subd. (b)(2).)” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 629.) The high court thus concluded that “a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.” (Ibid.) The matter was then remanded to this court “for further proceedings” consistent with the Supreme Court’s opinion.

The City’s petition is therefore denied. The temporary stay order is vacated. Costs are awarded to Smith. 

/s/_________

ELIA, J. WE CONCUR: /s/_________
RUSHING, P. J. /s/_________
PREMO, J.

 

source source

 

 

Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

]]> The Use and Abuse of Power by Prosecutors (Justice for All) https://goodshepherdmedia.net/the-use-and-abuse-of-power-by-prosecutors-justice-for-all/ Fri, 26 May 2023 23:10:01 +0000 https://goodshepherdmedia.net/?p=14354

Coerced Out of Justice: How Prosecutors Abuse Their Power to Secure Guilty Pleas

In a first-of-its-kind lawsuit, we’re suing Maricopa County prosecutors to stop them from retaliating against people who assert their rights during plea bargaining.

A prosecutor’s primary duty is “to seek justice … not merely to convict,” according to the American Bar Association. Prosecutors in Maricopa County’s Early Disposition Courts (EDCs) do precisely the opposite. The Maricopa County Attorney’s Office (MCAO) has an iron clad policy of making plea offers in the EDCs “substantially harsher” — their words, not ours — if an accused person seeks a preliminary hearing or rejects a plea offer to go to trial.

This text appears at the top of a form that prosecutors often send to defendants in Maricopa’s Early Disposition Courts.

It doesn’t matter that the preliminary hearing — a defendant’s first opportunity to challenge whether the prosecution has enough evidence to proceed — is a right under the Arizona Constitution, or that the right to trial is enshrined in the Sixth Amendment. It also doesn’t matter if the person simply wants more evidence or is innocent of the crime. This blanket policy applies to every person in the EDCs, regardless of who they are or what they’ve done. It is also unconstitutional, and the ACLU and ACLU of Arizona are suing to stop it.

Unfortunately, if you believe your job is to convict people rather than to seek justice, this policy really gets the job done. Every year, thousands of people waive their rights and plead guilty under the weight of MCAO’s retaliation policy, terrified of receiving that “substantially harsher” offer. Worse yet, line prosecutors openly admit that the purpose of the policy is to extract quick pleas and avoid the hassle of complying with their constitutional obligations.

As one deputy county attorney put it in an email:

The purpose of EDC is to facilitate speedy resolutions … because once the case leaves EDC, MCAO must expend significant resources for trial preparation.

Another was even more blunt:

If we had to collect, review, and produce [body worn camera footage] in every case, or even the subset of cases where the defendant thought there was a legal or factual defense, given the high volume of cases in EDC, it would bog the entire system down.

Never mind that prosecutors accepted these cases from police in the first place, knowing full well they wouldn’t be able to try them while respecting the constitutional protections that defendants are entitled to.

The retaliation policy is particularly galling because Maricopa County initially created the EDCs to quickly move cases involving minor offenses or drug possession through the system and toward drug treatment and other services, in order to avoid convictions. Its website even claims that “most” EDC defendants are diverted. But this is false. MCAO’s own data shows that between 2017 and 2021, less than 7 percent of EDC cases actually ended in diversion.

Instead, MCAO funnels an ever-growing number of people through the EDCs with the express goal of quickly notching felony convictions. It’s important to note that prosecutor-led diversion is no panacea; prosecutors shouldn’t be in charge of things like drug treatment or mental health. However, it’s telling that MCAO says to the public that it supports helping people in need of treatment while quietly, quickly, and illegally convicting those people instead.

It’s clear why Maricopa prosecutors use the retaliation policy so aggressively: It’s in the best interest of prosecutors and their police partners. For example, the policy pressures the accused to waive their preliminary hearing. If MCAO doesn’t have the evidence, the hearing could kill or weaken the case, including by exposing misconduct by, or insufficient evidence from, the police. And even if the defendant doesn’t win the preliminary hearing, prosecutors must start producing more discovery thereafter. As the Arizona Supreme Court noted in 1919, the preliminary hearing exists to protect people from the “unwarranted zeal of prosecuting officers.”

It is little wonder then why MCAO is so fond of this policy: it eviscerates this vital check on their power, saves them work, avoids potential embarrassment, and still leads to convictions. In other words, the retaliation policy is the modern embodiment of the very unwarranted zeal the Arizona high court warned us about a century ago.

We are suing on behalf of all EDC defendants, now and in the future, who are either staring down the barrel of this horrific policy or have already succumbed to the unconstitutional pressure. For example, our client, Michael Calhoun, was arrested and charged for selling $20 worth of methamphetamine. Instead of diverting him into treatment — as MCAO claims is the goal of the EDCs — the office is offering him 10 years in prison. And if Mr. Calhoun rejects the offer or seeks his preliminary hearing, that draconian offer will get “substantially harsher.” He is currently weighing this unconscionable choice, terrified of dying in prison.

Coercive plea bargaining, of course, isn’t unique to Maricopa County, Arizona. Despite the constitutional guarantee of a trial by one’s peers, based on our review of MCAO data the vast majority of people nationwide who are accused of a crime resolve their case by pleading guilty. The U.S. Supreme Court has taken notice: “plea bargaining … is not some adjunct to the criminal justice system; it is the criminal justice system.” State and federal prosecutors around the country have increasingly wielded tools like mandatory minimum sentences, pretrial detention, and aggressive bargaining tactics to scare many of these people into deals they may not have taken otherwise. Coercive plea bargaining also disproportionately impacts poor and minority communities — communities that are already over-targeted by police, and often cannot afford lawyers or cash bail. This is going on everywhere; prosecutors in Maricopa are simply yelling the quiet part out loud. And we heard them.

Eliminating coercive plea bargaining is essential to ending mass incarceration. This case won’t do it alone. We need to push prosecutors and judges to be better; elect ones committed to change; and legislate away their most harmful coercive tools. This case is our first shot across that bow. source

Abuse of Power by Prosecutors

The public is becoming more aware of police abuses of power as coverage of the protests against police brutality continues. More and more people are seeing the excessive use of force wielded on protestors by police firsthand.

Abuses of power don’t just occur in the streets. They also take place in the courtroom.

What Is “Abuse of Power”?

An abuse of power happens when someone in an official position of power takes advantage of that place of privilege illegally and intentionally. When prosecutors abuse their power, it’s known as “prosecutorial misconduct.” This happens when prosecutors break the law or breach a professional code of conduct while working on a case.

Types of Prosecutorial Misconduct

Prosecutors can break the law, engaging in prosecutorial misconduct, in four ways:

  • Offering evidence that they know to be false or “inadmissible” in court
  • Keeping exculpatory evidence hidden from the defense, or “suppressing Brady evidence”
  • Encouraging witnesses to lie on the stand, or “suborning perjury”
  • Prosecutorial bluffing

These four main categories cover many different methods prosecutors may use to abuse their power. Unfortunately, many instances of prosecutorial misconduct go unpunished, even when that misconduct puts innocent people in jail.

What Kind of Power Do Prosecutors Have?

Over the past few decades, prosecutors have been instrumental in accelerating mass incarceration in the U.S. They flood jails with prisoners, exacerbating racial inequality. Prosecutors drive mass incarceration in a few ways, including:

  • Advocating for exorbitant bail amounts – Prosecutors play an oversized role in determining if defendants can put up bail and the amount they must pay. By advocating for bail amounts that are unnecessarily high, prosecutors essentially create a debtor’s prison, letting potentially innocent people sit in prison because they cannot pay their way out.
  • Pushing for harsher charges – Prosecutors have the power to determine the charges defendants face, allowing discriminatory prosecutors to put forth unfairly harsh sentences at will.
  • Plea bargaining – Tough-on-crime laws like mandatory minimum sentences and three-strikes rules incentivize defendants, and disproportionally defendants of color, to plead guilty to lesser charges rather than risk exceptionally high stakes by going to trial even when they are innocent. As such, prosecutors wield exceptional negotiating power. Today, nine out of every ten cases are resolved through plea bargaining.

Prosecutorial Impunity

Unfortunately, prosecutors rarely face consequences for misconduct even when cases are thrown out as a result. Courts frequently grant prosecutors immunity from civil lawsuits, and prosecutors are almost never tried in criminal court for their actions. A 2003 study by the Center for Public Integrity found that 2,012 cases have been thrown out due to misconduct since 1970, yet only 44 of those resulted in any disciplinary consequences for the prosecutor. When they are charged, their punishments are often exceedingly lenient. source

The Use and Abuse of Power by Prosecutors (Justice for All)

This is a time that millions of Americans are righteously speaking out against our greatly flawed system of “criminal justice” (among other things) most recently evidenced by the horrific killing of George Floyd. Most thoughtful Americans recognize that systemic racisms stains nearly the whole fabric of our culture, but it is perhaps nowhere more obvious than in the enforcement of our criminal laws. And while necessarily robust changes may prove hard-won, recognizing and redressing specific flaws now is necessary to effect incremental changes immediately.

The full enforcement of our laws necessarily implicates individual judgments made by women and men who have taken a “sworn oath” which is, at its essence, to “render justice for all.” The color of one’s skin, their religious affiliation, their sexuality, and so on should play no role, in criminal justice since “justice is blind.”

As criminal defense attorneys, we cannot but focus on the roles played by our adversaries: prosecutors.

What Power Do Prosecutors Have?

Prosecutors wield tremendous power. They act as the government—local, state, or national—and bring the weight of that government to criminal charges against individuals and entities, which they do for the explicit purpose of taking away those individuals’ or entities’ liberties, as directed by legislation. They decide whom to charge, how to charge, what sentences the government will seek for their convictions, and what, if any, plea offer will be made. At every turn, the choices made by these women and men carry with them the potential to decimate lives, families, and communities in the pursuit of “justice.”

In making such consequential choices, these women and men are armed with unknowably complex and densely worded criminal codes prescribing the varying extents to which all manner of socially undesirable conduct may be punishable. These mammoth bodies of “criminal conduct” enable prosecutors to charge individuals with a wide array of offenses, often carrying broad degrees of possible if not mandatory punishments, for the same underlying acts. And those multiplicities of available charges and accompanying penalties empower prosecutors to impose truly enormous “trial penalties” on criminal defendants, inflating both the risks of conviction and the costs of defense, thereby distorting both sides of a criminal defendant’s cost-benefit analysis in the face of a potential plea.

And worse still, the wide menu of available charges from which to choose allows prosecutors—however consciously or unconsciously—to effect different results for the same conduct, based upon race, religious affiliation, sexual orientation, perceived social status, wealth, political connections, and all manner of other considerations which have nothing to do with justice.

How Common Is Power Abuse in the Criminal Justice System?

Unfortunately, power abuse is common in the criminal justice system—so much so that there’s a term just for when prosecutors abuse their power. This is called “prosecutorial misconduct.”

Prosecutors’ vast powers and toolkit afford them great discretion with the choices they make in any one case, and this freedom means that their personal idiosyncrasies—whether of duty to fairness, empathy, righteousness, or animus, bias, judgment, or plain weakness—have outsized impacts on how the government will treat a given subject, target, or defendant. This makes possible the aggressive pursuits of marginalized persons in the absence of concrete evidence, as with the Central Park Five, or the securing of soft landings for predacious monsters like Jeffrey Epstein. While such cases may be outlier examples, they are not as uncommon as they should be and they portend to the systemic inequalities which we all know to be true.

While many of these complaints of the criminal justice system might be better lodged upstream with the heavy-handed legislatures for their failure to invent let alone utilize functional means of deterrence other than overly-long prison sentences, prosecutors can scarcely be called innocent and cannot hide behind the shield of “just doing their job” and seeking justice. In many instances, the positions taken by these women and men are at odds with the plain intent of the laws upon which their positions are ostensibly premised, and which fly in the face of their “sworn duty” to seek justice for all.

Prosecutorial Misconduct Has Serious Consequences—for the Defendant

A specific example of this cruel and egregious harshness through choice has arisen in response to the ongoing COVID pandemic and the havoc it is wreaking within federal prisons. Unsurprisingly, the reality of an outbreak within a prison has led many federal inmates to avail themselves of the courts and seek greater safety by asking for early “compassionate release” from incarceration.

Before the enactment of the First Step Act of 2018 (“FSA”), such requests had to be brought by the Bureau of Prisons (“BOP”) on an inmate’s behalf, but the FSA explicitly enabled inmates to do so themselves if the BOP denied or failed to respond within 30 days of their request that the BOP bring that motion on their behalf. However, seemingly in reaction to the onslaught of compassionate release motions in the face of a deadly pandemic, prosecutors in U.S. Attorney’s Offices (“USAOs”) in some districts (including New Jersey), have begun inserting in defendants’ plea agreements language that would significantly impair or waive those defendants’ abilities to bring requests for compassionate release themselves.

Nothing within the meaning of “justice” can explain these waiver clauses. Rather, they seem motivated only by cruelty or a tone-deaf desire to minimize possible future paperwork. If nothing else, these waiver clauses show a clear lack of compassion and appreciation of the possibility that the justice prosecutors purport to serve might one day require an inmate’s compassionate release if faced with significant health or family emergencies which cannot be forecast at the time of sentencing.

Fortunately, defense attorneys and at least one court have recognized this plea language for it what is, a callous indifference to legislative intent and attempted usurpation of courts’ authority to show compassion when tragedy strikes after a defendant’s sentencing.

The observant court is the Northern District of California, which, in last month’s opinion in United States v. Osorto, flatly rejected a signed plea agreement due to its inclusion of the following language:

I agree not to move the Court to modify my sentence under 3582(c)(1)(A) [“compassionate release”] until I have fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring such a motion on my behalf, unless the BOP has not finally resolved my appeal within 180 days of my request despite my seeking review within ten days of each decision.

[U.S. v. Osorto, No. 19-cr-381-CRB-4 at *2 (N.D. Cal. May 11, 2020) (emphasis added).]

The language in the Osorto plea agreement would have added as much as 150 days, and possibly more, to the period an inmate would have had to wait between submitting a compassionate release request to the BOP and ultimately moving the court for the same relief due to the BOP’s failure or refusal to do so. Under the Osorto plea language, if the BOP failed to act on an inmate’s request, as it often does, that inmate, who might be facing an immediate health or family crisis, would have to wait nearly half a year before seeking compassionate release from the courts.

Happily, the Osorto court rejected it, finding that language “unacceptable” since it would “undermine[] Congress’s intent in passing the First Step Act” and was, simply, “inhumane.” Id. *5.

The Orsoto prosecutors should not have needed a federal judge to tell it as much. Compassionate release motions, whether brought by the BOP as originally intended or by an inmate under the FSA, require that the court find that “extraordinary and compelling reasons” warrant modifying or reducing a defendant’s sentence. The plain language of that phrase contemplates changes in circumstances between the time of the motion and the time at which the sentence was originally imposed. These circumstances can be an inmate’s deterioration in health, a family emergency necessitating an inmate’s caretaking and/or income-earning, or, as here, the emergence of a deadly pandemic to which an inmate is acutely susceptible. The USAO’s attempted policy of waiver or delay of these rights pre-sentencing is, as the Osorto court wisely recognized, “appallingly cruel,” id. *8, and akin to a deal with the devil:

It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table. … As to terms such as this one, plea agreements are contracts of adhesion. The Government offers the defendant a deal, and the defendant can take it or leave it. … If he leaves it, he does so at his peril. And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on. … Now imagine the choice the Government has put Funez Osorto to. All that power—and the all too immediate consequences of opposing it—weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass. That Faustian choice is not really a choice at all for a man in the defendant’s shoes. But the Court has a choice, and it will not approve the bargain.

[Id. *9 (citations omitted).]

Sadly, there have been numerous examples of these sorts of plea agreements in the District of New Jersey, and at least some are even worse than Osorto’s, because they entail outright waiver of the right to apply for compassionate release and not just a 150-day delay in exercising it.

These waivers, not yet scrutinized by courts in the District of New Jersey, are yet another unconscionable abuse of prosecutorial choice, plainly evidencing motivations which are utterly at odds with the supposed aim of their offices, which is—not that they ought need be reminded—doing justice.

When Prosecutors Overcharge, Call a Federal Criminal Defense Lawyer

Justice means something other than overcharging defendants to obtain convictions wherever possible and advocating for overlong sentences that will do more harm than good—let alone doing so to differing degrees based upon something like skin color. And while abusive prosecutors share blame with legislatures, law enforcement, and at times even judges and defense attorneys, the women and men who wield the power of prosecution must remain circumspect of their options and the foreseeable impacts of their choices.

They must all remember the “sworn duty” to seek justice for all. If the prosecution in your case has “forgotten” this, we will fight tirelessly to hold them accountable. source

Learn more…

What’s the Difference between Abuse of Process and Malicious Prosecution?

What is Abuse of Process? When the Government Fails Us

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

When The Prosecution Drops Charges

The Primary Caregiver Pretrial Diversion Act – SB 394

What is a pretrial diversion program?

]]> Penal Code 31 PC – Aiding and Abetting Laws https://goodshepherdmedia.net/penal-code-31-pc-california-aiding-and-abetting-laws/ Fri, 26 May 2023 08:51:53 +0000 https://goodshepherdmedia.net/?p=14236 Can You Be Charged For Knowing About A Crime And Not Saying Anything?

If you witness a crime, are you obligated to report it to the police? What if you are aware that a crime is going to be committed, but you do nothing to prevent it from occurring? Can you be criminally charged if you do nothing at all?

crime for knowing about a crime and not saying anything
You could be charged with a crime for knowing about a crime and not saying anything.

Many people are unaware of their legal obligation when it comes to reporting criminal activity. Some don’t want to get involved for fear of becoming a victim themselves. There is always the possibility that you risk harm to yourself or a third party if you divulge information about a crime you suspect has already been committed, or know of before it happens.

Others may feel they have a moral obligation to respond as a Good Samaritan and expose criminals for their wrongdoing. However, there is a big difference between a feeling of ethical responsibility and a legal duty to act.

Generally speaking, most people are under no legal obligation to report a crime, whether they knew about it in advance, witnessed its commission, or found out about it after the fact. However, there are exceptions to this law that you ought to know about.

Let’s take a brief look at some examples of when you can be held liable for having knowledge of a crime…

Aiding And Abetting A Crime (Penal Code Section 31)

In California, you can be charged with the crime that was committed if you aided or abetted in its commission, but did not actually commit the crime yourself. Penal Code section 31 describes the phrase “aiding and abetting” as meaning that you assisted another person to commit a crime. Prosecutors can charge you as an aider and abettor whenever you:

  • Know the perpetrator’s illegal plan,
  • Intentionally encourage and/or facilitate that plan, and
  • Aid, promote, or instigate in the crime’s commission.

You don’t have to be actually present at the scene of the crime to be charged under what is known as “accomplice liability.” If you willfully participated in the planning of a crime prior to its commission, you can be held criminally liable as an “accessory before the fact.”

If you take a passive role during a crime in progress, such as acting as a lookout or disabling a security device, you can be prosecuted as a perpetrator in the second degree (an accomplice).

Finally, if you help to conceal a crime already committed (hiding stolen money or weapons used in the crime’s commission, for example), or give assistance to perpetrators of crime to help them avoid detection, arrest or prosecution, you can be charged as an “accessory after the fact.”

In these situations, you are culpable under the accomplice liability theory because you knew of the illegal plan and willfully did something to cause it to be carried out or concealed. source

Penal Code 31 PC – California Aiding and Abetting Laws

Penal Code § 31 PC is the California statute that addresses aiding and abetting. This is defined as encouraging, facilitating or aiding in the commission of a criminal act. A person who aids and abets a crime faces the same punishment as the one who directly commits the crime.

The language of the statute reads that:

31. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.

Aiding and abetting (also sometimes called accomplice liability) is not a separate crime. Rather, it’s a legal principle set forth in California’s Penal Code that allows the state to prosecute everyone who is “in on” a crime – even if they don’t perpetuate the crime directly.

Example: Alan, Bill and Charlie plan out a bank robbery. Each plays a different role. Alan draws up a diagram of the teller windows and the safes. He gives it to Bill (after which Alan’s role is done). Charlie drives Bill to the bank and waits out front in the getaway car. Bill actually goes in and robs the bank. Bill comes running out with the loot, jumps in the car, and Charlie drives the two of them off.

Technically speaking, only Bill did the actual “robbing.” But prosecutors could charge all three with bank robbery: Bill as the direct perpetrator, Alan and Charlie as aiders and abettors. In Alan’s case, he’s liable for the robbery even though he wasn’t even present at the crime scene.

You can be convicted of a crime under aiding and abetting theory, PC 31, even if you played a fairly insignificant role int he crime. But there must be some type of involvement before you can be convicted. Mere knowledge about the crime or presence at the scene will not suffice. 1, 2

And unlike a conspiracy, there needn’t be a prior agreement to commit the offense…you face liability simply for your voluntary involvement.

Defenses

Typical legal defenses put forward by a California defendant charged as an aider and abettor under Penal Code 31 PC include asserting that he:

  • did not encourage, aid or facilitate the crime’s commission
  • was falsely accused
  • withdrew from participation in the criminal activity
  • was merely present at the scene, or perhaps even had knowledge about the crime, but had no duty to try to prevent its commission
  • only facilitated the crime after its commission (and should face, if anything, the lesser penalties as an “accessory after the fact”).

Penalties for PC 31 Aiding and Abetting

An aider and abettor generally faces the same criminal charges under California’s Penal Code as the direct perpetrator. If convicted, he typically also faces the same penalties.  In a murder case, for example, an aider and abettor typically faces life in prison just as does the one who commits the actual killing.

1. How does California law define aiding and abetting?

The phrase “aiding and abetting” means helping another person commit a crime.  Prosecutors can charge you as an aider and abettor when you

  1. know the perpetrator’s illegal plan,
  2. intentionally encourage and/or facilitate that plan, and
  3. aid, promote, or instigate the crime.4

Despite the fact that it sounds as if you must encourage or promote the criminal activity in advance, that isn’t necessarily the case.  Aiding and abetting may be committed as instantaneously as the crime itself.  If you become aware that a crime is being committed…and at that point, encourage, facilitate or promote its occurrence…the judge or jury can still find you guilty under an accomplice liability theory.5

If you are charged with aiding and abetting under PC 31, the jury will be asked to determine whether you acted knowingly and intentionally.

As far as “encouraging, facilitating or promoting” the offense, there is no requirement that your conduct be a substantial factor in the offense.  “Liability attaches to anyone ‘concerned,’ however slight.”6

Common examples of aiding and abetting a crime include:

  • serving as a lookout,
  • keeping an engine running in a car, or
  • driving the “get-away” car.7

You can also be convicted of Penal Code 31 PC aiding and abetting even if you are legally incapable of committing the actual offense yourself.

Examples:

Aiding and abetting rape

A deputy sheriff ordered a jail inmate to perform oral sex upon another inmate.  He was convicted of violating a California law that specifically prohibits inmates from engaging in oral copulation. In other words, the law makes it a crime for one inmate to engage in oral copulation with another inmate.

The deputy argued that because he was not an inmate, he couldn’t be convicted of this particular crime.  The court disagreed, stating that “Under an aiding and abetting theory, a defendant can properly be convicted of a crime even though by statutory definition the defendant would be incapable of committing the substantive offense by himself”.8Aiding and abetting rape

Similarly, a woman cannot physically rape another woman, as rape necessarily involves intercourse.  However, if a woman encourages a man to rape another woman, serves as a lookout for that man, and/or arranges the meeting of the man and woman in a secluded location so that he can rape her, she could be prosecuted for rape under the accomplice liability theory.

What’s the difference between aiding and abetting? While aiding and abetting may sound like the California crime of conspiracy – and although the two are closely related – “aiding and abetting” under PC 31 and conspiracy are actually two different offenses.  The major difference between the two is that for there to be a conspiracy there must be an agreement to participate in criminal activity.9 Whereas aiding and abetting does not necessarily require an agreement.

You may also find helpful our article on the difference between aiding and abetting.

1.1. When can the prosecutor charge someone as an accomplice?

With respect to the criminal allegation, the prosecutor doesn’t “charge you” with aiding and abetting. Rather, under the California Penal Code, the prosecutor charges you with the underlying crime and presents the case on the theory that you acted as an aider and abettor.10

In determining whether you acted as an accomplice, among the factors to be considered are:

  • “presence at the scene of the crime,
  • companionship, and
  • conduct before or after the offense”.11

Note that these are just some of the factors that help determine whether you should be charged as an accomplice. But they are not conclusive.

1.2. Presence at the crime scene is not necessarily required for aiding and abetting liability

There is no requirement that you be present at the crime scene in order to be convicted under an accomplice liability/aiding and abetting theory.12 Neither must you physically or logistically assist in the commission of the crime. Instigating, encouraging or promoting the crime is sufficient.13 The test under PC 31 is whether you “in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.”14

Example: Defendant was convicted of insurance fraud for filing a false personal injury claim.  The co-defendant, the defendant’s girlfriend, was the one who actually forged the necessary signatures and filed the claims.  The defendant knew the fraudulent claims had been filed and blatantly lied to the insurance investigator, saying he had received medical treatment (which he hadn’t) and that he had to take time off work (which he didn’t).  The defendant argued that because he didn’t actually assist in filing the fraudulent paperwork, there was no accomplice liability.

The court disagreed.  It held that because defendant knew about the claims that were fraudulently filed on his behalf – and therefore had knowledge about the perpetrator’s plan and encouraged its commission by lying, thus intending to defraud the insurance company – he was properly convicted on an aiding and abetting theory. This was the case despite the fact that he did not physically participate in the crime.15

1.3. Knowledge alone isn’t sufficient to be guilty of aiding and abetting

Simply knowing that the crime is about to be (or is being) committed and failing to report it or prevent it generally isn’t enough in and of itself to sustain a conviction for aiding and abetting.16 However, if you have a legal duty to take every step reasonably possible to prevent the crime…and fail to do so…you could be convicted as an aider and abettor.

Just knowing about a crime beforehand is not enough to make you guilty of aiding and abetting under California’s Penal Code.

This “legal duty” is only imposed on certain people under specific conditions.  For example, teachers, doctors and certain other professionals have a legal duty to report abuse or other suspected criminal activity.  And, in California, parents have a legal duty to “exercise reasonable care, supervision, protection, and control over their minor children”.17

So if you have a legal duty to try to prevent a crime – but do not reasonably attempt to do so – you could face accomplice liability under Penal Code 31 PC.

Example: Defendant was convicted of committing lewd acts on a minor as an aider and abettor.  The prosecutor presented evidence that the defendant stood by and watched her boyfriend molest her 4-year-old daughter on more than one occasion.

The defendant argued that because she didn’t encourage or participate in the lewd acts on the minor, she shouldn’t be liable as an accomplice.  However, the court ruled that the defendant/mother’s presence, in itself, assisted the boyfriend, since her presence not only encouraged the boyfriend to continue molesting her daughter but also encouraged her daughter to comply rather than resist.

Moreover, the court held that because the defendant had a legal duty to act (to protect her child)…yet failed to do so…she was properly convicted under an aiding and abetting theory.18

2.4. You had no duty to act

It bears repeating that even if you know that a crime is going to be committed…but do nothing to prevent its occurrence…you are not guilty of being an aider and abettor under Penal Code 31 unless you have a legal duty to act.

And because legal duties are so few and far between — since they must be specifically conferred upon you by a law — they will not come into play very often.

As a result, mere knowledge of the underlying crime will not typically be enough to convict you as an aider and abettor.21

2.5. You only facilitated the crime after its commission

If you do help facilitate the crime…but only after it is over…you are not an aider and abettor.  You may, however, be an accessory after the fact. (In contrast, aiding and abetting is sometimes called being an accessory before the fact.) Accessories after the fact are not treated in the same manner as accomplices under PC 31, but are instead treated as “obstructers of justice”.22

Consequently, if you are convicted of being an accessory after the fact, you will most likely face a much lesser penalty than you would as an accomplice to the crime.  An aider and abettor to carjacking, for example, faces up to 9 years in prison (just as does the actual perpetrator). Whereas the maximum penalty for being an accomplice after the fact is three years in the California state prison.23

3. How is aiding and abetting a crime punished?

Each individual convicted of aiding and abetting under the California Penal Code will be regarded as a “principal” to the crime and is subject to the same penalties and consequences as if he/she personally committed the offense.24

Under Penal Code 31, you face the same penalties for aiding and abetting as you do for directly committing the crime.

The only exception to this rule applies to murder prosecutions, discussed in the next section.25

3.1. Accomplice liability for murder

As the Supreme Court of California recognized, in some situations, an aider and abettor may be guilty of a greater homicide-related offense than the actual perpetrator, since defenses or extenuating circumstances may exist that are personal to the actual perpetrator and do not apply to the aider and abettor.26

Example:  Two defendants fire shots in a drive-by shooting. Only one defendant fires the shot that actually kills the victim.  He is labeled the perpetrator, and the other defendant …who was riding in the passenger seat…is labeled the “aider and abettor”.

If, for example, the perpetrator proves that he only fired that shot in
self-defense, his charge would be reduced to
voluntary manslaughter or possibly even dismissed.  However, the second defendant (the aider and abettor)…who still shot at and intended to kill the victim in the drive-by shooting…could still be convicted of murder.27

3.2. Natural and probable consequences

Aiders and abettors under PC 31 are not only equally responsible for the perpetrator’s intended criminal activity. They are also equally responsible for any crimes that are the natural and probable consequences of that original crime.28

“Natural and probable consequences” are foreseeable consequences given all the surrounding circumstances.29 Whether a further crime is a “natural and probable consequence” of the original planned crime is a question that the jury must answer.30

Example: The defendant was in charge of driving the “get-away” car after the perpetrator robbed a jewelry store.  The perpetrator entered the store wearing a ski parka with a hood and sunglasses and carrying a brown paper bag that held a pillow.

While in the store, the perpetrator shot an employee in the face, and then shot and killed the store owner.  The defendant argued that he should not suffer accomplice liability for murder and attempted murder because he did not share in the perpetrator’s intent to kill either victim.

The court disagreed.  It reasoned that “to ‘share’ the perpetrator’s intent does not mean that the aider and abettor is prepared to commit the offense by his own act.  All that is needed is a knowing intent to assist the perpetrator’s commission of the crime.  Once that intent is formed, the liability of an aider and abettor ‘extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages’”.

When the perpetrator entered the store with a gun and a pillow to muffle the sound of possible gunfire, the shootings were indeed a natural and probable consequence of the robbery itself.31

Legal References:

  1. California Penal Code 31 – Principals, defined [California Penal Code section on aiding and abetting].  (“All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”)California Jury Instructions – Criminal “CALJIC” 3.01 — Aiding and Abetting.  (“A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice, [or, by failing to act in a situation where a person has a legal duty to act,] aids, promotes, encourages or instigates the commission of the crime. [A person who aids and abets the [commission] [or] [attempted commission] of a crime need not be present at the scene of the crime.] [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.] [Mere knowledge that a crime is being committed and [in the absence of a legal duty to take every step reasonably possible to prevent the crime,] the failure to prevent it does not amount to aiding and abetting.]”)
  2. See same.
  3. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
  4. See CALJIC 3.01, Aiding and Abetting, endnote 1, above.
  5. People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 751-752.  (“Contrary to defendant’s assertion, advance knowledge is not a prerequisite for liability as an aider and abettor. “Aiding and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as the criminal act itself. [Citation.]” ( People v. Nguyen (1993) 21 Cal.App.4th 518, 532, 26 Cal.Rptr.2d 323.) In People v. Cooper (1991) 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742 ( Cooper ), the court held that “a getaway driver who has no prior knowledge of a robbery, but who forms the intent to aid in carrying away the loot during such asportation, may properly be found liable as an aider and abettor of the robbery.” ( Id. at p. 1161, 282 Cal.Rptr. 450, 811 P.2d 742.) The court reasoned that “the commission of robbery continues so long as the loot is being carried away to a place of temporary safety.” ( Id. at p. 1170, 282 Cal.Rptr. 450, 811 P.2d 742; see also People v. Montoya (1994) 7 Cal.4th 1027, 1039, 31 Cal.Rptr.2d 128, 874 P.2d 903 [upholding burglary conviction for aider and abettor who did not have knowledge of criminal purpose until after entry].)”)
  6. People v. Durham (1969) 70 Cal.2d 171, 185, fn. 11.
  7. People v. Masters (1963) 219 Cal.App.2d 672, 680.
  8. People v. Fraize (1995) 36 C.A.4th 1722.
  9. California Penal Code 182 PC – Conspiracy.See also California Penal Code 184 PC – Conspiracy; overt act.
  10. California Penal Code 971 PC — Abrogation of distinction between accessories and principals, and between principals in first and second degree; effect upon pleadings.
  11. People v. Singleton (1987) 196 Cal.App.3d 488, 492.
  12. See CALJIC 3.01 — Aiding and Abetting, endnote 1, above.
  13. People v. Booth (1996) 48 Cal.App.4th 1247, 1256.  (“While accomplice liability cannot be predicated on conduct absent the required mental state, one can be guilty as an accomplice (if he shares the goal of the perpetrator) without having actually assisted the commission of the offense, e.g., by “instigating,” or “advising” the perpetrator to commit it or by having been “present for the purpose of its commission.” (See Campbell, supra, 25 Cal.App.4th at p. 411, and cases cited.)”)
  14. People v. Villa (1957) 156 Cal. App. 2d 128, 133.
  15. People v. Booth, endnote 13, above.
  16. See CALJIC 3.01 — Aiding and Abetting, endnote 1, above.  (“[Mere knowledge that a crime is being committed and [in the absence of a legal duty to take every step reasonably possible to prevent the crime,] the failure to prevent it does not amount to aiding and abetting.]”)
  17. Penal Code 272 PC California’s contributing to the delinquency of a minor law, section (a)(2).
  18. People v. Swanson-Birabent, endnote 5, above.
  19. Riverside criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.
  20. CALJIC 3.03 — Termination of Liability of Aider and Abettor.
  21. In re Michael T. (1978) 84 Cal.App.3d 907, 911.  (“Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”)
  22. People v. Montoya (1994) 7 Cal.4th 1027, 1039, footnote 7.  (“[I]n accord[ ] with the clear trend, the accessory after the fact is no longer treated as a party to the underlying felony, as at common law. This kind of accessory is coming to be recognized for what he is: an ‘obstructer’ of justice, the author of a separate and independent offense.””)
  23. California Penal Code 32 – Accessories, punishment.  (“Except in cases where a different punishment is prescribed, an accessory is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”)
  24. California Penal Code 31 – California Penal Code section on aiding and abetting, endnote 1 above.See also People v. Green (1950) 96 Cal.App.2d 283, 290. (“”Where persons are not actors in the actual commission of the crime charged, but aid and abet others in its commission or procure others to commit the crime, all are equally guilty.”)
  25. CALJIC 3.00 Principals-Defined.
  26. People v. Mccoy (2001) 25 Cal.4th 1111, 1122.  (“We thus conclude that when a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s own mens rea. If that person’s mens rea is more culpable than another’s, that person’s guilt may be greater even if the other might be deemed the actual perpetrator. Because we cannot anticipate all possible nonhomicide crimes or circumstances, we express no view on whether or how these principles apply outside the homicide context. (See Dressler, Understanding Criminal Law, supra, § 30.06[C], pp. 450-451.)”)
  27. Facts taken from same.
  28. People v. Coffman (2004) 34 Cal.4th 1, 106-107.  (“Elaborating on the natural and probable consequences doctrine, in People v. Prettyman (1996) 14 Cal.4th 248, 261, 58 Cal.Rptr.2d 827, 926 P.2d 1013, and People v. Croy (1985) 41 Cal.3d 1, 12, footnote 5, 221 Cal.Rptr. 592, 710 P.2d 392, we observed that an aider and abettor “is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.” As the Court of Appeal in People v. Brigham (1989) 216 Cal.App.3d 1039, 265 Cal.Rptr. 486 noted, although variations in phrasing are found in decisions addressing the doctrine-“probable and natural,” “natural and reasonable,” and “reasonably foreseeable”-the ultimate factual question is one of foreseeability. ( Id. at pp. 1050, 1054, 265 Cal.Rptr. 486; see People v. Roberts (1992) 2 Cal.4th 271, 316-322, 6 Cal.Rptr.2d 276, 826 P.2d 274.) “A natural and probable consequence is a foreseeable consequence…””)See also CALJIC 3.02 Principals-Liability for Natural and Probable Consequences.
  29. See both cites, endnote 28, above.
  30. People v. Godinez (1992) 2 Cal.App.4th 492, 499.  (“The parties agree the liability of an aider and abettor [as set forth in California Penal Code 31 PC] is not limited to the target crime which he knowingly and intentionally aids and encourages, but can include crimes committed by the perpetrator which are natural and reasonable consequences of the criminal course of conduct the aider and abettor knowingly aids and encourages. ( People v. Jones (1989) 207 Cal.App.3d 1090, 1095-1096 [ 255 Cal.Rptr. 464].) It is now settled that it is a question of fact whether the charged offense was a natural and reasonable consequence of the target offense knowingly encouraged, and the jury should be instructed of its responsibility to determine this factual issue.”)
  31. People v. Hammond (1986) 181 Cal.App.3d 463.
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